Benjamin, J.
In this habeas corpus proceeding, treated by the Special Term, upon consent, as an application to modify the custodial provisions contained in the parties’ judgment of divorce, the court transferred from the mother to the unmarried father the custody of their two infant children (ages six and nine) who previously thereto had continuously resided with their mother since birth.
The issue presented is whether the court’s determination, cloaked in the rubric “ best interests of the child ”, was, in fact, based upon its subjective moral judgment rejecting and in effect severely punishing this sexually-liberated divorced woman for her “ life-style ” and personal beliefs.
The pertinent facts are that the parties were married in April, 1962, when she was 18 and he was 19 years of age. During the marriage the husband, who supplemented his income as a part-time musician frequently entertaining at “ singles dances ”, was himself involved in several extramarital affairs. In July, 1970 the wife obtained a divorce based upon his cruel and inhuman treatment and, pursuant to the parties’ separation agreement, was awarded custody of their two minor children. Subsequent to her divorce the former wife began dating an individual who she later learned was married but with whom she nevertheless continued to socialize.
In August, 1973 the former husband brought this proceeding, in habeas corpus, seeking custody of the children, alleging in his petition, inter alia, that on a visit to his former wife’s home he observed on her night table a copy of Screw magazine (a publication which in my opinion possesses dubious redeeming social value) and, additionally, that he found letters (some with explicit photographs attached) upon the dining room and kitchen tables addressed to a post office box. The letters were in response to an advertisment placed by his former wife and her male companion in Screw magazine. The advertisement solicited responses from “ other * * * couples or groups * * * for fun & games. ”
At the hearing which was held upon the petition the former wife admitted placing the advertisement but stated that it was done merely for “ kicks ”, an apparent reference to the bizarre responses which the advertisement elicited. However, and this is the important point, the evidence upon the hearing established that the mother’s private sex life in no way involved or affected the children (under cross-examination the father acknowledged that the children never saw or commented upon the offensive material referred to in his petition). Moreover the evidence [322]*322established that the children were well provided for both emotionally and physically (in fact both youngsters were elected as class officers in school), that the atmosphere of the mother’s home was happy and cheerful and the premises well kept and comfortable and that the mother was sincerely concerned and devoted to the children and bestowed upon them an abundance of love and care. In fact the Special Term never found the mother to be “ unfit ”, but based its decision to transfer custody on a subjective evaluation of her ££ life-style ” as indicated by the following excerpt from its decision: “ The record, and exhibits indicate her desire to experiment sexually. It cannot be that the best interests and welfare of the two impressionable children of the marriage will be best served by. awarding their custody ‘ to one who proclaims, and lives by, such extraordinary ideas of right conduct. ’ (Bunim v. Bunim, 298 N. Y. 391, 394) ”.
In my opinion, amorality, immorality, sexual deviation and what we conveniently consider aberrant sexual practices do not ipso facto constitute unfitness for custody. In the instant case, assuming arguendo the complete truth of the father’s petition, the total evidence of exposure of the children to the “ swinging ” practices of the mother is the inadvertent presence on two tables of letters in answer to the above-mentioned advertisement. By its decision herein the trial court stated, in effect, that all fathers and mothers who participate in this culture of ‘ ‘ free sex ’ ’ are unfit parents. The logical extension of the rationale of the trial court’s position is to place the children of “ swinging ” couples in foster homes or orphanages. I cannot subscribe to such a, proposition.
Additionally, during the course of the hearing it became increasingly apparent that the former wife’s interest in sexually oriented literature was considered a determining factor militating against her continued custody of her children. At one point during the hearing the court queried: £ ‘ Did you ever have Playboy Magazine in your house? the witness: Yes * * *. the court: Playboy? ” At another point the former husband’s attorney read into the record a statement detailing the alleged evils of pornography by former FBI Director J. Edgar Hoover.
Although the contents of Screw magazine may be offensive to some, I am of the opinion that the courts are constitutionally prohibited from taking any punitive measures calculated to inhibit or restrict an individual from reading any matter in the privacy of his or her own home. In Stanley v. Georgia (394 U. S. 557) the Supreme Court held that the First and Fourteenth [323]*323Amendments prohibit making the mere private possession of obscene material a crime. In Stanley the Supreme Court stated, with respect to a person’s right to privacy, the following (pp. 56L-565):
‘1 For also fundamental is the right to be free, except in very limited circumstances, from unwanted governmental intrusions into one’s privacy. * *
“ These are the rights that appellant is asserting in the case before us. He is asserting the right to read or observe what he pleases — the right to satisfy his intellectual and emotional needs in the privacy of his own home. He is asserting the right to be free from state inquiry into the contents of his library. Georgia contends that appellant does not have these rights, that there are certain types of materials that the individual may not read or even possess. Georgia justifies this assertion by arguing that the films in the present case are obscene. But we think that mere categorization of these films as ‘ obscene ’ is insufficient justification for such a drastic invasion of personal liberties guaranteed by the First and Fourteenth Amendments. Whatever may be the justifications for other statutes regulating obscenity, we do not think they reach into the privacy of one’s own home. If the First Amendment means anything, it means that a State has no business telling a man, sitting alone in his own house, what books he may read or what films he may watch. Our whole constitutional heritage rebels at the thought of giving government the power to control men’s minds.”
In my opinion the right of a divorced woman to engage in private sexual activities, which in no way- involve or affect her minor children, is within the penumbra of that yet ill-defined area of privacy mandated by the specific guarantees of the Bill of Rights (cf. Griswold v. Connecticut, 381 U. S. 479). In Griswold the Supreme Court stated (p. 483): “The First Amendment has a penumbra where privacy is protected from governmental intrusion.
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Benjamin, J.
In this habeas corpus proceeding, treated by the Special Term, upon consent, as an application to modify the custodial provisions contained in the parties’ judgment of divorce, the court transferred from the mother to the unmarried father the custody of their two infant children (ages six and nine) who previously thereto had continuously resided with their mother since birth.
The issue presented is whether the court’s determination, cloaked in the rubric “ best interests of the child ”, was, in fact, based upon its subjective moral judgment rejecting and in effect severely punishing this sexually-liberated divorced woman for her “ life-style ” and personal beliefs.
The pertinent facts are that the parties were married in April, 1962, when she was 18 and he was 19 years of age. During the marriage the husband, who supplemented his income as a part-time musician frequently entertaining at “ singles dances ”, was himself involved in several extramarital affairs. In July, 1970 the wife obtained a divorce based upon his cruel and inhuman treatment and, pursuant to the parties’ separation agreement, was awarded custody of their two minor children. Subsequent to her divorce the former wife began dating an individual who she later learned was married but with whom she nevertheless continued to socialize.
In August, 1973 the former husband brought this proceeding, in habeas corpus, seeking custody of the children, alleging in his petition, inter alia, that on a visit to his former wife’s home he observed on her night table a copy of Screw magazine (a publication which in my opinion possesses dubious redeeming social value) and, additionally, that he found letters (some with explicit photographs attached) upon the dining room and kitchen tables addressed to a post office box. The letters were in response to an advertisment placed by his former wife and her male companion in Screw magazine. The advertisement solicited responses from “ other * * * couples or groups * * * for fun & games. ”
At the hearing which was held upon the petition the former wife admitted placing the advertisement but stated that it was done merely for “ kicks ”, an apparent reference to the bizarre responses which the advertisement elicited. However, and this is the important point, the evidence upon the hearing established that the mother’s private sex life in no way involved or affected the children (under cross-examination the father acknowledged that the children never saw or commented upon the offensive material referred to in his petition). Moreover the evidence [322]*322established that the children were well provided for both emotionally and physically (in fact both youngsters were elected as class officers in school), that the atmosphere of the mother’s home was happy and cheerful and the premises well kept and comfortable and that the mother was sincerely concerned and devoted to the children and bestowed upon them an abundance of love and care. In fact the Special Term never found the mother to be “ unfit ”, but based its decision to transfer custody on a subjective evaluation of her ££ life-style ” as indicated by the following excerpt from its decision: “ The record, and exhibits indicate her desire to experiment sexually. It cannot be that the best interests and welfare of the two impressionable children of the marriage will be best served by. awarding their custody ‘ to one who proclaims, and lives by, such extraordinary ideas of right conduct. ’ (Bunim v. Bunim, 298 N. Y. 391, 394) ”.
In my opinion, amorality, immorality, sexual deviation and what we conveniently consider aberrant sexual practices do not ipso facto constitute unfitness for custody. In the instant case, assuming arguendo the complete truth of the father’s petition, the total evidence of exposure of the children to the “ swinging ” practices of the mother is the inadvertent presence on two tables of letters in answer to the above-mentioned advertisement. By its decision herein the trial court stated, in effect, that all fathers and mothers who participate in this culture of ‘ ‘ free sex ’ ’ are unfit parents. The logical extension of the rationale of the trial court’s position is to place the children of “ swinging ” couples in foster homes or orphanages. I cannot subscribe to such a, proposition.
Additionally, during the course of the hearing it became increasingly apparent that the former wife’s interest in sexually oriented literature was considered a determining factor militating against her continued custody of her children. At one point during the hearing the court queried: £ ‘ Did you ever have Playboy Magazine in your house? the witness: Yes * * *. the court: Playboy? ” At another point the former husband’s attorney read into the record a statement detailing the alleged evils of pornography by former FBI Director J. Edgar Hoover.
Although the contents of Screw magazine may be offensive to some, I am of the opinion that the courts are constitutionally prohibited from taking any punitive measures calculated to inhibit or restrict an individual from reading any matter in the privacy of his or her own home. In Stanley v. Georgia (394 U. S. 557) the Supreme Court held that the First and Fourteenth [323]*323Amendments prohibit making the mere private possession of obscene material a crime. In Stanley the Supreme Court stated, with respect to a person’s right to privacy, the following (pp. 56L-565):
‘1 For also fundamental is the right to be free, except in very limited circumstances, from unwanted governmental intrusions into one’s privacy. * *
“ These are the rights that appellant is asserting in the case before us. He is asserting the right to read or observe what he pleases — the right to satisfy his intellectual and emotional needs in the privacy of his own home. He is asserting the right to be free from state inquiry into the contents of his library. Georgia contends that appellant does not have these rights, that there are certain types of materials that the individual may not read or even possess. Georgia justifies this assertion by arguing that the films in the present case are obscene. But we think that mere categorization of these films as ‘ obscene ’ is insufficient justification for such a drastic invasion of personal liberties guaranteed by the First and Fourteenth Amendments. Whatever may be the justifications for other statutes regulating obscenity, we do not think they reach into the privacy of one’s own home. If the First Amendment means anything, it means that a State has no business telling a man, sitting alone in his own house, what books he may read or what films he may watch. Our whole constitutional heritage rebels at the thought of giving government the power to control men’s minds.”
In my opinion the right of a divorced woman to engage in private sexual activities, which in no way- involve or affect her minor children, is within the penumbra of that yet ill-defined area of privacy mandated by the specific guarantees of the Bill of Rights (cf. Griswold v. Connecticut, 381 U. S. 479). In Griswold the Supreme Court stated (p. 483): “The First Amendment has a penumbra where privacy is protected from governmental intrusion. In like context, we have protected forms of 1 association ’ that are not political in the customary sense but pertain to the social, legal, and economic benefit of the members.” The courts have on occasion recognized the right of an unmarried male to engage in extramarital sexual relations without being branded a “social leper”, and there appears to be no rational basis to impose a more stringent standard upon a divorced woman. In Schmidt v. United States (177 F. 2d 450, 452), Judge Learned Hand stated: “We have answered in the negative the question whether an unmarried [324]*324man must live completely celibate, or forfeit his claim to a ‘ good moral character ’ ”.
Here it should be noted that Bunim v. Bunim (298 N. Y. 391, supra), relied upon by the Special Term, involved repeated adulterous acts by a married woman and is therefore inapposite to the instant case, which involves the activities of a divorced woman. The law is well established that even adulterous acts do not ipso facto present a sufficient basis for denying continued custody to a mother (Matter of Rodolfo “ CC ” v. Susan “ CC ”, 37 A D 2d 657; Sheil v. Sheil, 29 A D 2d 950; see, also, Matter of Raya, 255 Cal. App. 2d 260; 15 N. Y. Jur., Domestic Relations, § 355; 2 Foster-Freed, Law and the Family, § 29:8; Boardman’s New York Family Law, § 276). In the case of Matter of Rodolfo “ CC ” v. Susan “ CC ” supra, p. 657), the court stated, as here pertinent: “As for appellant’s moral conduct, while there is proof that men on occasion remained overnight in appellant’s apartment while Robert was present and with his apparent knowledge, there is no showing that appellant was guilty of such gross moral turpitude as would render her unfit for custody particularly since there is no showing that such conduct was actually affecting Robert’s upbringing ”.
In the instant case our sole concern is for the best interests of the children (Domestic Relations Law, §§ 70, 240). As both children have resided with the mother since birth, a change of custody at this late date should not be made unless there is a showing that she is unfit to continue as the custodial parent (Aberbach v. Aberbach, 33 N Y 2d 592; Nierenberg v. Nierenberg, 43.A D 2d 717; Matter of Lang v. Lang, 9 A D 2d 401, affd. 7 N Y 2d 1029; People ex rel. Bruen v. Bruen, 38 A D 2d 725; Schuler v. Schuler, 29 A D 2d 669; Matter of Metz v. Morley, 29 A D 2d 462). The facts of the instant case parallel in pertinent aspects those of Nierenberg (supra, pp. 717-718), where we stated in our opinion: ‘ ‘ Custody of this child of tender years has been in the mother pursuant to a separation agreement which became incorporated into a foreign decree of divorce in 1969. The Family Court specifically found the mother not to be unfit. We have reviewed the record and found that the mother is neither unfit nor less fit than the father. Under these circumstances, it was error for the Family Court to change custody to the father ’ ’.
In this case the father, to whom the court awarded custody, is not presently remarried and lives in a room in his parents’ apartment. He is employed on a full-time basis during the day and the record indicates he works on the average of two [325]*325nights per week as a musician. The traumatic psychological dislocation which these two children of tender years would suffer from the change of custody ordered by the trial court would render them tragic casualties of this marital conflict.
The order under review should be modified, on the law and the facts, by striking therefrom all the decretal provisions other than the one which awarded a counsel fee and substituting therefor a provision denying the petition; and, as so modified, the order should be affirmed, without costs.