Mandelstam v. Mandelstam

458 S.W.2d 786

• Court: Court of Appeals of Kentucky (pre-1976)
• Decided: October 28, 1970
• Status: Published

Opinions

CULLEN, Commissioner.

In divorce proceedings between Marilyn H. Mandelstam and Paul Mandelstam the primary issue concerned the custody of their six-year-old daughter, Deborah. The chancellor found that it would be in the child’s best interests for neither parent to have custody and that custody be placed in a third party. Accordingly, in the judgment in the action (which granted the divorce to the wife), the custody of Deborah was awarded to the rabbi of a local Jewish temple and his wife, who had children with whom Deborah was friendly and who were well acquainted with the Mandelstams (who are of Jewish faith). Paul and Marilyn each was given the right of separate day-time visitation once a week, and the right to have the child for a two-week period in the summer. The rabbi and his wife were made parties to the action and the .award of custody was made subject to further control by the court.

Paul has appealed, maintaining that the trial court correctly denied custody to Marilyn, but erred in denying custody to him. Marilyn’s position on Paul’s appeal is that the judgment is correct to the extent that it awards custody to Rabbi and Mrs. Lef-fler instead of to Paul, but she has cross-appealed, asserting that the judgment is in error in not awarding custody to her.

We shall first dispose of Marilyn’s cross-appeal.

“The chancellor found that Marilyn has a severe mental condition in that she suffers from an obsessive, compulsive, neurotic disorder, by reason of which it would not be in the best interests of Deborah for her to remain with her mother. We find ample evidence in the record to support the findings. So we are affirming the judgment on the cross-appeal.”

On the direct appeal, Paul’s contentions are (1) the chancellor’s findings of fact are insufficient because they do not include the requisite specific finding that Paul is unfit to such an extent as to justify awarding custody of his child to strangers; and (2) even if the findings were considered by implication to include the requisite finding of unfitness, the evidence will not support such finding.

The findings of fact included the ultimate finding that it would be “in the best interest of the child to place her custody in a third party,” and made several findings concerning the father’s character, conduct and qualities, but did not find in so many words that the father was “unfit” to have custody. Paul argues strongly that such a finding is essential, relying particularly on Reynardus v. Garcia, Ky., 437 S.W.2d 740. In considering this argument we are led into the field of semantics. In the vocabulary of child custody cases the most often used terms are “unfit,” “unsuitable,” “unqualified,” “best interests,” and “welfare.” We conceive that in their application to a case involving the taking of custody from a natural parent and awarding it to a stranger they all lead to the expression of the same basic concept. The concept is that if the natural parent is not capable of providing for the child minimum acceptable standards of care¹ he is to be deemed “unfit,” “unsuitable” or “unqualified,” and his having custody will be deemed to be not in the “best interests” of the child or for the child’s “welfare.”² We think the problem in this case arises from the use of the term “best interests,” which is suggested of denoting the superlative of “good interests” and thus may be interpreted as indicating that what is called the child’s “best” interest is simply something a little better than some lesser but perfectly good and acceptable interest. We believe, however, that in child custody cases the term “best interests” has acquired a special meaning; and when used in cases involving the taking of custody from a natural parent and giving it to someone else it means the opposite of being detrimental or harmful to the child’s interests rather than indicating the top among several perfectly acceptable choices.

It is our opinion, therefore, that when the chancellor found in the instant case that it would be in the “best interests” of the child for neither parent to have custody, the finding was in substance and effect that neither parent was “fit” or “suitable” for the custody, such that it would be detrimental to the child for either parent to have custody. That such was the intent of the finding is evident from the context as a whole and particularly from a specific finding that if the child were placed in the custody of either parent she would be compelled to live in a “weird, abnormal, bizarre atmosphere.”

We do not interpret Reynardus as holding that the finding of a parent’s unfitness must use the specific word “unfit.” While certainly that would be preferable, we see no reason why the finding cannot be expressed by use of other terms. (Actually, the situation found by this court to exist in Reynardus was that the evidence would not support a finding of unfitness.)

This brings us to the question of whether the evidence supports the finding of Paul’s unfitness to have the custody of his child. The answer must be found in a consideration of the sum total of the circumstances. Paul is a 42-year-old doctor of internal medicine serving on the faculty of the University of Kentucky Medical School. He is dedicated to his profession and frequently works nights in the laboratory. His plan, if custody of Deborah were awarded to him, was to hire a maid or housekeeper to take care of Deborah during the day, and at nights, when he worked in the laboratory, to take the child with him. Under this plan there would be little in the way of family life or home relationship between father and child. Paul had acquired no experience in the physical aspects of caring for a young child. Deborah had gone through an extended period of exposure to emotional conflict, such as to indicate the need for her to live in a normal family environment.

It is our opinion that the evidence as a whole warrants the finding that in the custody of her father Deborah’s welfare would not be served to an acceptable minimum standard.

The judgment is affirmed.

EDWARD P. HILL, Jr., C. J., and MILLIKEN, NEIKIRK, PALMORE and STEINFELD, JJ., concur. REED, J., not sitting. OSBORNE, J., dissenting.

1 . The height of the standard may vary according to varying levels of society.

2 . Cf. James v. James, Ky., 457 S.W.2d 261 (this day decided).