October 5, 1988


The parties to this modification motion were originally married on April 18, 1971 and divorced on April 15, 1983.  Three children were born of the marriage: Jennifer, on November 15, 1972; Steven, on March 20, 1977; Susan, on June 20, 1982.  Custody of the children was given to the husband and the wife jointly with the children residing with the mother, subject to liberal visitation rights being provided to the father.

Thereafter, on February 10, 1987, the parties stipulated to a modification of the judgment of April 15, 1983, as it pertained to the minor child, Steven.  By that modification, sole legal custody of Steven was awarded to the father with flexible visitation rights for the mother.  Certain other financial modifications to the original judgment were made.

Thereafter, on August 31, 1988, the plaintiff's wife obtained an ex parte order of this court granting her temporary custody of the minor child, Steven, until her request for permanent custody could be fully heard.  That hearing before the undersigned was conducted over two days, and the court heard the testimony of the parties as well as that of Ralph C. Underwager, a licensed consulting psychologist and defense expert, who interviewed the parties as well as the minor child, Steven.  The request for the ex parte custody of Steven was initiated after Steven made certain accusations concerning his father which are contained in Mrs. Ferguson's affidavit attached to her ex parte request.  The court appointed [an attorney] as counsel for the minor child, Steven, who did not testify during the hearing.  The purpose of Dr. Underwager's evaluation, a history of the backgrounds and present living arrangements of the parties, as well as Dr. Underwager's conclusions, are all contained in his report of September 23, 1988.  Based upon the testimony of the witnesses, the exhibits and the arguments of the attorneys, the court makes the following findings and modifications to the earlier modification of February 10, 1987:

1.  Although the minor child, Steven, has apparently made prior and inconsistent out of court statements concerning alleged improper sexual contact by his father, there is insufficient evidence before the court to support a claim of sexual abuse.

2.  The court does not find the defendant to be an unfit person, but based on the testimony of the witnesses, in particular the defense expert Dr. Underwager, the court does find a change in circumstances to now exist as to the child, Steven, and his understanding of and ability to deal with his father's homosexuality which justify a change in the custody arrangement.  Custody of the minor child, Steven, is therefore awarded to the plaintiff with visitation rights to the defendant as follows:

(a)  Three weekends per month from Friday at 6 p.m. to Sunday at 4 p.m., on at least one of such weekends Steven shall be accompanied by his sister Jennifer.

(b)  The defendant shall have visitation from Sunday evening, December 25 through Wednesday evening December 28, and for one-half of the school vacation period in February, 1989.

(c)  Reasonable telephone contact during the week.  The children shall be delivered and returned from visitation at a mutually agreeable location in Milltown.  The plaintiff shall have custody exclusively on Thanksgiving Day with only telephone contact with the defendant.

During any periods when the defendant's children are visiting overnight, he shall not have any male guests remain overnight.  He shall further remove from sight or inspection any pornographic material or materials depicting any homosexual contacts between persons during any visits with his minor children.  It is the court's strong recommendation, but not order, that the parties not discuss with Steven any past claims of alleged sexual contact.  This recommendation should in no way be interpreted to discourage or prohibit any discussions of new allegations should they arise.

(d)  The defendant shall arrange for counseling for himself and Steven on the subject of his homosexuality to be conducted in South Ridge as recommended by Dr. Underwager to be commenced as soon as possible.  Said counseling should, if possible, be scheduled on Saturdays or at such other time as is convenient to the parties.

(e)  To the extent necessary, this court will order that Steven's school records be made available to the school authorities in the district that he currently attends.

(f)  The majority of Steven's clothes, including his school clothes, should be made available to him and returned to his mother.  The father may retain certain play clothes and other personal belongings for the child's use during the visitation periods.

(g)  The court will retain jurisdiction of the matter of Steven's custody and shall schedule interim reviews on Monday, December 19 at 2:00 p.m., and Monday, February 27, 1989 at 2:00 p.m.

(h) Paragraph 3 of the February 10, 1987 stipulation shall be modified to award alimony and support in the amount of $200.00 per week, with the unallocated alimony terminating on the wife's remarriage.  Thereafter, child support for each child Jennifer, Steven and Susan shall be $50.00 per week until each reaches the age of eighteen.  In said paragraph, the name Steven shall be added wherein the names Jennifer and Susan appear.

Judgment may enter, accordingly.



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