MEMORANDUM OF DECISION
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
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
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
(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.