The state of New York has long been at the forefront of cultural and legal progress. Yet, for all of its claim to fame as the center of the world, New York has some antiquated divorce laws that need to be changed to protect our families.
As the band the Eagles reminded us, in a New York minute, anything can change. Not so in the context of New York’s divorce laws. A case in point: It was not until 2010 that New York became one of the last states to introduce its own version of no-fault divorce.
Now, another change is needed to protect New York’s families in distress. While it is essentially universally recognized in the mental health community that divorcing litigants (particularly those with children) should not be residing together under the same roof, courts have very little authority to order such a physical separation of the parties.
Currently, when a spouse seeks an order granting temporary “exclusive use and occupancy” of a marital home which results in the physical separation of the parents during the divorce, as a general matter (excluding cases involving alarming threats of harm/extreme emotional abuse) there must be competent proof of physical violence or damage to property to justify it. Failing that, if one spouse has secured an alternative residence and his/her return to the home would cause strife, the exclusive use remedy may also be available.
A narrow view towards domestic violence can lead to this litmus test: Does the spouse seeking the remedy have a black eye, or something equivalent? If not, then parents may remain stuck under the same roof for the duration of the divorce proceedings, together with their children, regardless of how untenable a living situation exists.
This restrictive definition of domestic violence is quite obsolete as it ignores the corrosive concept of coercive control between divorcing spouses. Coercive control is psychological abuse in all its forms—using finances to control the victim, isolation, verbal putdowns and the like, or other non-physical (but still oppressive) behaviors.
Coercive control may not involve physical violence but instead the assault is in the form of a spouse’s insistent and threatening control over their partner. The effects of this type of domestic violence are psychologically damaging, and can have a far longer negative impact on the victim than any broken bone resulting from physical violence.
Coercive control is a core principle of domestic violence and is a destructive form of it. Yet this well-established concept, embraced by other states in various legal proceedings, has barely dented New York’s jurisprudence.
The National Coalition Against Domestic Violence statistics reflect that nearly 20 people per minute are physically abused by an intimate partner, and, 1 in 4 women, and 1 in 9 men experience severe intimate partner physical violence, intimate partner contact sexual violence, and/or intimate partner stalking with impacts such as injury, fearfulness, post-traumatic stress disorder, use of victim services, contraction of sexually transmitted diseases, etc. Combine this with the statistic that between 40-50% of marriages end in divorce. These statistics guarantee that coercive control issues permeate a large number of contentious divorce proceedings.
The difficulty with issues of psychological abuse and coercive control in the home is that they are not so easily proven as a picture of a bruise or black eye. These issues often happen outside of the public’s view and can go unreported for years due to fear and/or embarrassment on the part of the victim.
However, there is a notable and critical exception to this hidden trauma: Children in the home observe it and are left to decipher and process the psychological abuse inflicted by one of their parents against the other. In fact, at times they are dragged right into the middle of the conflict, trying to find a way to appease the batterer-parent and protect the victim-parent.
Cindy Kanusher, the Executive Director of the Pace Women’s Justice Center, suggests New York’s divorce laws and its courts need to acknowledge the profound impact of these destructive behaviors: “Too often, a course of behavior in domestic violence which involves coercive control or psychological or emotional abuse is not taken seriously and is downplayed despite the fact that this type of abuse is exceedingly common in domestic violence cases, is one of the major forms of power and control, and, causes severe harm to victims.”
New York has made some inroads into making coercive control a factor in the state’s jurisprudence but thus far, only in a criminal context. The 2019 Domestic Violence Survivors Justice Act (DVSJA) permits survivors of domestic violence to apply for resentencing if there is evidence of psychological abuse.
But despite this recognition of the impact of coercive control in causing criminal behavior, New York’s family law jurisprudence has not placed a similar emphasis on protecting parents who are victims of coercive control when they appear before the courts in the early stages of divorce proceedings.
As noted above, children suffer in homes plagued by psychological abuse between their parents. New York’s family law fails to account for and help prevent the increasingly persuasive and pervasive evidence of adverse childhood experiences (ACEs) and their impact on children.
Recent research proves that children exposed to abuse in the home—of all forms of domestic violence including coercive control—are subject to adverse health consequences. These traumatic events include experiencing abuse, witnessing violence in the home and growing up in a household with instability due to parental conflict.
The Center for Disease Control and Prevention in 2019 estimated 62% of adults surveyed across 23 states reported that they had experienced one ACE during childhood and nearly one-quarter reported that they had experienced three or more ACEs. ACEs disrupt healthy brain development, affect social development, can lead to unhealthy adult behaviors, compromised immune systems, and increased the risk of injury, mental health problems and maternal and child health problems, in both the short and longer term.
In short, a child’s exposure to coercive control and abuse threatens the child’s well-being irrespective of which parent is the perpetrator.
Given this backdrop, New York’s judges need legislative guidance to require an immediate assessment of ACEs and the risk of coercive control in the household at the start of any divorce litigation.
For a host of reasons, it may be difficult for New York’s trial court judges to perform this analysis in matrimonial cases. There are cost and timing questions facing a trial judge in the early stages of a divorce proceeding and establishing a second household to accommodate separated parents may be beyond the couple’s financial means.
A trial court may also find it very difficult to isolate the children and the offending parent, as often both parents may contribute to the toxic environment that causes ACEs.
Despite these hurdles, victims of coercive control, who risk children’s exposure to the short- and long-term consequences of ACEs, need legislation to bring New York’s family law into accord with these new social science advances in understanding the complexities of domestic violence. An expanded definition of domestic violence to include both concepts would better guide New York’s judges in deciding which parent should have access to the marital home during a divorce in order to protect parties and their children from the deleterious effects of the psychological trauma they may face before and during the divorce proceeding.
Our stressed New York families need this change—soon.
Richard A. Dollinger is a retired New York matrimonial judge.
“Repeat After Me: Coercive Control Is Domestic Violence,” by Richard A. Dollinger and Alan R. Feigenbaum was published in the New York Law Journal on July 22, 2022. Reprinted with permission.
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