Opinion
No. 17/7645.
10-03-2017
L.M.L., Plaintiff, v. H.T.N. a/k/a H.T.N., Defendant.
Alexander Korotkin, Esq., Rochester, Attorney for Plaintiff. Jonathan C. Trotto, Esq., Rochester, Attorney for Defendant. Matthew D. Nafus, Esq., Rochester, Attorney for the Child(ren).
Alexander Korotkin, Esq., Rochester, Attorney for Plaintiff.
Jonathan C. Trotto, Esq., Rochester, Attorney for Defendant.
Matthew D. Nafus, Esq., Rochester, Attorney for the Child(ren).
RICHARD A. DOLLINGER, J.
Confronting a request for exclusive use and possession of a marital residence, during the pendency of an action, is a trial for any judge. The balancing of parental interests—property rights of a titled spouse, financial costs of dislocation and the strain of two households on a family budget, uprooting a parent without a full hearing on the merits of who is responsible for the hostile environment in the home—is an Augean challenge.
But, in a state which reveres the best interest of children as the touchstone for judicial determinations in family matters, those interests must trump any other parental interests if a hostile and abusive environment persists in the home during the pendency of a divorce action and the only available remedy to quiet the turmoil is removal of a parent.
In this matter, a wife asks this court for "exclusive use and possession" of the marital residence. The residence is owned jointly by the husband and wife as tenants by the entirety. The couple have two sons, ages 12 and nine. The husband and wife, in affidavits before this court, present contrasting visions of what occurs in the home. The wife contends that she is the primary caretaker and supports the home life. The wife contends that the husband's actions "make it unsafe and inappropriate for the couple to reside together." She characterizes her husband as having a violent temper and claims he starts fights, at one point threatening her with a knife. She states her children have begun sleeping in her bedroom to protect her from the husband. She states that she "is afraid for [her] safety." In her application, the wife attaches to her affidavit a police report from more than two years ago, which details an incident at that occurred at the home. This court declines to credit any of the facts contained in it in this proceeding, as it is hearsay. Wynn v. Motor Veh. Acc. Indem. Corp ., 137 AD3d 779 (2nd Dept.2016) (information in a police accident report is inadmissible where the information came from witnesses not engaged in the police business in the course of which the memorandum was made, and the information does not qualify under some other hearsay exception). But, the court does give credit to the fact that it was filed as evidence that law enforcement has responded to this home in the past and that marital strife has existed in this household for some time prior to the initiation of the divorce and the two sons have been exposed to it.
The husband contests nearly every allegation made by his wife. He states that he is the primary caretaker of the sons since birth. He states that he takes the children to appointments, swim lessons, stay with them when they are sick and spends time with them on summer vacations. He alleges that his wife is an alcoholic. He admits that he has participated in verbal arguments with his wife, but he states—uncontradicted—that he never was physically violent towards her. The husband recounts that his wife threatened to kill him and adds another incident in which a man took a picture of him from a drone and threatened to post the picture on Facebook. He said he was afraid that this man was following up on the wife's threat to have him killed. As if the facts were not controverted enough, the wife submitted a reply affidavit, which she denies the substantive allegations and uses the word "false" 22 times when responding to the husband's allegations.
The husband does recount a bizarre incident involving sexual relations with his wife and a timer and alleges that at some point—unspecified—she kicked him.
The attorney for the sons filed an affidavit in support of the wife's application, noting that his clients described their mother as their primary caretaker. The children have told their counsel that the home is a "very stressful environment" and the situation is "unhealthy." The attorney adds that the children told him that they have seen and heard angry confrontations between their parents and at night they sometimes lock their bedroom doors due to safety concerns. The attorney comments that the sons are "very anxious about the current living conditions" and, he concludes, "a continuation of the status quo is not in their best interests." Importantly, the sons want to share time with both parents: they just oppose both parents living under the same roof while the divorce progresses. Although the attorney for the child's affidavit contains hearsay, it does corroborate the husband and wife's accounts of verbal fights and arguments in this home. Matter of Christine TT. v. Dino UU., 143 AD3d 1065 (3rd Dept.2016) (noting that a child's testimony, conveyed through a Lincoln hearing can be utilized to corroborate a parent's version of facts); accord Matter of Rush v. Roscoe, 99 AD3d 1053 (3rd Dept.2012) (12–year–old child); see Matter of Lincoln v. Lincoln, 24 N.Y.2d 270, 273 (1969). In short, while there are sharply contrasting views on who is responsible for what happens in this household, one undisputed fact emerges: the house is rife with arguments, verbal fights, flared tempers, threats, claims of alienation, "sexual manipulation" (according to the husband) and allegations of damage to personal property.
In considering the facts in this application, two other factors need to be considered by the court. The husband claims he wants to purchase the house and it would uneconomical for him to move from the house and then move back in when he later purchases the house. The wife makes the same argument and she also seeks to purchase the house and, because she has a higher salary than the husband, claims she can afford to do so. In a pre-motion argument over the need to separate this disputatious couple, the court suggested that one of the parents secure a significant sum, advance it to the other to allow a relocation and take that payment as a credit or partial credit against eventual equitable distribution. The wife's attorney suggested she could raise $10,000 to finance the husband's relocation and, when this motion was heard by the court, the wife's attorney confirmed that she had made these funds available to be paid over to the husband if he promptly vacated the marital residence. The second factor was that the husband, until recently and even at the time of the motion return date, worked nights. After oral argument, the husband presented the court with a statement from his employer indicating that he had been assigned to the day shift. In the court's view, this change eliminates one hurdle to resolving the pending issue, but the availability of the husband at the home, is not decisive in the court's final determination.
The resolution of the wife's application requires a detailed analysis of the standards for granting exclusive use and occupancy pendente lite in New York and, in this court's view, a refined re-examination of those precedents in view of the compounding evidence that existence of a hostile home environment, during a divorce, runs contrary to the best interests of children. New York's Domestic Relations Law permits a court to make "such direction between the parties, concerning the possession of property, as in the court's discretion justice requires having regard to the circumstances of the case and of the respective parties." DRL § 234. The statute, in the second sentence of Section 234, expressly permits a court to make these "directions ... from time to time before or subsequent to final judgment." Leibowits v. Leibowits, 93 A.D.2d 535, 550 (2nd Dept.1983) (discussing the legislative intent in Section 234 ). Section 234 was derived from Section 1164–a of the now-defunct Civil Practice Act, which was designed to "prevent any injustice which might arise as a result of a spouse's continued rights as a tenant by the entirety notwithstanding a judicial decree of separation." Kahn v. Kahn, 43 N.Y.2d 203, 208 (1977) (explaining the history of the statute). In 1960, a trial court judge who later ascended to the Court of Appeals, Bernard S. Meyer, analyzed Section 1164–a of the then Civil Practice Act, seeking guidance on whether to exclude a husband from a home he owned with his wife because he threw his glasses at his wife, chased her down their street in the middle of the night and later assaulted her. Borrowing from an American Law Reports annotation, Justice Meyer concluded that a party could be excluded from the marital domicile if there was "an immediate necessity to protect the safety of persons or property." Mayeri v. Mayeri, 26 Misc.2d 6, 8 (Sup.Ct. Nassau Cty.1960).
In Kahn v. Kahn, the Court of Appeals held that a trial court could not order the sale of a residence, in which the divorcing couple were tenants by the entirety, until a judgment of divorce was issued. The theory of the court was the tenancy could not be dissolved, as a matter of Legislative command, until a party had proven grounds under the then current version of Section 170 of the DRL. Now, the DRL permits dissolution of a marriage upon the sworn statement of irreconcilable differences for a period of six months prior to the action's commencement. DRL § 170(7). If dissolution is inevitable as a result of a sworn declaration of irreconcilable differences, then it is also inevitable that the tenancy by the entirety will be dissolved and the property equitably distributed. While no court has considered the impact of Section 170(7) on the rule in Kahn regarding the sale of a residence pendente lite, this Couyrt has previously suggested that the rule in Kahn v. Kahn might be worthy of a re-examination. Harlan v. Harlan, 46 Misc.3d 1003, 1007–1009 n. 3 (Sup.Ct. Monroe Cty.2014).
Section 1164–a was seldom cited in pendente lite matters. See e.g., Rowley v. Rowley, 6 A.D.2d 1049 (2d Dept.1958) (declining to award exclusive possession without a hearing). However, one court later held that "proper care of the children" and the "interests of the children" were factors in granting exclusive use while the parties awaited the sale of a home. Carloni v. Carloni, 38 Misc.2d 296 (sup. Ct. New York Cty.1963)
He fortified that conclusion by citing a California case which, under a temporary injunction statute, held that a spouse could be excluded from a marital residence for discharging a weapon. See Smith v. Smith, 122 P.2d 346 (Ct.App. 1st Dist.Cal.1942). Justice Meyer suggested that New York's temporary injunction statute gave trial judges the same power to exclude a belligerent spouse during the pendency of a divorce action. Civil Practice Act § 848 (1960).
Two years later, the Legislature, perhaps reading of Justice Meyer's frustration with a lack of legislative guidance, enacted DRL Section 234. The new statute gave courts the discretion to "direct" a spouse's possession of their residence, during a divorce, but no "direction" on how to do it or what factors to consider. After Section 234 was enacted, there was a conflict about judicial authority to exclude any tenant by the entirety from property during a matrimonial matter. The Second Department adopted Justice Meyer's formulation from Meyeri v. Meyeri, holding that any party seeking such "direction" from a court needed to prove such possession was necessary "to protect the safety of persons and property." Scampoli v. Scampoli, 37 A.D.2d 614 (2nd Dept.1971). By 1978, the Second Department held that sworn factual allegations of prior incidents of violence and abuse, combined with a protective order from the Family Court, justified an exclusive use order. Minnus v. Minnus, 63 A.D.2d 966 (2nd Dept.1978). Subsequent cases described the precondition for "exclusive use" as "domestic strife." JL v. AL, 28 Misc.3d 1239(A) (Sup.Ct. Nassau Cty.2010). The Second Department later added a judicial gloss on Section 234, holding that if one spouse had an alternative residence, then the standard was somewhat less onerous to a litigant and only required proof of the "existence of an acrimonious relationship between the parties, and the potential turmoil which might result from the husband's return to the marital home." Kristiansen v. Kristiansen, 144 A.D.2d 441 (2nd Dept.1988). See e.g., Amato v. Amato, 133 AD3d 695 (2nd Dept.2015). The First Department in Delli Venneri v. Delli Venneri, 120 A.D.2d 238 (1st Dept.1986), said domestic "strife" was a recognized standard for an award of temporary exclusive possession. But, the case involved unique facts: the litigant refused to leave the residence, attested that if permitted to re-enter, he intended to occupy the marital bedroom, a circumstance which, the court acknowledged, "all other considerations aside, is rife with the potential for strife and turmoil." Id. at 241. The decision in that case hinged, in part, on proof that the excluded party has access to an "alternative residence." The court added that it "rejected any rule which would ignore other salient facts and limit the award of temporary exclusive possession to only those instances where, based on past experience, there is a verifiable danger to the safety of one of the spouses." The First Department later accepted the two-prong test—available alternative residence and avoiding domestic strife—in Fleming v. Fleming, 154 A.D.2d 250 (1st Dept.1989) (declining to grant exclusive possession because the offending parties actions were no more than "petty harassments"); Kenner v. Kenner, 13 AD3d 52 (1st Dept.2004). The Third Department expanded the notion, concluding that "marital strife"—as exemplified by a litigant breaking into the house to recover personal items—and allegations of "serious marital discord" were sufficient to justify exclusive possession pendente lite. Grogg v. Grogg, 152 A.D.2d 802 (3rd Dept.1989) (presence of marital strife can be a recognized standard for an award of exclusive possession).
The lower courts have generally required more evidence of "strife" than the "petty harassments such as the hostility and contempt admittedly demonstrated herein that are routinely part and parcel of an action for divorce." Dachille v. Dachille, 43 Misc.3d 241, 249 (Sup.Ct. Monroe Cty.2014). In a 2002 case, a wife and husband obtained mutual orders of protection, but still endured police visits and the children's treating therapist concluded the shared living arrangement was harmful to the children. Yet, orders of protection had never been enforced and the husband argued there was no evidence of any verbal attacks upon the spouse. The court noted:
The statute does not delineate any factors that the court must assess, analyze and weigh. The invocation of words such as "domestic strife" and an amorphous often times subjective standard such as "the best interest of child" as a predicate for such applications is a concept that may ultimately lead a court into awarding exclusive occupancy in every litigated matter and will provide little guidance to counsel in advising clients. It could also be said that the parties are adversarial, uncivil and less than cordial to to each other in many cases that reach the point requiring court intervention, regretfully often in the presence of their children.
Estes v. Estes, 228 NYLJ 66, p. 6 (Sup.Ct. Nassau Cty.2002). The court then ventured outside the record into a discussion of how divorce impacts children.
It has been postulated that the whole trajectory of a child's life is altered by the divorce experience. (Wallerstein, Judith, The Unexpected Legacy of Divorce. Hyperion, 2000). The same author states that children who grow up in wretched families with parents that [avoid] divorce, who stay together "because of the children", grow to be the most unhappy adults of all. Other studies and our courts have found that a child who loses contact with a parent due to divorce is much more at risk than a child whose both parents remain actively involved as a resource to the child, even throughout the divorce process, and that they fare as well as a child in an intact family.
Id. at p. 6–7. The court provided no source for the "other studies" and citations to "our courts" and their conclusions regarding the impact of divorce and accompanying domestic violence on children. The Estes court, in denying exclusive use, held that the allegations did not exceed "petty harassments such as the hostility and contempt admittedly demonstrated herein that are routinely part and parcel of an action for divorce." Id. at p. 8. One court recently further underscored that only "sever family strife" would justify removal of a parent from the residence:
The courts are generally reluctant to deprive one spouse of equal access to a marital residence prior to trial and recognize the unfairness that could result from forcibly evicting a spouse from his or her home on the basis of untested allegations in conflicting affidavits. The party seeking exclusive occupancy must present specific, detailed factual allegations as to incidents of violence or abuse, of police intervention or severe family strife ( McKinneys DRL § 234, Practice Commentaries, Alan D. Sheinkman, p. 464 f.). The fact that violence or abusive conduct occurred does not, standing alone, mandate that the court grant a motion for temporary exclusive occupancy. The court must consider, among other things, the financial circumstances of the parties, whether one spouse or the other has available alternate residences, whether one spouse or the other has a particular need to reside in the marital residence for employment, business, geographic or other reasons, and whether there are children and, if so, what custody or visitation arrangements are required.
T.D.F. v. T.F., 32 Misc.3d 1205(A) (Sup.Ct. Nassau Cty.2011). In that case, the court noted there was a confrontation between the wife and her daughter ("reactive striking" as described by the court), a no-violence order of protection, and there was a "disruptive and tense environment" that was "detrimental to the children," one child was suffering from "extreme depression" and was forced to live with her grandparents and yet the court did not grant exclusive use and possession. Some recent cases reflect a further judicial reluctance to grant exclusive use and possession pendente lite. Gutherz v. Gutherz, 43 Misc.3d 1225(A) (Sup.Ct. Kingsd Cty.2014) (although some discord, absence of children militated against granting it).
To the extent that court in T.D.F. v. T.F., in its ordering of considerations, was de facto "ranking," the factors for a court to consider, it is illustrative that the court placed the consequences to the children after the financial circumstances of the parents, the availability of an alternative residence and the employment considerations of the parents. These rankings, even if unintended, reflect a posture that the impact of the strife on the parents is more important than the impact of a tense and disruptive environment on a depressed and displaced child.
In this court's view, the opinion in Estes v. Estes and other cases cited above reflect an outdated notion that continual verbal abuse and sharply-worded verbal fights are simply "petty harassments" that are "part and parcel of actions for divorce" and ignore persuasive social science evidence that domestic turmoil can severely damage the lives of children. In that regard, more recent judicial pronouncements have recognized the dangers posed to children by unrestrained verbal assaults in the home. These recent cases also highlight the continuing debate over the quantum of proof to justify "exclusive use" during pendency. In Skitzki v. Neal, 149 AD3d 1604 (4th Dept.2017), the court upheld an award of temporary exclusive use because the excluded party was the "source of the domestic strife, which included one police intervention." In addition, the wife had purchased a nearby home, another factor favoring the court order. Finally, the court repeated the cure for any perceived inequities: an early trial on the issue of a final order of possession. Id. ln another context, a court recently ordered exclusive use, in part, because of the strife and turmoil that would accompany a parent's return to the home. Taj v. Bashir, 2017 N.Y. Misc. LEXIS 3668 (Dist.Ct. Nassau Cty.2017). In Barlik v. Barlik, 2017 MNY Misc. LEXIS (Sup.Ct. Queens Cty.2017), the court granted exclusive use finding evidence of domestic abuse, an existing order of protection and determined that the parent with whom the child resides should have possession. In these more recent cases, the cited opinions do not mention physical violence against a spouse, a factor that more-dated court opinions frequently cited as the primary justification for a grant of "exclusive use." In this court's view, the lack of references to physical violence in these recent decisions strongly suggests that physical violence—evidence of bruises, black eyes, scraps, cuts or broken limbs —no longer defines the quantum of "marital strife" sufficient to justify an award of exclusive use.
In this court's view, these recent decisions are also consistent with contemporary legislative initiatives in New York and social science research that document how even minimal levels of domestic discord impact children living in a besieged household. Recent research indicates that even "petty harassments"—name-calling and verbal "put downs," isolating a partner from family and friends, withholding money and preventing a partner from being alone with their children—when aggregated during the time a divorcing couple share a residence can easily compound into what experts would clearly characterize as a form of violence. For example, the New York Office for Prevention of Domestic Violence describes "coercive control" as including restricting daily activities, manipulating or destroying family relationships, stifling a parties' independence, controlling access to information and services, extreme jealousy, excessive punishments for violations of rules, and other inter-personal conduct. See New York State Office for Prevention of Domestic Violence website, h ttp://www.opdv.ny.gov/whatisdv/about_dv/index.html (Last visited on 2/1/16); United State Department of Justice, Office on Violence Against Women, http://www.justice.gov/ovw/domestic-violence (Last visited on 2/1/16); see Wheel of Power & Control, Domestic Abuse Intervention Project, Duluth, Minn, http://www.ncdsv.org/images/powercontrolwheelnoshading.pdf (Last Visited 2/1/16). These forms of abuse can also include the monitoring and/or regulation of commonplace activities of daily living, particularly those associated with women's default roles as mothers, homemakers and sexual partners and run the gamut from their access to money, food and transport to how they dress, clean, cook or perform sexually.
The Center for Disease Control describes a child's exposure to intra-family violent and abusive behavior as a life-threatening crisis of nearly historic proportions:
Recent research by Kaiser Permanente and the Centers for Disease Control and Prevention (CDC) strongly implicates childhood traumas, or "adverse childhood experiences" (ACEs), in the ten leading causes of death in the United States. ACEs include physical violence and neglect, sexual abuse, and emotional and psychological trauma. ACEs are associated with a staggering number of adult health risk behaviors, psychosocial and substance abuse problems, and diseases. History may well show that the discovery of the impact of ACEs on noninfectious causes of death was as powerful and revolutionary an insight as Louis Pasteur's once controversial theory that germs cause infectious disease.
Larkin & Records, Adverse Childhood Experiences: Overview, Response Strategies and Integral Theory, Journal of Integral Theory and Practice, Fall 2007, Vol. 2, No. 3, p. 1.
Stark, Re-presenting Battered Women: Coercive Control and the Defense of Liberty, Violence Against Women: Complex Realities and New Issues in a Changing World, Les Presses de l'Université du Québec, p. 4 (2012)
The New York Legislature embraced this expansive notion of domestic violence as it impacts children in Section 252 of the Domestic Relations Law. The legislature noted there are:
... few more prevalent or more serious problems confronting the families and households of New York than domestic violence. It is a crime which destroys the household as a place of safety, sanctuary, freedom and nurturing for all household members. We also know that this violence results in tremendous costs to our social services, legal, medical and criminal justice systems, as they are all confronted with its tragic aftermath.
Domestic violence affects people from every race, religion, ethnic, educational and socio-economic group. It is the single major cause of injury to women. More women are hurt from being beaten than are injured in auto accidents, muggings and rapes combined.
The corrosive effect of domestic violence is far reaching. The batterer's violence injures children both directly and indirectly. Abuse of a parent is detrimental to children whether or not they are physically abused themselves. Children who witness domestic violence are more likely to experience delayed development, feelings of fear, depression and helplessness and are more likely to become batterers themselves.
Legislative History, Laws 1994, ch 222, §§ 1, 2, eff Jan 1, 1995. Section 240(1)(a) of the law requires a court to consider domestic violence in all matters related to the best interests of the children. DRL § 240(1)(a). The recent amendments to the temporary and permanent maintenance guidelines both suggest domestic violence should be a factor in evaluating support awards. DRL § 236(5) a(e)(1)(h); DRL § 236(6)(e)(1)(g).
Domestic Relations Law § 240(1)(a) requires that for domestic violence to be considered by the court as a mandatory factor in its determination of custody, two elements must be met (1) the allegation must be contained in a sworn pleading; and (2) the allegations must be proven by a preponderance of the evidence. Joanne M. v. Carlos M., 2006 N.Y. Misc. LEXIS 4048, p. 35 (Sup.Ct. Suffolk Cty.2006); Matter of Aleksander K. v. Elena K., 2 Misc.3d 1005(A) (Fam. Ct. Richmond Cty.2004).
The New York courts have long been on the forefront of detecting domestic violence and enforcing the strong public policy to protect children from exposure to domestic abuse. The Second Department, more than a decade ago, recognized:
The devastating consequences of domestic violence have been recognized by our courts, by law enforcement, and by society as a whole. The effect of such violence on children exposed to it has also been established. There is overwhelming authority that a child living in a home where there has been abuse between the adults becomes a secondary victim and is likely to suffer psychological injury.
Moreover, that child learns a dangerous and morally depraved lesson that abusive behavior is not only acceptable, but may even be rewarded.
Wissink v. Wissink, 301 A.D.2d 36, 40 (2nd Dept.2002) ; see also Matter of Jacobson v. Wilkinson, 128 AD3d 1335 (2nd Dept.2015). Other courts have found that emotional or verbal abuse can constitute domestic violence. Matter of Adam E. v. Heather F., 151 AD3d 1212 (3rd Dept.2017) ; Matter of Robert K.S. (John S .), 121 AD3d 908 (2nd Dept.2014) (engaged in a pattern of verbal abuse and intimidation of the mother in the children's presence as a factor in neglect); D.D. v. A.D., 56 Misc.3d 1201(A) (Sup.Ct.l Richmond Cty.2017) (husband asserted power and control over the wife, frequently yelled at his wife, degraded the wife in front of the children and wife feared for her safety as aspects of domestic violence, even though no evidence of a physical altercation). But, in almost all of these cases, the adjudication of domestic violence occurs after a trial or hearing and perhaps well after the commencement of the action and years after abuse begins, when a trial has produced substantial evidence of the conduct and its harm and a final custody/residence determination is made. In this case, these children, trapped in a hostile environment during their parents's divorce apparently for several years, may not be able to—and should not have to—wait that long for relief.
The conduct by the husband, as alleged by the wife in this instance, can be easily construed to create alarm or seriously annoy her and served no legitimate purpose. Penal Law § 240.26[3] ). A constant badgering by a party which causes such annoyance and the object to fear for her safety can constitute harassment in the second degree. Matter of Lynn TT. v. Joseph O., 129 AD3d 1129 (3rd Dept.2015)
This court cannot ignore the expert language of professionals on domestic violence and its broad articulation in the Domestic Relations Law in considering the application for exclusive use and possession in this matter. The affidavits submitted by both parents reveal substantial friction in the household: verbal abuse, name-calling, threats, fights, doors locked to insure safety, damage to property and other conduct. The situation, according to the attorney for the children, has reached a boiling point. Verbal abuse, put downs, name calling, anxiety-producing turmoil and humiliation between the spouses in this case is well-established and although this court cannot, at this stage, pinpoint the perpetrator, this court must focus on the potential consequences to the children, as emotional damage—documented in countless studies—is likely to have already taken firm root on these two boys.
In this court's view, the "strife/available relocation" test, previously used by New York's courts, is based on an analysis of the conflict between the parents as it impacts the parents. The courts applying the "strife" test focus on whether the parents should be able to cope with the strife and, if parents can (or should be able to), then exclusive use and possession is not required. Merely invoking the word "strife" to describe an admitted level of domestic abuse and inappropriate behavior—and not excluding either party from the residence—may allow the "strife" to simmer into a higher level of disruptive behavior if the couple continue to be in close proximity while sharing the residence. Whether the parents can tolerate the strife or "petty harassments" ignores the more significant factor: whether the children, often without mature understandings of adult interactions and looking to their parents for examples of mature behavior, can tolerate the same level of "strife." What some characterize as "petty harassments"—caustic verbal exchanges, vulgarity, put downsmay be tolerable between two unhappy and divorce-seeking adults, but it is corrosive when overheard by children and directed against a parent they love. The deleterious impact of easily perceived intra-family verbal assaults, foul language and other demeaning behavior on children requires more discerning criteria as the standard for granting exclusive use and possession. In this case, it is undisputed that the children have already endured—and may have learned—he demeaning and destructive conduct of their parents. Regardless of the party at fault, the consequence—verbal violence directed against a parent and observed by the child—erodes the child's sense of home life. By denying this application and doing nothing—sending the parties back to the neutral corner so to speak in the home—sends the wrong message to the parents and the children and, in this court's view, sends message contrary to the direction of the state Legislature. Without court intervention, the parents may assume that their behavior is permissible to the court: the children may assume that such behavior is acceptable within a family. Neither conclusion is in the best interests of the family unit.
New York courts have concluded that expert testimony is not required to establish the harmful emotional impact on children who witness such abuse. In Matter of Shanayane C., 2 Misc.3d 887 (Fam. Ct. Kings Cty.2003) (reasonable inferences and common sense dictate that all three children are at risk for protracted impairment of emotional health, by virtue of witnessing the domestic violence); see also Justin R. v. Niang, 2010 U.S. Dist LEXIS 143991 (S.D.NY 2010)(expert testimony is not necessary to establish emotional harm to children as a result of domestic violence).
In considering the application for exclusive use in this instance and in an attempt to avoid displacing either parent during the pendency of this matter, this court considered the concept of "nesting," in which the children would remain in the residence and the parents would rotate time as the "parent-in-residence." There is no statutory authority for this concept in New York and while discussed in other states, judicial comment seems divided. Carmen v. Carmen, 2014 Pa.Super. Unpub. LEXIS 2716 (Sup.Ct. Pa 2014) (court cited with approval a two-year post-separation nesting arrangement); Grass v. Grass, 2014 Ohio Misc. LEXIS 3154 (Ct. Com. Pleas Union Cty.2014) (court rejecting a plan for nesting mas unsupported by proof in the record); Key v. Key, 2012 Conn.Super. LEXIS 2347 (Sup.Ct. New London Conn.2012)(court, after a hearing, rejected plan for continued "nesting arrangement" in favor of permanent parenting plan, holding the the nesting plan was "not working well"); In re Marriage of Levinson, 975 N.E.2d 270 (App.Ct.Ill.2012) (appeals court upholds denial of exclusive use and possession under Illinois statute and approves interim "bird-nesting arrangement" in the absence of jeopardy to physical or mental well-being of parent or child as required by statute) ; Wilson v. Wilson, 2011 Mich.App. LEXIS 1118 (Ct.App. Mich.2011) (Until the marital home was sold, the court concluded that the children should remain in the home during that rotating schedule, with each parent moving in and out as scheduled); Londergan v. Carrillo, 2009 Mass.App. Unpub. LEXIS 662 (Ct.App. Mass 2009)(finding the bird-nesting schedule was in the best interests of the children); In re Graham, 2007 Cal.App. Unpub. LEXIS 3242 (Ct.App.Cal.2007) (citing with apparent approval a nesting arrangement based on a week-in, week-out plan); Fiddelman v. Redmon, 656 A.2d 234 (App.Ct. Conn 1994) (affirming decision that trial court, in essence, awarded possession of the marital home to the children, giving each parent during his and her time of legal custody the right to occupy the house with the children exclusive of the other parent until the house is sold). The only New York mention of this approach, pendente lite or otherwise, is found in A.L. v. R.D., 46 Misc.3d 1221(A) (Sup.Ct. New York Cty.2015) (noting that prior court order required each of the parties spend alternating weeks with in a continued nesting arrangement in the marital apartment). In this instance, the court declines to consider any "nesting" arrangement as a solution to the current level of abuse. The parties need a separation to quell the tensions in the home and nesting will not solve this problem. Several other factors complicate the court's choice. First, this court acknowledges that there is no evidence of recent physical violence perpetrated by either parent against the other. If we consider domestic violence to only include physical abuse or harm, then there is insufficient evidence in this case to order any exclusive use. But, if this court reached that conclusion, it would have to ignore the reams of legislative comment and social science research that domestic violence is more than just physical harm. The harm of a hostile home environment—populated with foul words, disparaging comments, loud demeaning voices, frequent arguments and verbal fights—and the fear for safety of the mother and the children rise, in this court's view, to the level of domestic violence that mandates court intervention.Second, this court concedes that simply separating the parents may not end the torrent of verbal abuse directed at the other parent: even in new separate residences, a parent can unleashed verbal abuse and make demeaning comments about the other parent. The children will be exposed to that language, perhaps even harsher than what would be uttered in the company of both parents. But, the children will be spared the retort, the rising voices, the angry face-to-face confrontations that ensue when a parent begins a verbal argument. This difference—between the comments of separated parents living in separate residences and confrontations of parents living in the same residence—may be seem of minor importance to the judiciary, but it would seem to be easily classified as in the "better interests" of the children.
See also Flannery, Is "Bird Nesting" in the Best Interest of Children? 57 SMU L. REV. 295 (2004) (claims bird nesting is inappropriate, ineffective and unnecessary because joint custody is "sufficient to promote positive developmental adjustment" and explains residential insecurity is only one factor affecting children and bird nesting is appropriate only when parents are not remarried, have no previous or subsequent children, can communicate about child's needs and where it is economically feasible and concludes that such situations rare and "bird nesting only tends to magnify the pre-separation conflict between parents.")
The father in Levinson articulated the rationale for the bird-nesting arrangement:
Well, the children have the continuity of their home, what's clearly their home. And it's a very comfortable home for them. And it's the only home they've ever known. They were brought from the hospital, each of them, to this home. And they each have their own bedrooms, their playroom, their kitchen. And the nesting arrangement allows for the children to have that stability of the home. And the only difference is, which they understand, is that mommy and daddy take turns in being with them when in the home. So they're not subjected at this point to the disruption of having to pack up and move out for periods of time and to go to an inferior environment, by every measure, size, quality, just in every way. It's a small apartment compared to a large, luxurious home. So my belief is that it is best for the children to have the stability and this continuity and to minimize the disruption and the impact of our divorce. And I believe that the nesting arrangement allows for that. It also allows for the stability of the children to have substantial amounts of time with each parent and to enjoy the bond and the love that they receive from each parent. So it's my belief that it is the best—excuse me, that it is the best of the alternatives that we have available.
In re Marriage of Levinson, 975 N.E.2d at 280. The court appointed evaluator in that instance also testified to benefits of the nesting arrangement—"they're in one location, not packing a little bag, going back and forth. From their perspective life is consistent," but concluded that the separate residences, ultimately, were in the children's best interests. Id. at 277–78.
Third, this court is not unmindful of the judicial gloss, adopted by several Appellate Division, that exclusive use should only be granted if there is another residence, readily available to the displaced spouse. This court acknowledges neither parent can immediately leave this residence. The displaced parent may be challenged to find close-by accommodations, to facilitate any visitation. Suitable accommodations of sufficient size to accommodate overnight visitation with children, can be tough to attain in short order. This couple's ability to finance two households—the marital residence and the new off-site lodging for the departed spouse—makes this transition difficult. But, this couple have resources, as the marital residence has no mortgage and the wife has access to financial resources both inside and outside the marriage. In an earlier discussion over the need to separate this disputatious couple, the wife's attorney suggested she could raise $10,000 to finance the husband's relocation and, when this motion was heard by the court, the wife's attorney confirmed that she had made these funds available. In this court's view, the available funds to relocate in the short term is an acceptable substitute for the "available residence" requirement that other appellate decisions have suggested must be present before granting exclusive use. Finally, this court notes that the grant of exclusive use in this instance forshadows the eventual resolution of this matter: when the divorce is over, the households will be divided and the husband and wife separated. While accelerating that division through the grant of exclusive use is difficult, nonetheless the separation of parents involved in all forms of domestic abuse as soon as practically possible must be considered beneficial to the children in this instance.
In calculating the consequences of granting exclusive use, this court acknowledges that the temporary decision—resulting the eviction of one parent from the family home—might make matters worse. Siding with one party based on less than a full airing of proof seems contrary to any norms of due process and heightens the possibility of judicial error. If a full hearing occurred, then the court would have a firm factual basis to consdier this application and apply, without reservation, the standards articulated in this opinion and compansion case law. But, in considering that possibility, this court determines to err on the side of reducing the children's exposure to abuse, regardless of whether it can properly and justifiably pinpoint the perpetrator at this early stage of the proceeding. If the abuse subsides, even for the few months that the divorce progresses, the litigants and the children will have a sense that a lack of abuse should be norm in their lives, regardless of whether they ultimately live with their mother or father. While awarding temporary exclusive use, the court also will not prejudice either parent in the final determination of their primary residential status. If the husband finds suitable accommodations within the same school district as the children currently attend, this court will order him to have a shared residency with his sons and equal time in his new temporary residence. In addition, the court has offered the parties to have a private auction on the house, in which they could each bid on the property. While they have not elected that approach, this court will either auction the property between the two parents or have it offered for sale and either parent can then make an offer on the property.
See Wissink v. Wissink, 301 A.D.2d at 40 (discussing that other states have a rebuttable presumption that an abuser cannot be eligible for custody). Many states hold that if there is evidence of domestic violence—of any variety—in a home with children, there should be a presumption that a non-offending parent should be granted exclusive use and possession pendente lite. Terry v. Terry, 154 So.3d 1002 (Ala.2013) (rebuttable presumption against perpetrator); Caroline J. v. Theodore J., 354 P.3d 1085 (Alaska 2015, citing AS 25.24.150(g)); Cardoso v. Soldo, 277 P.3d 811 (Ct.App.Ariz.2012) (statute imposes a rebuttable presumption that it is not in a child's best interests to award custody to a parent who has committed an act of domestic violence against the other parent. Ariz.Rev.Stat. § 25–403.03(D) ); Cunningham v. Cunningham, 2006 Ark.App. LEXIS 683 (Ct.App.Ark.2006)(a rebuttable presumption of unfitness is created where there is a finding by the preponderance of the evidence that a party engaged in a "pattern of domestic abuse." Ark.Code Ann. § 9–13–101(c) (Supp.2005)); Noergaard v. Noergaard, 2015 Cal.App. LEXIS 1191 (Ct.App.2015)(Family Code section 3044 establishes "a rebuttable presumption that an award of sole or joint physical or legal custody of a child to a person who has perpetrated domestic violence is detrimental to the best interest of the child); January v. Div. of Family Servs., 91 A.3d 561 (Del.2014) (13 Del. C. § 705A(a) (establishing "a rebuttable presumption that no perpetrator of domestic violence shall be awarded sole or joint custody of any child" and 13 Del. C. § 705A(b) establishing "a rebuttable presumption that no child shall primarily reside with a perpetrator of domestic violence"); Appolon v. Faught, 796 N.E.2d 297 (Ct.App. 5th Dist.Ind.2003) (Ind.Code § 31–17–2–8.3 creates a rebuttable presumption of supervised visitation for a non-custodial parent who has been convicted of a crime involving domestic violence that was witnessed or heard by the child); In re Duenas, 2006 Iowa App. LEXIS 1286 (Ct.App.Iowa 2006)(Iowa Code section 598.41(1)(b) (2003) establishes a rebuttable presumption against joint custody if a history of domestic abuse exists, and section 598 .41(2)(c) states if a history of domestic abuse exists and is not rebutted, that outweighs any other factor considered); OPINION OF THE JUSTICES, 427 Mass. 1201, 691 N.E.2d 911(Mass.1998) (upholding constitutionality of presumption that a party who engages in domestic violence is denied custody); Yang v. Yang, 2003 Minn.App. LEXIS 642 (ct.App.Minn.2003)(the court shall use a rebuttable presumption that joint legal or physical custody is not in the best interests of the child if domestic abuse); Brumfield v. Brumfield, 49 So.3d 138 (Ct.App.Miss.2010) (Miss.Code Ann. § 93–5–24(9) created a rebuttable presumption against an award of custody to a parent with a history of domestic violence); Amezcua v. Eighth Judicial Dist. Court of Nev., 319 P.3d 602 (Nev.2014) (rebuttable presumption that a perpetrator of domestic violence is unfit for sole or joint custody of his or children under Nev.Rev.Stat. §§ 432B.157 and 125C.230 ); Mowan v. Berg, 2015 ND 95 (N.D.2015) (N.D.C.C. § 14–09–06.2(1)(j) creates creates a rebuttable presumption that a parent who has perpetrated domestic violence may not be awarded residential responsibility for the child); In re J.C., 346 S.W.3d 189 (Ct.App. 14th Dist.Tex.2011) (the Family Code establishes a "rebuttable presumption that the appointment of a parent as the sole managing conservator ... is not in the best interest of the child if credible evidence is presented of a history or pattern of past or present child neglect, or physical or sexual abuse by [a] parent directed against the other parent, a spouse, or a child." Tex. Fam.Code Ann. § 153.004(b) ); Jeffrey S. v. Jennifer S., 2013 W. Va. LEXIS 39(Sup.Ct.App.W.Va.2013)(a rebuttable presumption that a parent who has engaged in domestic violence shall not be allocated custodial or decision-making responsibility. See W.Va.Code §§ 48–9–209(a)(3) and (c) ; Straub v. Straub, 703 NW2d 383 (Ct.App.Wisc.2005) (Wisconsin Stat. § 767.24(2)(d)(1) now provides that "it is detrimental to the child and contrary to the best interest of the child to award joint or sole legal custody" to a party that has "engaged in a pattern or serious incident of interspousal battery or domestic abuse ..."); Jung v. Ruiz, 59 V.I. 1050(Sup.Ct.V.I.2013) (determination by the court that the domestic violence has occurred raises a rebuttable presumption that it is in the best interest of the child to reside with the parent who is not the perpetrator." 16 V.I.C. § 109(a)(1), (b).)
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In the face of all of these complications, this court must implement New York's "zero-tolerance" policy on domestic violence in all its forms. The current standard for granting exclusive use or possession—safety of persons or property—is cast in the language and images of 1970s and even unfortunately implies that "persons" and "property" have equivalent weight to the emotional security of children. The use of the word "necessary to protect" the safety of a person suggests that physical harm—an advanced form of domestic violence—is somehow a prerequisite to granting exclusive use and ignores the impact of abusive, but not physically threatening—behavior on children. The mere suggestion that "exclusive use" should hinge, in any fashion, on the "voluntary establishment of an alternative residence" also suggests that preventing domestic violence may depend, in part, on the untenable notion that the convenience of one party's ability to secure short-term housing away from the home is somehow more important than the emotional security of the children.
In this case, the hostile home life requires this court to free these children from the continual strife between their parents. The court, relying in part on the affidavits, despite their contrary allegations, and also on the preferences of the children conveyed through their attorney, grants the wife's application and holds that the wife should be a temporary primary residential parent. To reduce the stress and strain on these children and to further their best interests, the father must vacate the residence within 15 days of this decision. The wife shall make the $10,000 available to the husband to relocate within 10 days of this decision and that sum shall be eligible to be a credit against any future equitable distribution. This court shall, within 45 days, schedule a hearing on a further award of use and possession of the residence.
New York is a "zero tolerance" zone for domestic violence of any sort and this drastic remedy—removing a parent from the home—is necessary to protect the best interests of these children and meet that goal for this family.