Divorce Law Ends 2023 on a High Note

New York Law Journal

This author started off the New Year in January 2023 with an article showcasing a decision by the Honorable Jeffrey S. Sunshine that demonstrated excellence in the practice of matrimonial law.

As 2023 comes to a close, given the state of world affairs, I find myself searching for any remaining vestiges of humanity.  If I have to return to matrimonial jurisprudence to find vestiges of humanity, so be it.

Against that admittedly bleak backdrop, which I do not believe is overstated considering what has transpired in our world over the last few months, I felt my confidence in the willingness and dedication of our courts to do what is right, and what is just, sparked by Judge Edmund M. Dane’s Nov. 14, 2023 decision in T.H. v. G.M., 2023 NY Slip Op 51267(U).

T.H. brings us back to the standards under which a divorcing person may seek temporary exclusive use and occupancy of a home, which results in the physical separation of parents during 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 the remedy of temporary exclusive use and occupancy.  Failing that, if one spouse has an alternative residence, and his/her return to the home would cause strife, the exclusive use remedy may also be available.

A restrictive view of domestic violence has regrettably permeated matrimonial jurisprudence into following a litmus test of sorts that asks this: does the person seeking the exclusive use remedy have a black eye, or something equivalent?

As I have written previously in this Journal, adhering to such a restrictive and incomplete view of domestic violence fails to take account of the impact of adverse childhood experiences (ACEs) on children of divorce.  Stated differently, the black eye litmus test does not factor in the emotional safety of children of divorce—which is equally important and worthy of protection when compared with the physical safety of children in divorce.

In T.H., the plaintiff-mother sought, inter alia, interim exclusive use and occupancy of the marital residence.  The parties were married in 2001, and they had one child, a son, born in 2008 (almost age 15).  The parties resided at the home of the plaintiff’s mother, with the child.

Briefly with respect to the defendant-father’s claim that Section 234 of the Domestic Relations Law (DRL) does not authorize a claim for temporary exclusive use and occupancy of a home owned by a third party (here, the plaintiff’s mother), the court swiftly rejected that claim.  As the court explained, Section 234 of the DRL empowers courts to make directions regarding “possession of property,” i.e., “Since both parties effectively live at the Freeport premises, irrespective of title, both parties effectively possess the premises” (emphasis in original).  As the 15-year-old child is a “ward of the Court,” the decision rightfully proclaims that “The law does not wait upon these niceties of practice, it does not dally and dawdle, when what is at stake in the contest is the safety of its ward.”  Indeed, at most, please reserve such “niceties of practice” for a law school moot court competition.

The decision then proceeds to declare that the law on exclusive use and occupancy must be read to incorporate a need to protect not just the physical safety of a child of a divorce, but also, his/her emotional safety:

An abusive or hostile environment is not the exclusive province of physical conduct or physicality between persons…Tangentially, a person’s emotional well-being is just as precious and important as his or her physical well-being.

Conduct that impairs, affects, debilitates, or augments a person’s mental health is a concern for this Court; especially when that conduct is thrust upon a child.

To limit the interpretation of ‘safety’ to acts of physical conduct or threats of physical violence would be an outmoded disservice to the many children that come before this Court because of their parent’s divorce. The Court therefore finds that conduct that is detrimental to the welfare (physical or emotional) of a child should be a factor in determining the appropriateness of an award of pendente lite exclusive use and occupancy of a marital dwelling or place of abode (emphasis added).

The affirmation submitted by the Attorney-for-the-Child (AFC), which joined the exclusive use aspect of the mother’s application, set forth that the child placed a lock on his bedroom door to keep his father out of his room.  The father had been coming home late, at times as late as midnight and 1:00 a.m. during weekday school nights, entering the child’s room and rubbing his body with oil as part of an anointing religious ceremony (where oil is put on the body in the shape of a Cross).  The child shared with the AFC that he was exhausted at school and sports the next day and wanted this to stop immediately, but the father would not respect the child’s wishes.

The court’s rationale for granting temporary exclusive use and occupancy focuses on the child’s emotional well-being, without regard to any short-sighted litmus test:

Indeed, and telling to this Court, the child went [s]o far as to place a lock on his door to give him a feeling of security and safety from the defendant’s conduct.  To this end, the child’s conduct in placing a lock on his door leads the Court to the inescapable conclusion that the child’s emotional well-being was being adversely affected by the defendant’s conduct…

this Court elects to displace the defendant because, in effect, he voluntarily chose to put his own religious interests over and above that of the emotional and physical wellbeing of this child. The adverse effect on the child was evident: emotionally, it caused undue stress to be placed upon this child; physically, it resulted in exhaustion in school when the child should be focused on his education and his activities when the child should be focused on the betterment of his athletic ability.

The court aptly stated that its decision to grant temporary exclusive use and occupancy to the mother “shall not be construed as a dispositive determination on the issue of custody or parental access.”

I agree with that and would add this—making a determination that an award of temporary exclusive use and occupancy is needed to protect a child’s emotional well-being does not always require a hearing, appointment of forensic psychiatrists, or other use of judicial resources that may well be required in a contested custody dispute.  Sometimes, the evidence speaks for itself and does not require more, as was the case in T.H.  Thus, a “slippery slope” type argument against the potential ramifications of the T.H. decision, while perhaps academically intriguing, falls flat.

As we proceed into 2024, I’ll leave you with this line of the T.H. decision: “In any matrimonial action where children are under the age of eighteen (18) years, the court must always consider the emotional well-being of children.” What can one say in response to that line of the decision, other than this: Bravo.

"Divorce Law Ends 2023 on a High Note," by Alan R. Feigenbaum was published in the New York Law Journal on December 11, 2023.

Reprinted with permission from the December 11, 2023, edition of the New York Law Journal © 2023 ALM Media Properties, LLC. All rights reserved. Further duplication without permission is prohibited.