Economic Abuse May Be Recognized By New York Courts

In 2002, the Appellate Division, Second Department, handed down what could be seen as an extremely significant decision in a custody case involving domestic violence ' Wissink v. Wissink, 301 AD2d 36 (2d Dept. 2002). Quoting New York Domestic Relations Law (DRL) Section 240 (1)(a), the Wissink court told the trial courts it expected them to pay careful attention to the legislature's mandate that in custody and visitation cases “the court must consider the effect of ' domestic violence upon the best interest of the child.”

The primary thrust of the Wissink case was to emphasize the need for careful evaluation of the psychological effects of domestic violence on the child, using up-to-date research and methodology. See Judith Reichler & Nancy S. Erickson, Custody, Domestic Violence, and a Child's Preference, NY Law Journal, April 24, 2003, page 4, col. 4. In a little-noticed paragraph of the decision, however, the court held that evidence of certain economically abusive behavior was relevant in a custody case and should not be excluded. This is a very important holding that should be examined by judges and attorneys and applied in other cases.

The Case

The trial court in Wissink had granted custody of the parties' daughter to the abusive father, based on the child's preference for living with him and a “court-ordered mental health evaluation” consisting of two 45-minute interviews with the child and an hour-long interview with each parent by a social worker. Appellate Justice Sondra Miller, in a decision in which all of the justices concurred, stated that “the 'consideration' afforded the effect of domestic violence in this case was, in our view, sorely inadequate.”

The court reversed the order of custody to the father, stating that “the fact of domestic violence should have been considered more than superficially, particularly in this case where [the child] expressed her unequivocal preference for the abuser, while denying the very existence of the domestic violence that the court found she witnessed.” The domestic violence that the child witnessed was brutal physical abuse of the mother on many occasions. The court ordered a new custody hearing “following an in-depth forensic examination of the parties and child.”

At the very end of the decision, however, the Wissink court addressed a different variety of abuse ' financial abuse. The mother had alleged that the father violated the child support order and also terminated the telephone and electrical services in the marital residence after he was ordered to stay away pursuant to an order of protection.The trial court limited the mother's inquiry regarding the father's failure to comply with child support obligations and held that financial considerations were “not relevant at all” to the custody proceeding. The Appellate Division held that this was error, because the mother's allegation, if proven, would clearly be relevant to the court's custody determination, citing DRL Section 240(1)(a)(4) for the proposition that the trial court was required to consider the parties' support obligations and their compliance with court orders, and citing Eschbach v. Eschbach, 56 NY2d 167, 172, for the proposition that the trial court was required to evaluate each party's ability to support the child.

In next month's issue, we'll look at what constitutes economic abuse and at why attorneys and judges should start looking at economically coercive behavior as a form of domestic abuse.

Nancy S. Erickson, J.D., LL.M., M.A. (Forensic Psychology), a member of this newsletter's Board of Editors, is a consultant on issues relating to law and forensic psychology..She was a professor of law for many years and has published several books and articles on family law issues.

In 2002, the Appellate Division, Second Department, handed down what could be seen as an extremely significant decision in a custody case involving domestic violence ' Wissink v. Wissink , 301 AD2d 36 (2d Dept. 2002). Quoting New York Domestic Relations Law (DRL) Section 240 (1)(a), the Wissink court told the trial courts it expected them to pay careful attention to the legislature's mandate that in custody and visitation cases “the court must consider the effect of ' domestic violence upon the best interest of the child.”

The primary thrust of the Wissink case was to emphasize the need for careful evaluation of the psychological effects of domestic violence on the child, using up-to-date research and methodology. See Judith Reichler & Nancy S. Erickson, Custody, Domestic Violence, and a Child's Preference, NY Law Journal, April 24, 2003, page 4, col. 4. In a little-noticed paragraph of the decision, however, the court held that evidence of certain economically abusive behavior was relevant in a custody case and should not be excluded. This is a very important holding that should be examined by judges and attorneys and applied in other cases.

The Case

The trial court in Wissink had granted custody of the parties' daughter to the abusive father, based on the child's preference for living with him and a “court-ordered mental health evaluation” consisting of two 45-minute interviews with the child and an hour-long interview with each parent by a social worker. Appellate Justice Sondra Miller, in a decision in which all of the justices concurred, stated that “the 'consideration' afforded the effect of domestic violence in this case was, in our view, sorely inadequate.”

The court reversed the order of custody to the father, stating that “the fact of domestic violence should have been considered more than superficially, particularly in this case where [the child] expressed her unequivocal preference for the abuser, while denying the very existence of the domestic violence that the court found she witnessed.” The domestic violence that the child witnessed was brutal physical abuse of the mother on many occasions. The court ordered a new custody hearing “following an in-depth forensic examination of the parties and child.”

At the very end of the decision, however, the Wissink court addressed a different variety of abuse ' financial abuse. The mother had alleged that the father violated the child support order and also terminated the telephone and electrical services in the marital residence after he was ordered to stay away pursuant to an order of protection.The trial court limited the mother's inquiry regarding the father's failure to comply with child support obligations and held that financial considerations were “not relevant at all” to the custody proceeding. The Appellate Division held that this was error, because the mother's allegation, if proven, would clearly be relevant to the court's custody determination, citing DRL Section 240(1)(a)(4) for the proposition that the trial court was required to consider the parties' support obligations and their compliance with court orders, and citing Eschbach v. Eschbach , 56 NY2d 167, 172, for the proposition that the trial court was required to evaluate each party's ability to support the child.

In next month's issue, we'll look at what constitutes economic abuse and at why attorneys and judges should start looking at economically coercive behavior as a form of domestic abuse.

Nancy S. Erickson, J.D., LL.M., M.A. (Forensic Psychology), a member of this newsletter's Board of Editors, is a consultant on issues relating to law and forensic psychology..She was a professor of law for many years and has published several books and articles on family law issues.