Emotional Abuse Defined
The terms "emotional abuse" and "mental abuse" are often used synonymously within the context of abusive family dynamics. Although every family dynamic is different, experts agree that emotional abuse involves aspects of control, intimidation and systematic undermining of a person’s social and psychological well-being.
Defining Emotional Abuse
Emotional abuse in the context of family law matters often refers to situations where one party unfairly psychologically controls the other to the extent necessary to essentially destroy that person’s self worth, inducing fear and/or subjugation, among other things. It must be noted, however, that all forms of abuse, including emotional or psychological abuse, are equally reprehensible regardless of whether or not the abuse perpetrated is criminal in nature or merely reprehensible. The law recognizes then when reviewing allegations of abuse in the context of custody litigation. As such, just because an abusive relationship does not involve physical violence does not mean that there is not a significant potential to cause irreparable harm to the abused party or the child/ren of the relationship. As a practical matter, financial abuse, sexual abuse and emotional abuse can all make an already difficult divorce even more challenging. Emotional abuse may include loud yelling, inappropriate drunken outburst, inappropriate sexual comments or insinuations, sarcasm, and other manipulative behavior. Emotional abuse can also manifest itself in the methodical and systematic destruction of a person’s character, self-worth, personality, and social worth . For instance, when a manipulative spouse weaves a web of lies or negative comments about his/her spouse to children or family members in an effort to drive a wedge between the parent or parents and the children, especially in the context of a divorce or separation, it may be characterized as emotional abuse. Emotionally abusive parents may put down other relatives of their spouse, calling them names, berating them in front of the children or complaining about them to the children. They may arrive home late, drunk, or with another potential romantic partner and continue berating their spouse and/or children. Emotionally abusive parents may lie to their spouse and appear to be unemotional or withdrawn, while using the children as leverage to control the ex-spouse. Isolated incidents of poor or abusive behavior do not constitute emotional or mental abuse and will not be found to be "battered spouse" under Section 10 of the New Jersey Prevention of Domestic Violence Act (PDVA).
Examples of Emotional Abuse Below are some examples of emotional abuse. A thorough evaluation of the context surrounding abuse must be considered when making a determination as to whether emotional abuse has occurred:
Emotional abuse will usually not result in physical injury, but can still be devastating to the person being abused and the children in the family. Emotional abuse may lead to physical and sexual abuse, can lead to mental health issues for both the adult being abused and the children abuse by the abuser, and may lead to long-term physical health issues for the abused person.
Legal Threshold for Emotional Abuse
When bringing an action in family court alleging emotional abuse, the standard of proof requires that the party seeking relief establish, by a preponderance of evidence, that a predicate criminal act or acts of domestic violence occurred. As previously noted, the allegation of "emotional abuse" is construed as a claim under the New Jersey Prevention of Domestic Violence Act for, what is broadly defined as, "harassment." Harassment as a predicate criminal act for domestic violence is set forth in N.J.S.A. 2C:33-4, which reads in pertinent part (emphasis added):
[In order] to constitute harassment, the following acts shall not, under particular circumstances, be deemed to be harassment:
. . .
- (2) Makes, or threatens to make, any communication or anonymous communication for the purpose of frightening the person confronted or another, or seriously intending to under the person confronted or another, or to subject them to serious public ridicule or private humiliation; or
- (3) Purposely places or knowingly places or permits to be places telephone calls or makes or permits to be made anonymous calls, whether or not conversation ensues, repeatedly whether or not conversation ensues, at extremely inconvenient hours or in obviously attempts to abuse, annoy, or offend; or
- (4) Makes or either or both, as part of the same act, an electronic communication, as defined in section 1 of P.L.1999, c.409 (C.2A:38A-1), or a communication sent through or on a public or private electronic medium, including, but not limited to, a computer, pager, or other Internet related device, for the purpose to abuse, threaten, or annoy another.
It must be noted that, while most of the provisions of this statutory section appear straight-forward, courts have found that N.J.S.A. 2C:33-4(3)’s ‘inconvenient hours’ clause of the harassment statute has never been conclusively determined by the appellate courts of this state. (See In the Matter of Stephanie M. 2008 N.J. Super. Unpub. Lexis 168). Specifically, the courts have yet to define the meaning of "extremely inconvenient hours". The trial court noted in Stephanie M. that it "well may mean very late at night or very early in the morning or in the middle of dinner, a play, a movie, or some other social event. This is best left to a future case that has the facts to create the appropriate factual record for us to define the term." In an interesting analysis of the statute, the Appellate Division additionally noted that while the term "inconvenient" is unambiguous, the term "extremely" is not. As such, in instances where the alleged harasser’s contact with the target is in fact "inconvenient", the courts may be tasked with determining whether or not the call was "extremely inconvenient".
Compiling Evidence of Emotional Abuse
The collection of evidence is another critical step in the process of proving emotional abuse in family court. Evidence not only supports a spouse’s claims but also helps to establish a clear, comprehensive picture of the accused spouse’s behavior.
When it comes to emotional abuse, it is essential that the victim identifies the different types of evidence that can help support their claims, including:
- Documented communication between the spouses that reveals a pattern of abusive behavior
- Testimony from friends, family members and loved ones
- Records of prior domestic violence claims, including alleged emotional abuse
- Expert evaluations and testimonies
Documented communication is an important form of evidence that can be used to validate a spouse’s claims in a court of law. One specific type of documented communication that is often used as evidence is email correspondence. For example, a spouse may submit a transcript of abusive emails sent to them by their partner. Email transcripts can be easily printed out and are time-stamped, making them an ideal medium for gathering proof of emotional abuse. In addition to emails, other examples of documented communication include voicemail messages with recordings of abusive language and text messages that describe or imply emotional abuse. The testimony of third-party witnesses is another way to establish a spouse’s claims of emotional abuse. Individuals who have firsthand knowledge of a spouse’s behavior, including family members, friends and sometimes even coworkers, may be called to provide testimony during family court proceedings. These individuals are considered character witnesses. Character witnesses may be asked about the nature of their relationship with the spouse, what they have witnessed with regard to emotional abuse and whether they believe that spouse is abusive. In some cases, individuals who have had no prior relationship with the spouse may be asked to testify regarding their observations of the spouse, generally, or in instances where the harassment occurs outside of the home, such as at a social event. This is not typical in cases of domestic violence due to a lack of third-party witnesses. Another type of witness testimony is that of child professionals who have interacted with the couple and/or their children. Examples of child professionals include teachers and counselors. Typically, these child professionals are called upon to testify when there is a history of the abusive spouse neglecting and/or abusing the children. The court uses this testimony to determine whether the spouse has negatively impacted the children through emotional abuse.
Witnesses and Testimony
Witness statements are highly valued in proving emotional abuse in a family court setting. They can provide a clearer picture of your experiences, as they have observed abusive dynamics first-hand. The witnesses that they may call are usually those who have witnessed or experienced the controlling behaviours in your household, such as family members, friends or even teachers. Such witnesses can corroborate your testimony regarding the effects that emotional abuse has had on you, as well as your children.
Another way in which a witness may be of help is by providing expert testimony regarding the psychological effects of emotional abuse. For instance, a doctor can testify as to certain psychological problems (like depression) that you or your children may have been experiencing, and how these were caused or exacerbated by the emotional abuse. Similarly, a therapist can testify about how you or your children are perceiving the relevant behaviours and the harms that have come about as a result. Notably, when determining the effects of emotional abuse on children, the perspective of a therapist is particularly important; experts in therapy can identify the theoretically expected treatment that children of emotionally abusive households would need and the goal of such treatment. For instance, is it clear to your therapist that your child will need to engage in therapy long-term as a result of the emotional abuse they experienced? If not, this could indicate that the severity of the emotional abuse is not in line with the proposed treatment outcome, and may also show that it did not affect your child very much.
Once they have compiled witnesses, separating spouses should prepare them for testifying and going through a cross-examination. Under Ontario law, before going through a cross-examination, a witness first undergoes a direct examination where they answer questions posed by the separating spouse, but they do not respond to questions posed by the opposing party. To prepare your witnesses for their testimony, you must provide them with a list of key questions that will be asked during the direct examination, along with sample answers that do not deviate from the listed example or the witness’ standard speech patterns. Such consistent testimony may serve to further validate the testimony of the claimed victim of emotional abuse.
Role of Experts and Evaluators
As legal representation is a given, expert evaluation becomes an essential tool in these circumstances. These evaluations – typically psychological assessments or counseling evaluations through a mental health professional – are used to support your allegations of emotional or psychological abuse. The opinions and recommendations of these professionals can dictate the approach the court will take with regard to your best interest.
The use of expert evaluations is significant, owing to the unique characteristics of emotional abuse, which often do not leave physical scars. That said, the impact can be profound . Psychologists and counselors can assess these impacts and convey their findings through available evidence and facts. A skilled child psychologist, for example, will be able to determine whether the emotional or psychological abuse is having a concrete impact on the child under consideration.
Considering the unique role that child psychologists play during family court proceedings, obtaining a referral from your lawyer is critical. As noted, this professional can influence how the judge perceives your situation, and the message conveyed may be taken as authoritative fact by the court. For this reason, it is critical to enlist the help of a child psychologist that you can trust.
Making Your Case in Family Court
When you enter family court, it is wise to be as prepared for the case as possible. This means organizing evidence of emotional abuse as well as working closely with your representation in order to present your case to court in the most effective way possible.
There are many ways to support your claim in this case. For example, you may want to maintain a diary documenting every instance of abuse that you’ve gone through. You do not want your diary to be a bitter rant: instead, it should provide cold facts about what has occurred. Ensure that you include dates and times, as well as what was said or done to you. If you’ve tried speaking with a psychiatrist, keep a copy of the documentation of your sessions. Audio recordings of abusive conversations, while not necessarily the best evidence, can often be valuable. It’s generally advisable to avoid video recordings due to legal issues related to privacy; however, some states do allow the practice under certain circumstances.
When you finally go into family court to speak to the judge, you will need to walk a fine line. On the one hand, you cannot come across as bitter or angry — instead, you will need to look honest and rational in the eyes of the judge. However, on the other hand, you must still showcase your hurt and pain. You must demonstrate through your testimony that emotional abuse is real and that it has had a profound negative effect on your mental health and your functioning.
The judge will likely want to speak to both parents in order to get a better idea of the situation. This could be lengthy and even somewhat painful, but it is a crucial part of the process. Take heart in knowing that the person you want to judge you at the end of the process is the judge — not your ex-spouse.
Through all of this, it’s vital to remember that you are not alone. You are working with a lawyer who has the experience and expertise to help you through this process. First and foremost, your attorney can guide you into understanding your situation and the law, as well as the potential outcomes. This will allow you to plan for your case in a rational way and to decide on whether you will end up in counseling for emotional abuse, divorce, or both.
In addition to guiding you down this path, your attorney also has the ability to inform other third parties about the situation. If the case has been going on for a long time or you live in a particularly small town, many people may know your name — which can be damaging to your reputation going forward. Your attorney can work with you to try to minimize the damage caused by this case.
Available Legal Protections/Orders
Victims of emotional abuse can sometimes be protected by existing laws, such as the Family Law Act 1975 (Cth) (FLA). For example, a victim may be able to obtain a "protection order" under Section 68B of the FLA, which the Court can impose on a person in contact with a child whenever it is in the best interests of that child to do so. This applies regardless of whether a domestic violence order exists.
An application for a protection order can be made over a wide range of matters. A protection order can address any conduct that ‘in any way causes the child to suffer or exposes the child to the risk of suffering’ emotional or psychological harm, along with physical harm. This means that victims of emotional coercion and unreasonable jealousy could seek protection from their former partner. A protection order can cover any of the following: The ground rules about relief are slightly different. The Judicial Officer can impose a restriction as long as it is within the realm of what the victim wants. It must be necessary for the victim to have this protection from the other party in order to protect the child or safeguard their wellbeing. This flexibility wraps around the protection order’s purpose: keeping the child safe. However, Judges will not impose orders that duplicate orders made by State Courts for domestic violence. In those instances, particularly when there is already a protection order in place, the Court will defer to the State Court.
The best part about these orders is that they are legally enforceable. Breaches of a protection order can lead to fines or penalties, including imprisonment. They are binding on all members of a family – so if a parent is subject to a protection order because of their violence to the child’s mother, the protection order also prevents the partner from being violent to the child. If the partner does this, then the child’s grandmother for example, if she discovers this violence, can call the police and have the offender prosecuted and imprisoned.
Final Thoughts / Additional Resources
In this article, we examined how to prove emotional abuse in family court. We discussed the definition of emotional abuse as it pertains to family law, and explored various techniques and documentation methods for proving such abuse in court. Additionally, we highlighted the importance of hiring an experienced attorney to ensure your rights and interests are protected in the proceedings.
Proving emotional abuse can be a crucial factor in family court cases, especially when there are allegations of child endangerment or domestic violence. It’s always best to have a skilled attorney on your side who can help you navigate the complex legal process .
If you believe you are the victim of emotional abuse, taking proactive steps to obtain legal counsel is of utmost importance. For additional resources and support, please consider the following:
Women’s Resource Centers – these centers provide access to support services, legal help, and counseling to victims of emotional and psychological abuse.
National Domestic Violence Hotline – this hotline offers 24/7 support to victims of domestic violence including emotional abuse.
BUILD – the BUILD Initiative advocates for the prevention and treatment of child abuse and neglect.
RAINN – the Rape, Abuse & Incest National Network offers numerous resources and services to those who have been sexually assaulted.
