States around the country are drawing the line between permissible and excessive corporal punishment in different places. Regardless of where that line is drawn, in high-conflict custody cases, there is always a danger that one parent could accuse the other of child abuse to try to get a leg up in litigation. In highly contentious custody cases, family lawyers should advise their clients to be mindful of their use of corporal punishment, since it makes them vulnerable to allegations of abuse.
By Julie A. Auerbach, Family Lawyer
Historically, corporal punishment has been common practice in child-rearing. Many parents find it to be an effective and acceptable form of discipline. Corporal punishment by parents and other caregivers is legal throughout the country. Corporal punishment in schools is still permissible in many states. But the tide has slowly changed and more and more parents are moving away from corporal punishment. As different views on the efficacy and appropriateness of corporal punishment further develop, disputes on the use of it reach the courts with more and more frequency. When parents are separated and in conflict with one another, there is a greater danger that one parent could be accused by the other parent of misuse or misapplication of corporal punishment. Family law lawyers should be mindful of this changing attitude and advise their clients accordingly.
While corporal punishment is permissible throughout the country, its use is not without restriction. Most states have statutes preserving the right of parents to use corporal punishment, while other states preserve this right through decisional law. But the punishment must be reasonable and not result in serious harm to the child. Distinguishing between reasonable use of corporal punishment and excessive corporal punishment that rises to the level of child abuse is a regular challenge facing our courts. Excessive corporal punishment can arise in several areas of law: criminal, child dependency, and protection from abuse. States do not necessarily define abuse the same in all of these areas of law, i.e., what may constitute abuse under a protection from abuse statute may not constitute abuse under a criminal statute. A parent’s use of corporal punishment may not result in criminal charges – but it could result in the entry of a protection from abuse order against a parent or a loss of parental rights.
States Draw the Line Between Corporal Punishment and Child Abuse in Different Places
Further, in each of these areas of law – criminal, dependency and protection from abuse – states around the country have drawn the line between permissible and excessive corporal punishment in different places.
In the criminal context, the Massachusetts case of Commonwealth v. Dorvil, 32 N.E. 3d 861, 472 Mass 1 (2015) identified three approaches taken in setting the line between corporal punishment and child abuse. The first approach is whether the use of corporal punishment is reasonable. Indiana adopted this approach and identified several factors to be considered when applying this standard, such as the nature of the offense and motive, influence of the example on other children in the family, whether the use of force is reasonable to compel obedience to a proper command, and whether it is unnecessarily degrading or likely to cause serious harm. See Willis v. State 888 N.E. 2d 177 (2008).
The second approach is that there is a parental privilege to use corporal punishment but certain types of force are not permissible. For example, a Kentucky statute prohibits corporal punishment which is “designed to cause or known to create a substantial risk of causing death, serious physical injury, disfigurement, extreme pain, or extreme mental distress.” Ky. Rev. Stat. Ann. Section 503.110.
The third approach combines the first two approaches, providing that the use of corporal punishment must be reasonable and certain forms of corporal punishment are not permissible. By way of illustration, the Delaware criminal code provides for justification of use of force against children to prevent or punish misconduct. The size, age, condition of the child, location of the force, strength, and duration of the force are all factors used in determining if the force is reasonable and moderate. It then goes on to list a number of types of force that are not authorized – throwing, kicking, burning, cutting, striking with a close fist and interfering with breathing.
In the Utah case of Bountiful City v Blaize, 438 P.3d 1041 (2019), the court applied the third approach. The father was convicted of a misdemeanor of child abuse for spanking his four-year-old child and leaving a bruise in the shape of a handprint. The court found that the discipline used by the father was too hard even though the father acted with good faith intent.
In dependency cases, while the remedies are different from criminal cases, courts will often look to their state’s criminal statutes for guidance in determining whether abuse has occurred. In the Pennsylvania case of J.S. v. Department of Human Services, 221 A.3d 333 (2019), the father made the decision to use corporal punishment as a means of disciplining his four-year-old son by smacking him on his buttocks. To make sure he did not hit the child too hard, the father first smacked his own leg multiple times. He then hit the child four times on his buttocks. The court held that when corporal punishment is involved, the test is not whether substantial pain was caused.
Protecting Children from Abuse vs. Maintaining Parents’ Rights to use Corporal Punishment
By definition, corporal punishment causes pain. Instead, the test is whether reasonable force was used in administering corporal punishment. The analysis should focus on the parent’s conduct rather than the result. Citing to the Pennsylvania Supreme Court case P.R. v Department of Public Welfare, 569 Pa. 123, 801 A.2d 478 (2002), the Court noted that there is a need to balance the competing objectives of protecting a child from abuse while maintaining a parent’s right to use corporal punishment. To determine whether reasonable force was used, a court should look to the standard of criminal negligence, which requires proof that a substantial and unjustifiable risk of bodily injury was disregarded. The focus of the inquiry is not the nature of the injury, but the conduct of the parent or guardian, considered under the totality of the circumstances.
In the California dependency case of Gonzalez v. Santa Clara County Department of Social Services, 223 Cal. App. 4th 72 (2014), a mother hit her child with a spoon. The court noted the parental privilege to use corporal punishment as provided for in the criminal statutes when deciding whether the mother’s actions amounted to abuse. It looked at her motive in using the discipline; was it a reasonable occasion to use discipline and was the discipline reasonable in light of the behavior of the child. Since the mother was not necessarily aware that bruising could occur, the fact that bruising appeared is not evidence that the discipline was unreasonable.
The Definition of and Remedy for Child Abuse Depends on the State
Other cases look squarely at the definition of abuse as set forth in their state’s dependency statutes. New York courts have held that a single use of excessive corporal punishment is enough to find abuse in the context of dependency proceedings. See Matter of Jeremiah J., 177 A.D. 3d 740 (2019) (New York) andSmith v. Murphy 517 S.W. 3d 453 (2017). But see the New Jersey Supreme court case of New Jersey Div. of Youth and Family Services, 11 A.3d 844 (2011), which held that occasional slaps on 16-year-old’s face did not constitute excessive corporal punishment. The New Jersey court noted that these cases were very fact-specific and what might constitute excessive corporal against a small child may not be considered excessive corporal punishment against an older child. While the court did not endorse the use of corporal punishment, it found that the punishment did not result in any bruises, scars or lacerations. It went on to note that there is a need for some parental autonomy in child-rearing which may involve the need for physical discipline.
States’ protection from domestic violence statutes have their own definition of child abuse and have different remedies from criminal cases and dependency cases. In an Arkansas protection from abuse case, Smith v. Murphy, 517 S.W. 3d 453, one instance of the father’s use of a leather belt to punish his 4-year-old child was sufficient evidence to support the entry of an order of protection against the father for 5 years. The injuries caused by the father’s use of the belt spanned from the child’s upper back to his knee and caused some bruising and mental anxiety. The court rejected the father’s argument that the court should look to the state’s criminal cases and juvenile code when deciding whether abuse had occurred.
But see the Florida case of G.C. v. R.S. and K.C, 71 So.3d 164 (2011), which held that a parent’s common law right to use reasonable corporal discipline is a defense to a petition for an injunction against domestic violence, even though the domestic violence statute does not reference this common law right.
Use of Corporal Punishment Makes Parents Vulnerable to Accusations of Child Abuse
The different approaches taken by each state in these areas of law illustrates the vulnerability of parents who use corporal punishment. Separated or divorced parents who have acrimonious relationships with the other parent are even more vulnerable. Family law attorneys should advise their clients to be mindful of their use of corporal punishment in today’s environment of heightened sensitivity to child abuse.
Julie A. Auerbach, a partner at Astor Weiss Kaplan & Mandel, focuses her practice in the area of family law. She has written and lectured extensively on the subject of family law, custody, and child abuse – including “Defending a Protection from Abuse Case Involving Children” for the Legal Intelligencer. www.astorweiss.com