Tag Archives: criminal statutes

Is it Legal to Spank My Child?

We all know that there are both moral and psychological debates about whether corporal punishment is good or bad for children, however we, as lawyers, only examine the level of corporal punishment that will attract the attention of the Department of Children and Families or the criminal authorities, which is what this blog is dedicated to. Do you want to know whether the way you are disciplining your child is legal or not? Okay, good, read the rest.

The definition of “abuse,” in Florida’s dependency statute states that corporal discipline does not in and of itself constitute abuse when it does not result in harm to the child, as stated in a previous blog.  As great as this definition is, it still doesn’t tell us where the line is between acceptable and unacceptable corporal punishment.  As with many things, examples are the best way to show exactly what this definition means.

Cases that have been decided by Florida’s appellate courts give us some guidance and insight into exactly what the definition of abuse by the Florida dependency statute refers to. One case (M.O. McC. v. Dept. of Health and Rehabilitative Services, 575 So. 2d 1352 (Fla. 2ndDCA 1991)), which I won on appeal, involved a stepmother who was accused of using excessive corporal punishment when she paddled her 10-year-old stepson 4-5 times, which was consistent with the structured disciplinary plan developed with the child’s therapist. When the stepson, Paul*, came to live with his father and stepmother at age 7, he suffered from emotional problems that came about due to severe neglect, inconsistent discipline and an non-nurturing early childhood while with his mother. For several years, the father, stepmother and Paul had worked with a therapist to develop a structured plan for dealing with Paul’s misbehavior and acting out.  One of the components was that for a certain behavior, Paul would receive 4-5 whacks with a paddle.  Until the incident that brought the stepmother to the attention of the Department of Health and Rehabilitative Services, the father had administered the discipline. However, during this time period, the father, who was in the military, was deployed for several months, and the discipline was left to the stepmother. Paul wiggled and squirmed while the stepmother administered the paddling, and the paddling left 2 red marks approximately 1 ¼ inch and ¼ to ½ inch wide on the unbroken skin of Pauls’s shoulder. The next day, a day care worker saw the marks and called the Department of Health and Rehabilitative Services. The Department didn’t file a dependency petition or initiate criminal charges; instead, they administratively classified the incident as child abuse.  The stepmother appealed a ruling, by a hearing officer, stating that her actions were not child abuse, and the appeal court reversed.  The panel of judges found that, although the two red marks were temporary disfigurement (physical injury), there was no evidence that the punishment was excessive.  The court said that the stepmother should not be classified as a child abuser based upon her good faith adherence to a therapeutic plan agreed upon by the father with the aid of an expert, and which had resulted in improvement in Paul’s behavior. The appellate order ordered that the stepmother’s name be expunged from the child abuse registry.

In another case, the appellate court agreed that there was child abuse and approved a trial judge’s entry of an injunction against a father who spanked his daughter several times with a belt.  He didn’t leave any marks on the daughter; however he made the daughter remove all of her clothes just prior to the beating, making this a case of child abuse.   The father had beaten the daughter on numerous occasions with a belt or shoe, after demanding she take her clothes off.  The daughter had been previously abused sexually by the mother’s ex-husband (not the father), and she felt humiliated by having to take her clothes off.   The daughter’s history of sexual abuse and her negative psychological reaction to unwanted touching changed what could have been acceptable corporal punishment to child abuse. The father insistence that his discipline was appropriate and necessary didn’t help his position.  The appellate court agreed with the issuance of the injunction against domestic violence and affirmed the trial court’s decision.

There are criminal statutes, such as Florida Statute 827.04., that address child abuse, which are not the subject of this article.

If you are unsure of whether your discipline is inappropriate, consult with an experienced family law attorney skilled in dependency and child abuse issues before your actions are brought to the attention of authorities.  If a state authority accuses you of excessive corporal punishment, consult with a skilled attorney.