Corporal punishment as a disciplinary method for children is a controversial topic that divides experts, psychologists and even parents themselves. This encompasses spanking, slapping, pinching, hitting with a belt or a stick, and even forcing a child to consume soap or hot sauce. Some people believe that corporal punishment is an effective tool when used sparingly to teach a lesson and establish a deterrence by negative reinforcement. Other people believe that corporal punishment is unnecessary and amounts to domestic violence that should be criminally punished. What do family court judges consider appropriate for corporal punishment if at all? Can a parent’s use of physical discipline lead to a modification of custody and parenting time in Michigan?
Domestic violence is an explicit factor that must be considered in child custody disputes. MCL 722.23(k). Although it is only one of several “best interests of the child” factors, the court does not have to give equal weight to each factor and may determine specific factors are more compelling than others. Does physical discipline of a child constitute domestic violence?
In Brown v Brown, __ Mich App __;__ NW2d __ (2020)(Docket No. 350576), a mother filed for change of custody due to numerous concerns about the father’s home, including allegations of domestic violence being perpetrated against the children. Testimony at the custody trial established that the father’s standard response to “willful disobedience” involved “discussing with the child the reason he or she was being punished, prayer, spanking the child on the buttocks approximately five times with a PVC pipe, and expressions of love at the end of the ritual.” The father “commonly used sufficient force to leave red marks on the children’s skin for the rest of the day, and his spankings once left a child with bruise.” “The parties’ eldest daughter indicated that she could sometimes hear ‘the swing of the paddle’ and ‘the cries of the kids’ from another room.” There was also evidence presented that the father exercised abusive treatment towards family pets such as throwing the dog against the wall for chewing on shoes, kneed another dog in the chest for stealing food, and shot an airsoft pistol at the cat on the counter. The father maintained that his form of discipline was based on his religious beliefs and not malicious intent. The trial court determined that his corporal punishment was domestic violence and the abusive treatment of the pets served to terrorize and intimidate the children into obedience. Ultimately, the judge modified custody in favor of the mother. The father appealed to the Michigan Court of Appeals.
On April 9, 2020, the appellate court ruled that the trial court did not err in its decision and properly categorized the corporeal punishment in this case as domestic violence. Since the term “domestic violence” was not defined in Michigan’s Child Custody Act, the Michigan Court of Appeals adopted the definition from the Domestic Violence Prevention and Treatment Act, MCL 400.1501 et seq, that it constitutes “the occurrence of any of the following acts by a person that is not an act of self-defense:”
- “Causing or attempting to cause physical or mental harm to a family or household member.”
- “Placing a family or household member in fear of physical or mental harm.”
- “Causing or attempting to cause a family or household member to engage in involuntary sexual activity by force, threat of force, or duress.”
- “Engaging in activity toward a family or household member that would cause a reasonable person to feel terrorized, frightened, intimidated, threatened, harassed or molested.”
Under this framework, the Court of Appeals determined that the father’s physical discipline amounted to domestic violence. His corporal punishment “involved the infliction of injury on members of his household.” In addition, “a combination of cruelty and serious physical harm with expressions of love would further inflict mental harm upon any reasonable person.” Finally, the violent treatment of the family pets to which the children have a significant emotional bond to would cause the child “to feel terrorized, frightened, intimidated, threatened, harassed or molested.” The trial court did not make a mistake under this evidence and the custody modification was affirmed.
It should be noted that the father had sole physical and legal custody of the children before the motion to modify custody was filed with the court. After the motion was granted, the father was reduced to limited parenting time with primary custody resting with the mother. The corporal punishment issue was so significant in this case that it changed both parent’s positions completely.
This does not mean that physically disciplining your child is illegal in Michigan. The child abuse criminal statute explicitly “does not prohibit a parent or guardian, or other person permitted by law or authorized by the parent or guardian, from taking steps to reasonably discipline a child, including the use of reasonable force.” MCL 750.136b(9). What constitutes “reasonable force” is a question of fact depending on the observer. While a county prosecutor may not authorize charges for child abuse if he or she believes the force is not excessive, it does not stop CPS from taking action based on these concerns or a family court judge from changing custody or parenting time.
The moral of the story is that if you are a parent who is the subject of possible divorce, custody and parenting time proceedings with young children, then you may wish to strongly reconsider your position on corporal punishment as a disciplinary tool. Depending on the views of the other parent and the court, the use of spanking to correct bad behavior can result in your entire custodial arrangement being changed. You should be sure that your family law lawyer is fully informed on your disciplinary methods in your household so that you are properly prepared to defend any adverse action in circuit court.
If you or a loved one have questions about a family law matter or need legal representation, then do not hesitate to contact the experienced attorneys at Kershaw, Vititoe & Jedinak PLC for assistance today.
