DID YOU SPANK YOUR CHILD WITH A SHOE AND ARE WORRIED ABOUT THE CONSEQUENCES?

At a time when political correctness is the hot topic among many in the world of politics and punditry, many parents may be left in a state of wonderment when it comes to disciplining minor children. Just how far is “too far”? How much freedom do I have regarding my ability to choose how my child is disciplined? To what extent can the government really control how I discipline my own child? When can I be disciplined for the manner in which I impart parental guidance over my children?

Although not an exhaustive examination of the governing law, one recent Second District Court of Appeal case reviewed a Juvenile Dependency Trial Court’s analysis of an example of the manner in which a parent disciplined the minor child in In re D.M.(2015) S.O.S. 5600 [filed November 24, 2015, Second District, Div. Two, certified for publication].

In the case of In re D.M., the trial court was a juvenile dependency proceeding regarding whether the trial court should assert dependency jurisdiction over the minor child based on parental conduct. When juvenile dependency jurisdiction is asserted, the county governmental agency removes a minor child from the offending parent and places the child with a qualified relative or in foster care. Reunification services and visitation for the parent are discretionary and the placement of the child may be temporary or could become permanent depending on the circumstances of the case. The juvenile dependency court in In re D.M. ruled in the affirmative and asserted dependency jurisdiction. More specifically, the trial court asserted dependency jurisdiction on the ground that “hitting children with shoes” on “repeat occasions” “is not a proper form of discipline, and [it is] physical abuse.”

The main question at issue on appeal was whether a parent’s spanking of her minor child on the buttocks with her bare hand and with a sandal categorically constitutes“serious physical harm” sufficient to invoke dependency jurisdiction under Welfare and Institutions Code §300 et seq. In its analysis, the Court of Appeal examined whether the conduct of the parent qualified as “reasonable parental discipline”.

The Court of Appeal reversed the trial court decision. The Court reasoned that the trial court erred by not considering the genuineness, necessity or reasonableness of the mother’s use of spanking as a disciplinary measure and thus applied a blanket, categorical, rule, which is inconsistent with the law. To that end, Welfare and Institutions Code §300(a) specifically and expressly provides that “‘serious physical harm’ does not include reasonable and age- appropriate spanking to the buttocks where there is no evidence of serious physical injury.”

The Court also addressed the longstanding principle of California law that “a parent has a right to reasonably discipline his or her child and may administer reasonable punishment.” The Court explained the relevant civil and criminal code sections defining reasonable parental discipline of his or her child. To determine if parental discipline is “reasonable” the analysis requires examination of:

  • (1) whether the parent’s conduct is genuinely disciplinary;
  • (2) whether the punishment is “necessary” (that is, whether the discipline was “warranted by the circumstances”); and
  • (3) “whether the amount of punishment was reasonable or excessive.”

However, the trial court in In re D.M. did not consider the genuineness, necessity, or reasonableness of the mother’s use of spanking as a disciplinary measure. Rather, the trial court treated the implement of punishment by using a sandal rather than a hand as dispositive. That application is not consistent with the law. Thus, the Court of Appeal rejected the categorical, blanket rule applied by the trial court.

The In re D.M. holding should in no way be read as a green light for abusive or excessive parental discipline of his or her minor children. On the contrary, the analysis of whether disciplinary conduct by a parent toward his or her minor child necessarily requires an examination of whether the disciplinary conduct was reasonable, necessary, and genuinely disciplinary. As a result, although a parent’s right to raise and discipline his or her child is a fundamental interest protected in law, it is not limitless.

Full text of In re D.M. (2015) S.O.S. 5600 [filed November 24, 2015, Second District, Div. Two, certified for publication]


Nathan W. Gabbard is a Certified Family Law Specialist, certified by the Board of Legal Specialization of the State Bar of California and practices exclusively family law in Santa Monica, California.

www.nathanwgabbard.com