Is Spanking a Child Illegal?

January 16th, 2012

This blog post is not about the morality or immorality of a parent spanking a child, nor is this post about the positive or negative impact spanking may or may not have on a child’s development.  Rather, this post is about the legality of a parent spanking (i.e. inflicting corporal punishment on) his or her child under the laws of the State of California.

Spanking is Not Illegal So Long As….  In the court of appeal case, People v Whitehurst (1992) 9 Cal. App. 4th 1045, 1050, it was held that parents have the legal right to inflict “reasonable” corporal punishment to discipline a child.  However, the court also warned, “corporal punishment is unjustifiable when it is not warranted by the circumstances, i.e., not necessary, or when the punishment, although warranted, was excessive.”

While there are no reported family law cases in California concerning corporal punishment, there was a case that originated in Orange County, in which the punishment was upheld in an unreported court of appeal decision.  In that case, the judicial officer correctly observed that appropriate corporal punishment is when “kids get their hands slapped and things like that in such a manner it doesn’t really cause pain. It is symbolic of ’No’” and therefore not illegal.

Spanking Is Illegal When…  In the unreported case from Orange County referred to above, the trial court found, in a ruling upheld by the court of appeal, that hitting a child with a belt resulting in bruising on the child was unlawful corporal punishment. The court explained, “Physical violence is abhorrent in the law.  If you ask yourself if one adult did this to another adult, would it be abuse and would it be an assault, and the answer is yes. If you do that to a child, that is child abuse and that is the guide the court uses… When you start using an instrument leaving bruises, that is when it is without any doubt in the court’s mind over the limit” because the punishment inflicted was unjustifiable, excessive, and qualified as child abuse.

While this Orange County case involved the use of a belt, I believe that, if the use of a hand to hit a child leaves bruising or is otherwise deemed unnecessary or excessive, it would also be found to be unlawful corporal punishment.

Domestic Violence Restraining Orders.  If corporal punishment crosses the line – meaning it is unjustified or excessive − the parent inflicting the corporal punishment is subject to being restrained under the Domestic Violence Prevention Act (DVPA).  If this occurs, there are significant implications in a custody proceeding.  If the corporal punishment is neither unjustified nor excessive, then the act of spanking the child should not be restrained.  Remember, parents do have the right to inflict “reasonable” corporal punishment to discipline a child.

Best Interest of Child Standard.  Clearly, if a restraining order is issued under the DVPA as a result of unlawful corporal punishment, the court must consider this history of abuse in making a custody determination.  The more problematic question is whether or not the court can consider the appropriate (i.e. lawful) use of corporal punishment in making a custody determination.  While the statute does not address the use of lawful corporal punishment, there is no doubt the court has broad discretion in determining the best interest of a child.  This definitely requires a fact-specific, case-by-case analysis.

Conclusion.  The issue of corporal punishment – a parent’s right to use it pitted against the court’s right to determine the best interest of the child – is fraught with legal concerns.  Each parent must decide if the use of lawful corporal punishment is important and necessary in the parenting of his or her child.  Corporal punishment is an emotional issue and lots of litigation occurs in the trial courts over the topic so it is important to weigh one’s desire to use lawful corporal punishment against the cost to pursue the issue in court.