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The Gilmer Law Firm, PLLC

Tuesday, February 18, 2014

Corporal Punishment in New York City: Discipline vs. Abuse

A mother in Massachusetts was recently arrested after patrons at a supermarket called police to report she had abused her 5-year-old son.

Witnesses say she began to spank the child while in the check-out line of the store. Onlookers urged her to stop,  but she continued. Roughly a dozen patrons then followed her out to the parking lot, wrote down her license plate number and called police. She explained she had merely been disciplining her son, an "active" child. However, she was arrested on charges of assault with a dangerous weapon on a child under 14. Local social services have opened a case file on her and her family.

Our Brooklyn family law attorneys know that parents of young children will at some point inevitably lose their temper. In some families, corporal punishment is considered a moral and effective form of discipline. There are some who argue it isn't used enough, which explains some of our societal failures.

But is corporal punishment legal in New York?

The answer is yes. However, that does not necessarily mean that the New York Administration of Children's Services won't  get involved in cases of legal child discipline. What one family perceives as perfectly normal, another may deem harsh.

These kinds of claims will often arise in child custody battles, where one parent interprets the corporal punishment as discipline, while another deems it abusive.

In the end, it's often social workers who are tapped to make the judgment call. Such a determination, even if it doesn't result in arrest, can have a profound impact on an individual and a family.

Setting aside the various moral arguments for and against spanking, let's focus here on the legal aspects.

Corporal punishment for children in New York is legal. However, parents should be mindful of N.Y. FCT. Law 1012. This law holds that a child (that is, a person under the age of 18) could be considered "neglected" when his physical, mental or emotional condition has been impaired or is in imminent danger of becoming impaired due to his parent or caregiver "unreasonably inflicting or allowing to be inflicted harm, or substantial risk thereto, including the infliction of excessive corporal punishment."

This law is painfully broad, and is open to a wide degree of interpretation.

The state's criminal law, specifically N.Y. Pen. Law 35.10, is a bit narrower in its definition of justification for use of physical force against children. This law states that a parent, guardian or person entrusted with the care and supervision of a person under the age of 21 can use physical force (but not deadly physical force) upon such person when and to the extent that he reasonably believes it necessary to maintain discipline or to promote the welfare of such person.

The key work here is "reasonably," and that is open to interpretation of the court.

Some states have taken these laws a step further by specifically defining "how hard is too hard." In Texas, for example, disciplinary spanking is confined to the buttocks. A bare hand may be considered abusive, but the use of an instrument, such as a belt, may not so long as injury does not occur. A child who is bruised or requires medical attention may be considered abused.

However, New York doesn't offer up such specifics.

What is clear is that the standard for proving child abuse stemming from corporal punishment is much higher in criminal cases than in family court. So even if hitting or spanking a child for disciplinary purposes may not land you in jail, it could very well impact your ability to maintain custody of your children. The family court judge may require you to attend parenting classes or some type of anger management course - at your own expense, of course. 

In some cases, ACS may petition the court to have your children removed from your home, resulting in trauma to both you and the children.

Successfully fighting back against these sorts of ACS actions requires the assistance of an attorney who is experienced in New York family law.

Contact the Brooklyn Family Law Office of George M. Gilmer at (718) 864-2011.


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