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Woman Who Used Shoe to Hit Child Avoids Loss of Custody in Court


There’s no question that “the experts” do not condone the type of spanking and corporal punishment that was more common in this country decades ago.

But disagreements over how to punish children remain, especially in family law cases.  A recent case called In re D.M. decided last week by the California Court of Appeal illustrates how controversial the subject still is.  In this case, a judge ruled that a mother had inflicted “serious physical harm” as defined by California law because she had hit her children with shoes on at least two occasions.

The woman appealed, however, and won.  The Court of Appeal decided that it was first necessary to look at whether “the discipline is genuinely disciplinary, is warranted by the circumstances, and is reasonable (rather than excessive) in severity”.  In this case, a seven-year-old and a three-year-old were occasionally spanked, although no bruises were left.  The spanking would occur on the buttocks with the mother’s bare hand or with a sandal.

The trial court judge said that “hitting children with shoes is not a proper form of discipline, and it’s physical abuse”.  But a majority of the appeals justices noted that here in California, “a parent has a right to reasonably discipline his or her child and may administer reasonable punishment”.  The majority further stated that the judge had failed to consider the “necessity or reasonableness of mother’s use of spanking as a disciplinary measure”.  The justices also took issue with the conclusion that the implementation of punishment by a sandal rather than just a hand made this case automatic abuse.  Indeed, in a previous case, another appeals court had said “[w]e cannot say that the use of a wooden spoon to administer a spanking necessarily exceeds the bounds of reasonable parental discipline”.

As a result, in the sandal case, the matter was sent back to the trial judge to reconsider her ruling.  But not everyone agreed.  The matter was heard by three justices, and one of them wrote a dissent, making several arguments, including one that noted that corrective action is needed when “there is a substantial risk of serious future injury based on the manner in which a less serious injury was inflicted”.  The dissenting justice claimed that the evidence at trial showed “repeated striking of a child three years old and younger, with a shoe, while screaming and yelling at the child” took place.

This case was heard in juvenile court.  The Los Angeles County of Children and Family Services had sought to establish court involvement based on what occurred.  This is different from family law, where the battle over children is between two parents — not one parent and the government.  In the D.M. case, the county went after the father as well for physically and sexually assaulting the mother in the presence of the children.  But he did not appeal the trial court’s decision to start a case regarding the welfare of the two children.

Because the D.M. case was certified for publication, it must be followed by all trial courts in California, including right here in San Diego, unless there is another appeals court decision that conflicts with the D.M. decision.

Also, when parents are battling each other in family court, a judge might order both parents to refrain from using any corporal punishment because the parents cannot agree between themselves over how much physical discipline has occurred or should be allowed to occur.

The post Woman Who Used Shoe to Hit Child Avoids Loss of Custody in Court appeared first on Andy Cook Law.


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