The laws of the state of Indiana give parents a great deal of latitude in the raising of their child(ren). In fact, the United States Constitution contains the fundamental right for biological parents–above others--to raise their children as they see fit: whatever their religion, morals, and values may be1. To third parties and outsiders, this is sometimes very hard to accept if they believe they could better parent.
However, this fundamental right is not a blanket exception for parents to be neglectful or cause physical or mental harm to their children. Where the parents are divorced, there are a number of provisions that may be used to protect children, ranging from custody modification2 to supervised parenting time.3 Even in marriage, there are obvious limitations and ways protect children. The topic this blog post will examine is physical discipline. In any case, the Department of Child Services4 may investigate.
It is important to be cognizant of the fact that the means of accepted physical discipline for Children has shifted (significantly) in the past half century. Corporal punishment used to be much more prevalent, where now, timeouts and redirection have become the more preferred discipline norm. The use of physical punishment is sometimes an issue in divorce and custody matters. Often, parents have different discipline styles. Is it okay for one parent to punish the child physically, or and/or at what point is it battery/abuse?
At the most extreme level, excessive discipline may lead to termination of that parent’s right to the child, severing the legal bond between a parent and a child. The State has a civil burden of proof in these situations. In addition, or separately, a parent may be charged with criminal acts, neglect of a dependent to battery for physical harm5; this may result in incarceration of the parent if convicted by a higher evidence standard–beyond a reasonable doubt.
With use of force in a criminal prosecution, such as could occur in spanking or whipping of a child, a parent may raise an affirmative defense to the crime–the parental privilege (right to do so). An affirmative defense is one that even if the State proves the elements of battery, the State has an additional burden. This is to convict a parent for battery of a child with this privilege raised, the State must also prove (1) the force used was unreasonable or (2) the defendant’s (parent) belief that such force used was necessary to control the child and prevent the misconduct was unreasonable.6
The Indiana Court of Appeals recently addressed parental privilege in Ceaser v. State (2011). In this case, Indiana Court of Appeals faced an appellate record with a mother (Ceaser) who had had her daughter previously taken from her due to battery of the child. Then, two years later, Ceaser was again charged with battery (a felony) for whipping her daughter.
Ceaser claimed she was disciplining her child, and her actions fell under the parental privilege. In a case of first impression, the Court of Appeals affirmed the trial court’s admission of evidence of Ceaser’s prior conviction for battery of her child to show lack of accident and criminal intent relevant to the State’s burden to rebut the parental privilege.
This Court of Appeals case, again the first such to be decided in Indiana, is on a point of key importance in criminal and family law and the State’s rights to protect children versus a parent’s right to raise and discipline his or her children. This decision very carefully considers these rights and strikes the right balance: Physical discipline is still appropriate, but only if it comports with our present social values, as determined by a jury if a case reaches that level (and there is a right to a jury trial).
While parents have broad rights to raise their children without interference, those rights are not absolute. There are limits, especially when it comes to the safety of children. Reasonableness is the key in the above case. If physical punishment is going to be used on children, it must be reasonable.
Sometimes this is muddied in the context of a divorce or paternity case: What happens if your child’s other parent has a style of discipline you do not agree with? The first way to address the situation is to communicate about it. However, if that is not an option or does not work, be aware of any concerns regarding the discipline and some of the boundaries and resources noted in this blog post.
In the above case, Ceasar’s child had welts that were still visible and painful the next day; and her teachers brought this to the attention of the proper people, CPS and law enforcement. As to physical discipline of a child, this case informs where the boundaries may be drawn.
Discipline is within a parent’s rights; however harming a child is certainly not. Know the limitations for both yourself and the other parent, and report any unreasonable discipline to the proper authorities. You, as a parent, are your child’s advocate, and are responsible for protecting your child and disciplining only through reasonable means.
Ciyou & Dixon, P.C. practices law throughout the state of Indiana. This blog post was written by Bryan Ciyou, esq. and Jessica Keyes.
- Troxel v. Granville, 530 U.S. 57 (2000).
- Ind.Code § 31-14-13-6 (Paternity Custody Modification); Ind.Code § 31-17-2-21 (Divorce Custody Modification).
- Ind.Code § 31-17-4-2 (Divorce Supervised Visitation).
- Ind.Code § 31-33-8-1 (Investigation of Abuse/Neglect by DCS).
- Ind.Code § 35-42-2-1 (Criminal Battery).
- Ceaser v. State, 2012 WL 989584 (Ind.App.).