Can I Lose Custody Of My Child For A Spanking?

"I have had to spank my child when time-outs don't work, will I lose custody?"

This is actually one of my top 3 questions I have heard from my clients.  Be it with an open hand, or a newspaper, or a shoe, there are parents who do "spank" their children.  But, before I get into the legal discussion, let us first look at the definition of a spanking:

According to Dictionary.com, a spank is, "to strike (a person, usually a child) with the open hand, a slipper, etc., especially on the buttocks, as in punishment."  Merriam-Webster describes a spank as "to strike especially on the buttocks with the open hand".  Breaking down these definitions, one can be confident that a spank involves (1) using a hand, slipper, or shoe, (2) usually on the buttocks of a child, (3) as a mode of punishment towards the child.  The topic below is only about "spanking", not other actions which, to the reasonable person, merit an immediate phone call to 911 (that is for another article).

To my knowledge, there are no surveys out there that show the percentage of parents who spank their children, and whether or not you do, this article is not to pass judgement.  However, when a client/party is in the courtroom, and they start to fear that the other parent will use an occasional spanking of the child as an argument for custody, the client/party may start to regret, panic, and/or fear their past discipline towards the child.  Should the disciplining parent panic?  Short answer:  Not if the court finds it was genuine, reasonable act of discipline.

Longer answer:  The occasional spanking for discipline, if (1) the conduct is genuinely disciplinary, (2) there is a reasonable occasion for discipline, and (3) the disciplinary measure is reasonable in kind and degree, will not by itself cause you to lose custody of your children. Citation for the above guidelines is shown in People v. Whitehurst (1992) 9 Cal.App.4th 1045, 1050.  Two weeks ago, the matter of Los Angeles County Department of Children and Family Services v. Jessica G. (2015 DJDAR 12660) supported these boundaries for acceptable spanking.  In L.A. v. Jessica G., the trial court took away custody from the mother who used her shoe to spank her child on the butt with a "sandal".  The spanking did not leave marks or bruising, and the child admitted the spanking "[did not] hurt too much."  The court ruled "hitting children with shoes" is "physical abuse" and "not a proper form discipline."  The court did NOT discuss the Whitehurst factors (genuinely disciplinary/reasonable occasion/reasonable degree of punishment).  That court, in legal terms, abused its discretion.

If the spanking of a child is to be reviewed at a court hearing, it must be studied by those three factors.  A court cannot simply, by the act of spanking alone, take away the parent's custodial rights without a review of the three factors. 

So, breathe easy, parents.  The occasional 'swat-on-the-butt' is not likely to cost the custody of your child.  Just make sure the spanking is reasonable in its purpose and degree. 

And later, give them a big hug and tell them you love them. 

Call my office if you have more questions about this topic at (951) 276-0500.