To Equal Child Abuse, “Excessive Corporal Punishment” must be … well… Excessive!


On June 2, 2010, the Appellate Division issued its first published decision on the issue of what constitutes “excessive” corporal punishment.  In DYFS v. K.A., the Court noted the “general proposition that a parent may inflict moderate correction such as is reasonable under the circumstances”.   In determining what is reasonable, the Appellate Division cited to the definitions of what constitutes abuse in the Administrative Code, specifically N.J.A.C. 10:129-2.2. That list includes death, head injuries, burns, wounds, and other serious physical injuries.

The focus is on the harm to the child, not the mental state of the parent.  The Court acknowledges that “a situation where the child suffers a fracture of a limb, or a serious laceration, or any other event where medical intervention proves necessary, may be sufficient to sustain a finding of excessive corporal punishment.”   Thus, even where medical attention is necessary, we do not have per se excessive corporal punishment “provided that the parent or caregiver could have foreseen, under all of the attendant circumstances, that such harm could result from the punishment inflicted.”

In K.A., the Court noted that the only visible injury to the child was a bruise, which “never exposed [the child] to any further harm if left untreated”.  Thus, the Court held, that in the absence of per se excessive corporal punishment, the Court must examine the circumstances facing the parent.

The parent in K.A. notably acted out of frustration – an “ill-advised impulse”.  However, in viewing the totality of the circumstances, the Court noted that “[t]hese blows, though undoubtedly painful, did not cause the child any permanent harm, did not require medical intervention of any kind, and were not a part of a pattern of abuse.”

Defense counsel is now armed with well-reasoned, binding authority which clearly demonstrates that an isolated incident of bruising a child does not a child abuser make.  Common sense codified in case law.

Criminal Defense Counsel may also serve as DYFS Counsel


On April 14, 2010, the Appellate Division rendered a decision in DYFS v. N.S., 412 N.J.Super. 593 (App.Div.2010), which reconciled the conflicting authority on the issue of representation of an accused parent in both a criminal matter and a DYFS matter.  The Division routinely objects to counsel representing the accused parent in both matters, premised upon the confidentiality provisions of N.J.S.A. 9:6-8.10a, which limits access to DYFS records to a limited number of individuals, not including criminal defense counsel.

Two published, conflcting trial court decisions had addressed the issue of representation in criminal and DYFS matters by the same attorney.  One trial court permitted the representation in parallel proceedings; one created an asbolute bar to such representation.

The N.S. Court finally resolved the issue by creating a case-by-case analytical framework, whereby a motion should be filed by the attorney seeking to serve in both roles, on notice to the Division, so that any confidentiality concerns can be addressed.  The Court noted that any concerns may be militated by use of a protective order barring release of certain records.

Of particular note is the Court’s suggestion on preserving confidentiality, while allowing the parent counsel of her own choosing: “a prohibition on providing photocopies of various records to parent-defendants could be effectuated”.  Of course, this necessarily implies that no such prohibition presently exists.  Thus, defense counsel should be mindful of this language when denying parents copies of DYFS records that will be used in their case.