Spanking + Accidental Injury = Child Abuse


When parents ask, “Is it ‘child abuse’ to spank my child”, the answer on paper is no. New Jersey prohibits “excessive” corporal punishment, thereby clearly permitting corporal punishment that is not excessive. See, N.J.S.A. 9:6-8.21(c); N.J. Div. of Youth & Family Servs. v. K.A., 413 N.J. Super. 504, 510-11 (App. Div. 2010).

However, the Appellate Division’s interpretations of the K.A. case, the first published opinion to provide a framework to evaluate conduct and consequences that will render corporal punishment to be “excessive”, clearly show that our courts have little to no tolerance for parents who accidentally “injure” a child during the course of a spanking. The most recent unreported decision that demonstrates this point is New Jersey Division of Youth and Family Services v. R.S., A-0074-11T4 (OAL Docket No. AHU 09-1698).

In R.S., the grandmother of a five year old child spanked him on the behind and legs with a belt due to the child’s aggressive behavior toward his teacher. During the course of the spanking, the child squirmed and the belt accidentally hit the child in the face, causing a mark. The Appellate Division concurred with DYFS that this constitutes child abuse, calling the spanking “willful and wanton” misconduct, i.e., reckless.

What made this spanking “reckless”, rather than merely “negligent”? The grandmother should have foreseen that the child would attempt to evade the spanking because he had recently gotten into trouble at school for running away from his teacher. Applying this standard, any child who does not passively and peacefully accept a spanking – i.e., the children who likely need the discipline the most – cannot be spanked absent a finding that the “perpetrator” was “reckless” for using this form of discipline.

The Appellate Division also considers the use of the belt to be of significance. In K.A., the mother balled up her fist and punched her child repeatedly in anger and frustration. This form of discipline was merely “negligent” because it did not cause a visible mark and was considered an “ill-conceived impulse”. Yet, a grandparent who makes a conscious decision to obtain a belt and administer discipline is said to have assaulted the child.

The age of the child was also a distinguishing factor. In K.A., the child was age 8. The Appellate court in R.S. also mentions the P.W.R. case involving a slap in the face of a 16 year old stepchild. Apparently, one should anticipate that a 5 year old will seek to avoid discipline – i.e., squirm when spanked – but that same expectation does not attend to a rebellious teenager.

Perhaps the ruling in K.A. would have been different had the mother taken time to obtain a belt to spank the child on the legs – a clear no-no – rather than simply exploding with multiple punches to the shoulder – a area much closer to the child’s face, the area of concern in this R.S. case.

I speak somewhat tounge-in-cheek to illustrate this point. In reality, spanking occurs in households across New Jersey. What distinguishes one spanking from another when determining if corporal punishment is “excessive” varies from case to case, but generally, these guidelines apply:

1. If you spank, better to use a hand than an object.

2. Spanking is better left to severe mis-behavior – not your run-of-the-mill unruliness, lack of respect, non-compliance or impulsivity seen in children.

3. Try NEVER to leave a mark, bruise, cut, welt, depression, or redness – no matter how faint, no matter how inadvertently caused, no matter where located.

4. If ANY mark is left, better left on lower extremities than near the face.

5. If the child is seen for medical treatment — even if only when sought by DYFS — the child’s report of pain will be considered an additional harm in and of itself.

(This is akin to a judge relying upon a child’s report of feeling “sad” when they overhear parents’ arguing to support a finding that the child’s emotional state is “impaired” by parental conduct. Any discomfort or unpleasantness experienced by a child can and will be used against the parent to bolster a finding of abuse.)

So, the best advice for parents in New Jersey is simply do not spank… or if you do, make sure no marks can prove than you did.

Life (and the law) would be much clearer if the New Jersey legislature would enact legislation banning spanking. Whether we agree with that policy or not, it would provide parents with clarity in terms of what can and cannot be done to modify children’s behavior – rather than causing our judiciary to impute far-reaching assumptions to parents (e.g., that a child will squirm and likely be hit with a belt in his face rather than his legs because he once ran away from a teacher when being disciplined) as a means to qualifying their conduct as “reckless” rather than merely “negligent”.

Mandatory Reporting of Child Neglect may Open the Floodgates


A medical malpractice case published on November 16, 2012, provides us with a new standard – and clear requirements – for reporting child abuse and neglect. In

    L.A. v. New Jersey Div. of Youth and Fam. Svcs, Jersey Shore Medical Center, Dr. Yu, et. al.

, the Appellate Division interpreted the mandatory reporting provisions of Title 9, specifically N.J.S.A. 9:6-8.10, which provides: “[a]ny person having reasonable cause to believe that a child has been subjected to child abuse, or acts of child abuse, shall report the same immediately to [DYFS]”.

In L.A., a physician was sued for medical malpractice because of his failure to report to DYFS a child’s treatment in the Emergency Room. The child ingested cologne and was found to have a blood alcohol content of .035. There was no allegation or concern that this ingestion was intentional or a purposeful act of her caregivers. But, rather, concern arose over whether or not the child had been the subject of inadequate supervision or some other form of negligent conduct. In the child welfare conduct, “negligence” is defined as willful and wanton misconduct – i.e., the recklessness standard. This physician asserted that he had no concern for physical abuse, and therefore, no duty to report to DYFS.

The Appellate Division disagreed. In interpreting the mandatory reporting provisions of Title 9, the Court remanded the case to the trial court for a jury trial on the issue of whether or not the physician breached his duty of care and committed medical malpractice by failing to report negligence (i.e., recklessness) to DYFS. Ultimately, this ruling is consonant with the rubric of analysis in child welfare cases – child abuse and neglect endangers child safety, and therefore, should be addressed through the procedures established by law. However, L.A. raises the series of concerns for New Jersey families.

First, the Appellate Division notes that the mandatory reporting is no longer just for medical professionals, but for “any person”. Since L.A. requires reporting of negligent conduct for physicians, that mandate also applies for “any person” who becomes aware of negligence.

Second, the L.A. Court held that the reporting requirement is not triggered by “mere suspicions”. However, little more than that is required:

[T]he triggering of the obligation to report, especially in the context of civil litigation involving professional malpractice, does not require the potential reporter to possess the quantum of proof necessary for an administrative or judicial finding of abuse or neglect. All that is required by N.J.S.A. 9:6-8.10 is “reasonable cause to believe.”

How exactly are citizens in this State to know when they have “reasonable cause to believe” that a child has been subjected to “negligence”? Our case law defines negligence in child welfare as recklessness, and the distinction between mere negligence and gross negligence is fact sensitive. Even among our courts, there is no agreement. Each case turns on its facts. When in doubt, individuals are more likely to report than not to – especially since the L.A. Court made a point of noting that “[f]ailure to report as required by N.J.S.A. 9:6-8.10 is a disorderly persons offense punishable by incarceration for up to six months. N.J.S.A. 9:6-8.14, 2C:43-8.”

For certain, the L.A. Court was chagrin to learn that a physician did not so much as inquire as to how a 2 year old child accessed and ingested this potentially lethal, noxious substance. The Court has given real teeth to the mandatory reporting requirements for all citizens. However, the absence of any real teeth on the other side of the reporting spectrum – i.e., the knowing reporting of false allegations that lead to DYFS involvement – causes me great concern that the agency will continue to be the recipient of CYA-reporting, over-reacting in its highest form due to a well-intentioned, but perhaps slightly over-broad ruling.