Question: I admit – I sometimes ‘bop’ my children on the bottom when they aren’t listening. My child’s father, who has been largely uninvolved, has told my children that this is child abuse, and says he will call CPS if he hears that it ever happens again. Because of this, my children are being disrespectful, especially immediately before and after his parenting time. What can I do? I need to be free to parent my children and his disrespect isn’t helping.
So, yeah – this is a tough question. And, before I get going, I also feel compelled to say that any response I give here is not coming from a place of judgment or condemnation. I understand that different families parent differently and that what works for you might not be what has worked for me; neither of us may understand the choices that the other is making, and that’s okay. I’m not here to judge, but I am here to try to help.
As far as custody and visitation are concerned, the standard is the ‘best interests of the child.’ There are ten factors included in Virginia’s ‘best interests’ statute, and these include the following:
- The age and physical and mental condition of the child, giving due consideration to the child’s changing developmental needs;
- The age and physical and mental condition of each parent;
- The relationship existing between each parent and each child, giving due consideration to the positive involvement with the child’s life, the ability to accurately assess and meet the emotional, intellectual, and physical needs of the child;
- The needs of the child, giving due consideration to other important relationships of the child, including but not limited to siblings, peers, and extended family members;
- The role that each parent has played and will play in the future, in the upbringing and care of the child;
- The propensity of each parent to actively support the child’s contact and relationship with the other parent, including whether a parent has unreasonably denied the other parent access to or visitation with the child;
- The relative willingness and demonstrated ability of each parent to maintain a close and continuing relationship with the child, and the ability of each parent to cooperate in and resolve disputes regarding matters affecting the child;
- The reasonable preference of the child, if the court deems the child to be of reasonable intelligence, understanding, age, and experience to express such a preference;
- Any history of (i) family abuse as that term is defined in § 16.1-228; (ii) sexual abuse; (iii) child abuse; or (iv) an act of violence, force, or threat as defined in § 19.2-152.7:1that occurred no earlier than 10 years prior to the date a petition is filed. If the court finds such a history or act, the court may disregard the factors in subdivision 6; and
- Such other factors as the court deems necessary and proper to the determination.
If custody and visitation were being modified, the court would use the best interests of the child factors to determine what kind of parenting plan would be appropriate under the circumstances.
Is spanking against the law in Virginia?
I don’t practice criminal law, but it is my understanding that spanking is not a criminal act in Virginia. All that means is that, if you spank your kids, you will not be charged with a crime. Does that also mean you can’t lose custody – or lose some parenting time? I think, probably, not. Though I don’t personally have any firsthand experience on a spanking case, I think that this information would not be generally well-received by the court.
What would an expert witness say about spanking?
Parenting standards have come a long way since the 1950s, and I think, for the most part, spanking has fallen completely out of favor. In fact, as far as I am aware, there are many child development experts who would argue that spanking is not developmentally appropriate or effective. The reason this matters is because, in order to win a case, we need evidence. Evidence – like whether spanking is good or bad for children – would likely be important here and, in order to convince the court of our position, we may need to involve an expert.
I think there would be many experts willing to testify that spanking is bad. Fewer would, I think, be willing to go on the record as being pro-spanking. This is not to say, of course, that they aren’t pro-spanking, or that they haven’t spanked their own kids, but just that it’s probably not going to be an easy position to adopt. It may even damage their career professionally. (Hey, we’re all child development experts until our kids are acting like feral monsters, amirite?)
In that sense, I think the child’s father’s case – in this instance – would be easier to defend.
Would the Guardian ad litem have an issue with spanking?
For another thing, I would be worried about the Guardian ad litem’s involvement. Say she interviews the kids and they say, “Oh, mom hits me,” and “I don’t like when she hits me,” and, “It hurts.” All pretty basic things to say, right? Especially if these kids – impressionable as they are – are being told by their father that this is child abuse and they’re either confused or they’re drunk on the power over you that this gives them. (They’re just kids; it’s not their fault.)
I think it would be very easy for the Guardian ad litem to form a less-than-favorable opinion of you, based on this. Would she recommend a change in custody? I have no way of knowing. But I admit: I don’t love the odds.
What would Child Protective Services do?
It’s always hard to predict CPS. Chances are good that CPS would do an investigation based on the allegations from your child’s father – assuming, of course, he’d actually do something about it. It’s likely that a child support allegation would be unfounded and the case would be closed, unless CPS found something else. I’ve seen crazy things happen when CPS gets involved, so there are never any guarantees.
But an unfounded CPS report doesn’t mean that there’s nothing there – or that the court wouldn’t take issue with other testimony or evidence provided by your child’s father. There’s a difference between a criminal act and something that is just generally NOT in a child’s best interests. It’s up to the judge to determine custody and parenting time, even if criminal charges are not involved.
My take, though? If I were you, I’d find a different mode of discipline. There are so many resources out there for parents nowadays that I think you can probably find some alternative methods that work for your family.
Again: I’m not here to judge or condemn. I’m a mom, too, and I get it: this parenting stuff is SO HARD, and there’s no manual anywhere. But I also think that, in the court context, spanking is a risky choice. So, in the meantime, work to find a different way to maintain order in your home. (Because there’s definitely no question you’ll still need to do that, especially if he’s constantly undermining you.)
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