Posted on November 15, 2021

Corporal Punishment In An Illinois Divorce or Parentage Case

Raising kids is not easy. Disciplining children throughout the stressful divorce process is even harder. Parents often resort to spankings or other methods of corporal punishment. When corporal punishment occurs, the other parent will always be tempted to make that corporal punishment an issue…whether it is an issue or not.

While everyone agrees that corporal punishment is not the ideal means for disciplining children, there is much disagreement as to whether corporal punishment in any form is acceptable.

Illinois case law is based on long-standing traditions. Corporal punishment is as old as the Bible.

“He that spareth his rod hateth his son: but he that loveth him chasteneth him betimes.” Proverbs 13:24

“The defense of justifiable use of force in imposing reasonable parental discipline of a child is deeply rooted in the common law of this state.” People v. Mulvey, 853 NE 2d 68 – Ill: Appellate Court, 2nd Dist. 2006

Does Corporal Punishment Affect Parenting Time Or Parental Decision Making In An Illinois Divorce or Parentage Case?

Before corporal punishment and/or child abuse is considered, it is presumed that both parents are fit parents and can enjoy time with their children.

“It is presumed both parents are fit and the court shall not place any restrictions on parenting time… unless it finds by a preponderance of the evidence that a parent’s exercise of parenting time would seriously endanger the child’s physical, mental, moral, or emotional health.” 750 ILCS 5/602.7(b)

One of the purposes of the Illinois Marriage and Dissolution of Marriage Act is to “protect children from exposure to conflict and violence.” 750 ILCS 5/102(4)

“The court shall allocate parenting time according to the child’s best interests.” 750 ILCS 602.7(a)

The best interests of a child are, obviously, to have the child in an environment without violence.

“In determining the child’s best interests for purposes of allocating parenting time, the court shall consider all relevant factors, including…the physical violence or threat of physical violence by the child’s parent directed against the child or other member of the child’s household” 750 ILCS 5/602.7(b)(11)

Corporal punishment, if it exists, is going to be a problem for the parent punishing the child. The parent that doesn’t punish the child may be awarded with more time…with a disrespectful and misbehaving child.

Likewise, a court is going to question the judgment of a parent who uses any level of violence to control their children.

“The court shall allocate decision-making responsibilities according to the child’s best interests” 750 ILCS 602.5(a)

“In determining the child’s best interests for purposes of allocating significant decision-making responsibilities, the court shall consider all relevant factors, including the physical violence or threat of physical violence by the child’s parent directed against the child” 750 ILCS 5/602.5(c)(12)

For example, corporal punishment was a critical point in the case of In re Marriage of Kleiboeker.

“The court determined that Gary keeps a tight rein on his family, kept a tight rein on Teresa when he was married to her, and at times feels it necessary to use physical punishment to control his family. It is apparent from the trial court’s decision that the husband’s matter-of-fact attitude in using corporal punishment played significantly in that decision.” In re Marriage of Kleiboeker, 634 NE 2d 1329 – Ill: Appellate Court, 5th Dist. 1994

Corporal punishment will not make or break any parenting time or parental decision making determination by the court. There are a multitude of factors that an Illinois domestic relations court will considered.

“[A] best interests determination cannot be reduced to a simple bright-line test and…a ruling on the best interests of a child must be made on a case-by-case basis, depending, to a great extent, upon the circumstances of each case.” In re Marriage of Fatkin, 2019 IL 123602 (Internal quotation marks omitted.)

The most common result of bringing corporal punishment of a child to the attention of a court is that a court will forbid any future corporal punishment as the court is empowered to order “any other constraints or conditions that the court deems necessary to provide for the child’s safety or welfare” 750 ILCS 5/603.10(a)(9)

Corporal Punishment and Orders Of Protection In An Illinois Divorce or Parentage Case

A party can petition an Illinois divorce court for an order of protection against a parent vis-à-vis a child, if the petitioner is able to characterize the corporal punishment as abuse. An order of protection between a parent and a child is essentially a modification of parenting time…to zero.

“If the court finds that petitioner has been abused by a family or household member…an order of protection prohibiting the abuse shall issue.” 750 ILCS 60/214

What does “abuse” even mean in an Illinois divorce or parentage court?

“”Abuse” has the meaning ascribed to that term in Section 103 of the Illinois Domestic Violence Act of 1986” 750 ILCS 5/600

“Abuse” means physical abuse, harassment, intimidation of a dependent, interference with personal liberty or willful deprivation but does not include reasonable direction of a minor child by a parent” 725 ILCS 5/112A-3(b)(1)(emphasis mine)

The key exception is whether the corporal punishment was “reasonable direction of a minor child.”

So, some corporal punishment is reasonable under Illinois law. Reasonable direction of a minor child must be distinguished from excessive corporal punishment.

“It is clear that a parent has the “right” to corporally discipline his or her child, a right derived from our constitutional right to privacy. But this right, like any other, must be exercised in a “reasonable” manner.” In Interest of JP, 692 NE 2d 338 – Ill: Appellate Court, 1st Dist., 4th Div. 1998

“The term “excessive corporal punishment” is not defined in the Act. Perhaps this is because cases involving the adjudication of abuse, neglect, and wardship are sui generis; that is, each case must be decided on its own distinct set of facts and circumstances and, given the varying circumstances in these types of cases, courts must have broad discretion to reach a just determination” In Interest of JP, 692 NE 2d 338 – Ill: Appellate Court, 1st Dist., 4th Div. 1998

While the statute gives us little direction as to what is acceptable corporal punishment, Illinois case law highlights what makes corporal punishment

“In considering whether an act of corporal punishment was reasonable, it is appropriate for the court to consider (1) the degree of physical injury inflicted upon the child, (2) the likelihood of future punishment that may be more injurious, (3)  the fact that any injury resulted from the discipline, (4) the psychological effects on the child, and (5) the circumstances surrounding the `discipline,’ including whether the parent was calmly attempting to discipline the child or whether the parent was lashing out in anger.” People v. Parrott, 89 NE 3d 987 – Ill: Appellate Court, 3rd Dist. 2017

If the corporal punishment is found to be unreasonable, the authorities might get involved and charge the parent with a crime.

Is Hitting Your Child A Crime In Illinois?

You’re not allowed to hit anyone you’re not related to. You’re not allowed to hit a child that isn’t your child. You’re not allowed to hit your own child on or after their 18th birthday. In fact, these are all crimes depending on how you hit the person.

Depending on how a child is hit by their parent, that may be a crime as well.

“[T]he State also has a legitimate interest in the welfare of juveniles, including the interest in protecting juveniles from “unreasonable” parental discipline… Parents have also been subject to criminal liability as the result of their use of a board or other object to corporally punish their children.” In re FW, 634 NE 2d 1123 – Ill: Appellate Court, 4th Dist. 1994

The issue of parents hitting children is simply not black and white. Hitting your child is not always allowed and it’s not always forbidden either.

“Corporal punishment as a method of discipline remains a controversial issue…Whether to employ corporal punishment as a means of discipline is a decision each parent must make for himself or herself. However, parents should understand a swat on a child’s buttocks with an open hand and the “paddling” of a child with belts, boards, cords, or ropes are intrinsically distinct exercises of corporal punishment…When allegations of neglect or abuse are levelled, parents using boards, belts, cords, or ropes as weapons to inflict corporal punishment may encounter an unwillingness on the part of DCFS and the courts to regard their conduct as reasonable.” In re FW, 634 NE 2d 1123 – Ill: Appellate Court, 4th Dist. 1994

Long story short, if a parent hits a child with anything but their hand…it is likely to be a crime.

“The use of boards or other objects to corporally punish a child has also been found to constitute neglect or abuse.” In re FW, 634 NE 2d 1123 – Ill: Appellate Court, 4th Dist. 1994

In fact, physical injury is not the exclusive measure of the unlawful abuse of a parent against their child.

“We believe it appropriate for the court to consider the fact any physical injury resulted from the discipline along with the psychological effects of the discipline on the child, and the circumstances surrounding the “discipline,” including whether the parent was calmly attempting to discipline the child or whether the parent was lashing out in anger.” In re FW, 634 NE 2d 1123 – Ill: Appellate Court, 4th Dist. 1994

If a crime of battery is charged against a parent regarding their child, the parent still has the defense that the discipline was reasonable.

“A parent’s right to corporally punish his or her child is derived from the right to privacy, which is viewed as implicit in the United States Constitution. This right encompasses the right to care for, control, and discipline one’s own children. The discipline allowed has been interpreted by courts to extend to reasonable corporal punishment… While parents have a general right to privacy in the manner in which they raise their children, this right must be balanced against the State’s legitimate interest in preventing and deterring the mistreatment of children. A parent who inflicts corporal punishment exceeding the boundaries of reasonableness may, depending on the circumstances, be subject to prosecution for cruelty to children.” People v. Green, 957 NE 2d 1233 – Ill: Appellate Court, 2nd Dist. 2011 (Citations Omitted)

The state’s attorney not only has to prove that the parent battered the child but that such contact was unreasonable. This means the parent is not obligated to defend their actions if the parent chooses not to.

“Even though the parental right to discipline is not a statutory affirmative defense, the common-law rule that parents may take “`reasonable steps to discipline their children when necessary'” is, like self-defense, a legal justification for an otherwise criminal act…In addition, to sustain a conviction of domestic battery where a claim of parental right has been asserted, the State must also prove beyond a reasonable doubt that the discipline used exceeded the standards of reasonableness.” People v. Green, 957 NE 2d 1233 – Ill: Appellate Court, 2nd Dist. 2011 (Citations Omitted)

The standard for reasonable physical discipline in the context of a criminal case is left to the judge to determine.

“Moreover, the degree of injury inflicted upon a child is not the exclusive or determinative factor in evaluating whether the discipline exceeded the bounds of reasonableness. Other factors to consider include the likelihood of future punishment that might be more injurious, the psychological effects of the discipline on the child, and whether the parent was calmly attempting to discipline the child or whether the parent was lashing out in anger.  Additionally, when corporal punishment is administered there is no assurance that a child will not suffer psychological effects or that the discipline will be inflicted moderately or responsibly. In the heat of anger, some parents are likely to exceed the bounds of reasonableness despite the lack of physical harm. However, both the reasonableness of, and the necessity for, the punishment is to be determined by the finder of fact, under the circumstances of each case.” People v. Green, 957 NE 2d 1233 – Ill: Appellate Court, 2nd Dist. 2011 (Citations Omitted)

This is part of the reason why parents are almost never prosecuted for hitting their children in Illinois. It’s impossible to tell what is reasonable corporal punishment in advance.

Furthermore, unless the corporal punishment happened in public, the only way the beating will come into evidence in an Illinois divorce or parentage court is if the child testifies to the beating. Otherwise, any report of the beating is hearsay.

“”Hearsay” is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.” Ill. R. Evid. 801

Any adult who says, “this child told me their parent hit them” is not testifying as to something they saw or experienced. They are merely reporting what someone else said. Hearsay is not allowed in Illinois courts…but there are some exceptions for children who are victims of crimes.

“In a prosecution for a physical or sexual act perpetrated upon or against a child under the age of 13… prosecutions for violations of 12-1 (assault), 12-2 (aggravated assault), 12-3 (battery), 12-3.2 (domestic battery), 12-3.3 (aggravated domestic battery), 12-3.05 or 12-4 (aggravated battery), 12-4.1 (heinous battery), 12-4.2 (aggravated battery with a firearm), 12-4.3 (aggravated battery of a child), 12-4.7 (drug induced infliction of great bodily harm), 12-5 (reckless conduct), 12-6 (intimidation)… or 12C-10 (child abandonment), 12-21.6 or 12C-5 (endangering the life or health of a child)… , the following evidence shall be admitted as an exception to the hearsay rule:

testimony by the victim of an out of court statement made by the victim that he or she complained of such act to another

Such testimony shall only be admitted if:

The court finds in a hearing conducted outside the presence of the jury that the time, content, and circumstances of the statement provide sufficient safeguards of reliability; and

(2) The child or person with an intellectual disability, a cognitive impairment, or developmental disability either:

(A) testifies at the proceeding; or

(B) is unavailable as a witness and there is corroborative evidence of the act which is the subject of the statement; and

In a case involving an offense perpetrated against a child under the age of 13, the out of court statement was made before the victim attained 13 years of age or within 3 months after the commission of the offense, whichever occurs later, but the statement may be admitted regardless of the age of the victim at the time of the proceeding.725 ILCS 5/115-10

Even with all these protections, forcing a child to relive the moment via any form of testimony is inherently unfair to the child.

Furthermore, if the child’s parent is the abuser, that parent will always have the right to petition the court for time with the child…that just testified against them. If there is even a scintilla that visitation might occur in the future, a child testifying against a parent will only harm any positive relationship that child and parent may eventually have.

Spanking is not child abuse in Illinois…until it is. Be sure that the discipline you apply to your child does get reviewed by an Illinois court. Alternatively, if you believe your child’s other parent exercises unreasonable corporal punishment, you can have the court consider their behavior. To learn more, contact my Chicago, Illinois family law firm to discuss the matter with an experienced Chicago divorce lawyer.

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Russell Knight

Russell D. Knight has been practicing family law as a Chicago divorce lawyer since 2006. Russell D. Knight amicably resolves tough cases while remaining a strong advocate for his client’s interests.

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