Discipline Disagreements: Can You Seek Full Custody if Your Ex Uses Corporal Punishment?

Corporal punishment used to be a commonplace form of disciplining children at home and school. Today, there are widely divergent views on the subject, and parents often take opposite positions. An “anti-spanking” parent fears emotional harm to the child, while the “pro-spanking” parent believes this is the best way to ensure proper moral development. The disagreement can prove to be more than a philosophical difference. Due to each parent’s emotional connection to their child, this conflict can put pressure on a marriage and become a bone of contention for custody disputes during and after divorce. Some parents are so opposed to corporal punishment, they want to deny joint custody or even overnight visits to a pro-spanking parent. That raises the question for this article: Is your ex’s use of corporal punishment grounds for you to take sole custody of your child?

How Society Views Corporal Punishment

Support for corporal punishment of children is definitely on the decline. Schools that used to routinely paddle misbehaving kids now only inflict corporal punishment on less than one-half of one percent of all students. And while parents still spank their children, experts say they do so less frequently than in the past.

Parents who still hold to the Biblical standard—“Spare the rod and spoil the child”—claim that spanking children reduces antisocial behavior and improves comportment. But Dr. Jeehye Kang, assistant professor of sociology and criminal justice at Old Dominion University in Norfolk, disagrees. Dr. Kang is the co-author of a study published in the October 2022 edition of the journal, "Child Abuse & Neglect."

For the study, Dr. Kang reviewed data from a study of kindergarteners in the academic year 2010 to 2011, whom the National Center for Education Statistics tracked for various social and educational outcomes. Dr. Kang claims the data show that a "lifetime experience of spanking by age five was associated with higher externalizing behaviors at ages six and seven, and with lower self-control and interpersonal skills at age 6." She warns parents that “spanking may hinder their children's development of self-control and interpersonal skills and increase externalizing behaviors, even if used infrequently."

Of course, this is only one study among many, but it illustrates the ideological split on the issue of corporal punishment. Now, what does the law say?

New York Law on Corporal Punishment of Children

Is corporal punishment legal in New York? The answer is yes. However, New York also has laws against child abuse, and there can be differences of opinion about when firm discipline crosses the line of domestic violence. One parent’s loving correction can be another parent’s sadistic brutality. Calls to Child Protective Services often make social workers uncomfortable with making a judgment call. That can result in an arrest for spanking a child.

The pertinent New York law on the subject is § 1012 New York Consolidated Laws, Family Court Act, which describes the abuse and neglect of children. Under this law, corporal punishment would have to produce “physical injury which … creates a substantial risk of death, or serious or protracted disfigurement, or protracted impairment of physical or emotional health or protracted loss or impairment of the function of any bodily organ.” Even the most fervent proponent of spanking would want a parent who did this to a child locked up.

However, the same law states that a child could be considered “neglected” when the child’s “physical, mental or emotional condition has been impaired or is in imminent danger of becoming impaired as a result of the failure of his parent or another person legally responsible for his care to exercise a minimum degree of care.” In other words, a parent who fails to exercise due care while disciplining a child and therefore goes too far with corporal punishment, can be charged with neglect.

We can easily imagine this scenario playing out when a parent has cause to discipline a child, but because the parent cannot control his own emotions, doesn’t know his own strength, or is under the influence of alcohol or drugs, inflicts physical injury and emotional trauma on the child.

New York law does not provide a bright line about how much force is too much. The key question is whether the parent was reasonable, which is open to the court's interpretation.

We can say that if a court has found one parent "neglectful" in administering excessive corporal punishment, the other parent could argue against allowing custody.

How to Protect Your Child from Their Other Parent’s Corporal Punishment

There are basically two strategies for protecting your children from corporal punishment. The first is to win sole custody and limit the other parent’s visitation rights. The second is to write a “no corporal punishment” clause into your parenting time agreement. If, in the future, your ex were to spank or otherwise physically discipline your children, you could ask the court to hold him or her in contempt. Repeated violations could be the basis for modifying your child custody order, so you would have sole physical custody.

All this means that parents who believe in prudent, necessary corporal punishment should use extra caution when their child’s other parent is opposed. You may be giving your ex ammunition to interfere with your visitation and alienate your children against you. If you object to your ex failing to make the children available for visitation, your ex could allege in court that you inflicted physical and emotional harm on them.

Corporal punishment is a potentially contentious issue in any child custody dispute. Remember to retain an experienced family law attorney who can capably advocate for your position and uphold your parental rights.


Dror Bikel

Dror Bikel co-founded Bikel Rosenthal & Schanfield, New York’s best known firm for high-conflict matrimonial disputes. A New York Superlawyer℠ and twice recognized (2020 and 2021) New York Divorce Trial Lawyer of the Year, Dror’s reputation as a fearsome advocate in difficult custody and divorce disputes has led him to deliver solid outcomes in some of New York’s most complex family law trials. Attorney Bikel is a frequent commentator on high profile divorces for national and international media outlets. His book The 1% Divorce - When Titans Clash was a 5-category Amazon bestseller.

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