Spanking and Corporal Punishment in Illinois: How Far is Too Far?

 Posted on August 11, 2023 in Divorce

Often as parents, we are faced with the difficult question of how to best discipline our children. This issue becomes even more complicated when parents are navigating a divorce or other court proceedings. Today, many people view physical discipline, specifically spanking, as a form of outdated punishment and accordingly parents do not allow caretakers to use physical discipline on their children. However, there are still some parents who view spanking and other physical discipline as permissible and appropriate forms of discipline for children. In order to avoid a negative impact on parental rights during a court case, or even an indicated finding by the Department of Children and Family Services (DCFS), it is essential that parents are advised correctly as it relates to disciplining children with corporal punishment.

The Illinois Marriage and Dissolution of Marriage Act outlines the factors the court considers when determining parenting time and decision-making responsibilities for parents.  These factors, commonly known as the “best interests” factors, include whether physical violence is present as well as whether there is any abuse against the child.  The Abused and Neglected Child Reporting Act defines “abused child” as “a child whose parent or immediate family member, or any person responsible for the child’s welfare, or any individual residing in the same home as the child, or a paramour of the child’s parent… inflicts excessive corporal punishment.” 325 ILCS 5/3. Unfortunately, the term “excessive” is not defined under the act which leaves room for question and doubt for parents who choose to use corporal punishment.

The law on corporal punishment is somewhat vague and requires that each scenario be decided based on its own distinct set of facts and circumstances. For example, in Illinois, while parents are not legally prohibited from spanking their children, depending on the circumstances, certain forms of corporal punishment can be considered child abuse.  Since the term “excessive” is subjective, it is ultimately up to the trier of fact, the judge, to determine whether or not a parent’s use of corporal punishment rises to the level of child abuse. In determining what factors may be considered excessive, courts have found that corporal punishment that uses items like a belt or wooden spoon, or leaves bruises and/or welts are more likely to be considered excessive than those with the hand only. However, in one case, a plaintiff was indicated by DCFS under the abuse allegation for cuts, bruises, welts, abrasions, and oral injuries where she used a wooden paddle to discipline the child resulting in bruises the size of a 50-cent piece on the left thigh, right forearm and another bruise on the child’s lower lip. Yet, the evidence established that the parent administered corporal punishment, not in a vengeful manner, but as a punishment for the child’s behavior, which she intended to be a learning moment for the child. Therefore, when taken up on appeal, the court found the harm suffered by the child was not actually considered abuse.  Even though the use of the wooden paddle resulted in two bruises to the child, because the parent used the paddle as a form of punishment, she did not use it excessively, the court did not deem it to be harmful.  Marchant v. Illinois Department of Children & Family Services, 2012 IL App (1st) 103747-U.  That said, this case may be the minority and any time an object is used for corporal punishment or an injury is inflicted on the child, there is cause for concern from the court’s perspective. 

Some courts have even looked at the location of the injury on the body of corporal punishment to determine the level of excessiveness. For example, if a child is spanked on the rear it is deemed to be less excessive or in certain instances not excessive in comparison to a child being slapped in the face. Another factor the courts consider is the age of the child. Spanking a baby is likely excessive force, whereas spanking an adolescent or older child may not necessarily be considered “excessive.”  

To summarize, if you are separating from your spouse or significant other or are otherwise involved in a parenting time dispute, you should be cautious when exercising corporal punishment.  If deemed excessive, it could be a factor that affects your parenting time with your children, even potentially warranting a restriction (such as supervised parenting time) or resulting in an indicated finding by DCFS. 

If you use corporal punishment to discipline your children or have children with a partner who uses corporal punishment to discipline your children, you should consult with an attorney to understand how that decision may or may not impact your case. McSwain Nagle Giese & Rapp, P.C. offers free thirty-minute consultations and is experienced in handling these matters.