Corporal Punishment Is Domestic Violence, Custody Order Properly Modified

The trial court correctly modified the parties’ custody order to give the mother sole legal and physical custody of the children, according to the Michigan Court of Appeals, because the father’s use of corporal punishment as a method of discipline constituted domestic violence.

The parties in Brown v Brown (Docket No. 350576) had entered into a consent judgment of divorce. They had joint legal custody of their five minor children, with the plaintiff-father having primary physical custody. The defendant-mother became concerned about the health, safety and welfare of the children and filed a motion to modify custody. Specifically, the defendant cited the plaintiff’s history of domestic violence and his use of corporal punishment as a way of disciplining the children. The Monroe County Circuit Court modified the custody order and awarded sole legal and physical custody to the defendant.

The plaintiff appealed, claiming that he “acted in good faith” and “on the basis of his religious beliefs” when using corporal punishment to discipline the children.

The Court of Appeals affirmed the trial court’s decision.

The state’s interest in protecting the children from harm outweighed the plaintiff’s religious beliefs regarding corporal punishment, the Court of Appeals said. “We conclude that the trial court did not err by characterizing plaintiff’s use of corporal punishment as domestic violence in this case.”

Judge Amy Ronayne Krause wrote the published opinion, joined by Judge Jonathan Tukel. Judge Kirsten Frank Kelly concurred in the result only.

Background

The parties had eight children during their marriage, five of whom were minors at the time of this proceeding. In their 2014 consent judgment of divorce, the plaintiff was awarded primary physical custody and the parties were awarded joint legal custody.

In 2016, the parties entered a stipulated order purporting to give the plaintiff sole legal and physical custody of the children and permitting the defendant to move to Ohio. After the defendant moved to Ohio, the plaintiff and the children began living with the plaintiff’s parents.

In 2018, the defendant filed a motion for change of custody, raising concerns about the children’s care while in the plaintiff’s custody, including unsafe and cramped housing conditions, failure to provide basic sanitation and clothing needs, failure to provide adequate supervision, neglect of the children’s emotional needs, denigration of the defendant and interference with the defendant’s visitation time and ability to communicate with the children. The plaintiff denied most of the assertions and contended that some were one-time occurrences.

The defendant filed another motion for change of custody in 2019. She again asserted there had been a change in circumstances since the 2016 stipulated order because the plaintiff had moved and was living in an unsafe residence, had enrolled the children in an unaccredited school without consulting the defendant and had threatened to block the defendant entirely from seeing the children. Again, the defendant cited the plaintiff’s history of perpetrating domestic violence and alleged the children had expressed a desire to be in her custody.

The trial court conducted a hearing, with detailed testimony from the parties, two of the adult children, witnesses familiar with the family and in-camera interviews with all five of the minor children. The trial court granted the defendant’s motion for change of custody and awarded her sole legal and physical custody of the children.

COA Analysis

On appeal, the plaintiff argued 1) the trial court erred by finding the defendant established the threshold requirement for reconsidering the parties’ previous custody order and 2) the trial court erred when weighing the best-interest factors in MCL 722.23.

The Court of Appeals began its analysis by noting that, no matter how sacrosanct parental rights may be, they do not extend to abusing children. Referencing the Child Custody Act (MCL 722.21 et seq.), the appellate court noted that domestic violence is a factor that must be “explicitly considered” in custody disputes. However, because the Child Custody Act does not offer its own definition of domestic violence, the appellate court relied on other definitional resources, including the Domestic Violence Prevention and Treatment Act (MCL 400.1501 et seq.) and Black’s Law Dictionary (11th ed).

“[T]he dictionary definitions of ‘domestic violence’ closely match the definition provided in MCL 400.1501,” the Court of Appeals wrote. “The definition of ‘domestic violence’ in MCL 400.1501 also is clearly consistent with the Child Custody Act’s overriding goal of promoting the best interests of the children involved in custody disputes. … We therefore hold that ‘domestic violence’ as used by MCL 722.23(k) includes ‘domestic violence’ as defined in MCL 400.1501.”

Here, the trial court’s finding that the plaintiff’s use of corporal punishment constituted domestic violence was not against the great weight of the evidence, the Court of Appeals said. “It was undisputed that plaintiff’s standard response to ‘willful disobedience’ involved discussing with the child the reason he or she was being punished, prayer, spanking the child on the buttocks approximately five times with a PVC pipe, and expressions of love at the end of the ritual. Plaintiff commonly used sufficient force to leave red marks on the children’s skin for the rest of the day, and his spankings once left a child with bruises. The parties’ eldest daughter indicated that she could sometimes hear ‘the swing of the paddle’ and ‘the cries of the kids’ from another room.”

Further, even if the plaintiff was acting based on his religious beliefs and without malicious intent, “the fact remains that his corporal punishment involved the infliction of injury on members of his household,” the Court of Appeals observed. “’[D]omestic violence’ unambiguously includes the infliction of mental harm, and it is obvious that a combination of cruelty and serious physical harm with expressions of love would further inflict mental harm upon any reasonable person.”

The Court of Appeals also reviewed the trial court’s reliance on the plaintiff’s abuse of family pets to support its finding of proper cause to modify the custody order. According to the appellate court, evidence showed that the plaintiff threw the family dog against the wall, kneed another dog in the chest and shot an airsoft pistol at a cat, and the plaintiff acknowledged the latter two allegations were true.

“We hold that the trial court did not err,” the Court of Appeals said, noting that harmful or abusive conduct toward animals is not, by itself, domestic violence. “A pet cannot be a spouse, MCL 400.1501(e)(i), in any legal jurisdiction of which we are aware. The word ‘individual’ used in MCL 400.1501(e)(ii) to (vii) is not defined by statute, so we again consult a dictionary. Common usage of the word ‘individual’ is typically limited to human beings, not any other kind of entity. … Therefore, a pet obviously cannot satisfy any of the possibilities under MCL 400.1501(e) under which it would be a ‘family or household member’ within the meaning of the Domestic Violence Prevention and Treatment Act or the Child Custody Act. Thus, a pet cannot be a victim of ‘domestic violence’ under either Act.”

However, “many people feel that their pets are part of their family, form deep and lasting emotional bonds with their pets, and feel tremendous personal responsibility for their pets,” the Court of Appeals observed. “In most cases, this would be all the more true for a child.” And while harmful or abusive conduct toward an animal is not necessarily domestic violence, “intentionally harming an animal with whom a child (a ‘person’ under the Act) has a significant emotional bond could constitute ‘engaging in activity toward a family or household member,’ i.e., toward the child, ‘that would cause a reasonable person’ (again, the child) ‘to feel terrorized, frightened, intimidated, threatened, harassed, or molested,’ … or, in other words, would constitute domestic abuse directed at the child. Directing such activity toward a minor child (a ‘family member’ under the Act, MCL 400.1501(e)(vii)), ‘for the purpose of compelling obedience by such a minor child’ often, if not invariably, is also an act of intimidation and would place such a minor child in reasonable fear of mental harm, MCL 400.1501(d)(i), and thus could constitute domestic abuse under the Act as well.”

Accordingly, harmful or abusive conduct toward a pet can constitute domestic violence under either MCL 400.1501(d)(i) or MCL 400.1501(d)(iv), “if done for the purpose of distressing or coercing a person emotionally bonded to that pet,” the Court of Appeals stated. “The resolution of that issue in a given case will turn on the trial court’s factual findings regarding the reason or reasons why someone engaged in particular actions with regard to an animal, and the nature of the bond between a child and the animal at issue.”

Such misconduct by the plaintiff in this case “is at least relevant to” the creation of an atmosphere that was harmful to the children’s well-being, the Court of Appeals concluded. “For either reason, the trial court here properly relied upon plaintiff’s abusive treatment of the family pets in support of its finding of proper cause.”

Regarding the statutory best-interest factors, the Court of Appeals said that although the trial court erred with respect to one factor, the ultimate decision to grant the defendant’s motion for change of custody was not an abuse of discretion.

“[T]he trial court’s error regarding Factor (e) was harmless and does not require reversal, because in all other respects the remaining best-interest factors overwhelmingly supported defendant’s motion for change of custody,” the Court of Appeals said. “Therefore, the trial court’s ultimate decision to award defendant sole legal and physical custody of the children was not an abuse of discretion. … The trial court engaged in a thoughtful and detailed analysis of the facts and properly granted defendant’s motion.”

You can learn more about divorce actions in Episode 9 of “In The Name of Law,” hosted by Liisa Speaker of Speaker Law Firm.