Dad’s Use of Corporal Punishment Constituted Domestic Violence: Custody Properly Modified

A father’s use of corporal punishment as a disciplinary method constituted domestic violence and, as a result, the trial court properly modified custody to give the mother sole legal and physical custody of the children, the Michigan Court of Appeals has ruled.

The plaintiff-father and the defendant-mother in Brown v Brown (Docket No. 350576) had entered into a consent judgment of divorce. Pursuant to the divorce judgment, the parties had joint legal custody of their five children and the plaintiff had primary physical custody.

Several years later, the defendant filed a motion in the Monroe County Circuit Court to change custody, raising concerns about the health, safety and welfare of the children, among other things. In particular, the defendant pointed to the plaintiff’s history of domestic violence, including the use of corporal punishment as a disciplinary method.

The trial court conducted a hearing that included witnesses and in-camera interviews with all five children. The trial court subsequently awarded sole legal and physical custody of the children to the defendant.

The plaintiff appealed, arguing that he “always acted in good faith and on the basis of his religious beliefs” regarding the use of corporal punishment as a disciplinary method.

The Court of Appeals affirmed in a published opinion written by Judge Amy Ronayne Krause and joined by Judge Jonathan Tukel.

The state’s interest in protecting children from harm outweighs any religious beliefs regarding the propriety of 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 Kirsten Frank Kelly concurred in the result only.

Domestic Violence

“However sacrosanct parental rights may be, they do not extend to abusing one’s children,” the Court of Appeals wrote. “It has long been established that a parent may not administer excessive physical discipline, or physical discipline that actually harms a child, no matter what the parent might subjectively believe.”

Citing the Child Custody Act, MCL 722.21 et seq., the Court of Appeals explained that domestic violence is a factor that must be “explicitly considered” in custody disputes. However, the appellate panel also noted that the Child Custody Act does not provide its own definition of domestic violence.

Therefore, the Court of Appeals looked to other definitional sources, 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 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.”

Accordingly, the Court of Appeals said the trial court’s determination that the plaintiff’s use of corporal punishment constituted domestic violence was not against the great weight of the evidence. “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,” the appellate panel wrote. “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.”

Moreover, 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 said. “’[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.”

Animal Abuse

Next, the Court of Appeals examined 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.

The Court of Appeals noted there was evidence that the plaintiff threw a family dog against the wall, kneed another dog in the chest and shot an airsoft pistol at a cat, and that the plaintiff acknowledged the latter two allegations were true.

“We hold that the trial court did not err,” the Court of Appeals said.

In making this ruling, the Court of Appeals emphasized that harmful or abusive conduct toward animals is not, in and of 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.”

Although 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,” the Court of Appeals explained.

“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,” the Court of Appeals said.

Therefore, 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 explained. “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” his 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.”