The older you are, the more likely you have been physically disciplined when you were a child. And not just by your parents! In fact, corporal punishment in schools is still permissible in many states. But with today's heightened sensitivity to child abuse, parents may be reluctant to use corporal punishment to discipline their children.

When parents are separated and at odds with one another, each trying to point to the parenting weaknesses of the other and each competing for more time with their children, these parents are likely to be even more constrained in their use of corporal punishment. Children themselves are very much aware of the sensitivity to child abuse and they may even go so far as to report their parents' use of corporal punishment on them.

So where does this leave parents who find corporal punishment to be an effective method of disciplining their children? The first thing to know is that corporal punishment by parents is permitted in Pennsylvania. 23 Pa.C.S. Section 6304 (d) Exclusions From Child Abuse—Rights of Parents—provides: "Nothing in this chapter shall be construed to restrict the generally recognized existing rights of parents to use reasonable force on or against their children for the purposes of supervision, control and discipline of their children. Such reasonable force shall not constitute abuse."

What becomes complicated is when disputes occur over whether "reasonable force" was used in administering corporal punishment. If a Children and Youth Agency receives a report of potential child abuse and determines that  "reasonable force" was not used, it could make a finding of child abuse against the parent administering the corporal punishment.

In the case of J.S. v. Department of Human Services, 221 A.3d 333 (2019), a father made a decision to use corporal punishment as a means of disciplining his 4-year-old son by smacking him on his buttocks. The father was divorced from the mother and the two shared custody of the child. The father's decision to use corporal punishment was based upon his son's significant behavioral problems. The child was sent home from day care due to these problems. The father decided to use corporal punishment just as his parents had used it on him. He had never spanked the child before. To make sure he did not hit the child too hard, the father first smacked his own leg multiple times. He then hit the child four times on his buttocks. Afterward, the father hugged the child and they both cried. The father did not tell the mother that he had spanked the child as they did not communicate well and had a somewhat acrimonious relationship.

Five days later, when the mother had custody, she noticed bruising on the child's buttocks. That same day, the local Office of Children, Youth and Families (CYF) received a referral alleging the child had been abused by the father.

CYF conducted an interview of the child and a local detective of the police department  interviewed the father. Thereafter, the detective forwarded the case to an assistant district attorney who directed the detective to file a citation against the father for harassment. The mother later sought a protection from abuse order against father (which was ultimately resolved through custody litigation).

The CYF case worker noted that the child did not seem fearful of his father nor was there any impairment of functioning. Nonetheless, CYF issued an indicated report of physical abuse. The father later pleaded guilty to the summary offense of harassment.

The father appealed the indicated report of child abuse and requested an expungement of the child abuse finding. After a full hearing was held on the father's expungement petition, his  request was denied. The lower court held that because the father's actions caused the child substantial pain (one of the definitions of child abuse), his actions amounted to child abuse.

The Commonwealth Court reversed. It held that when corporal punishment is involved, the test is not whether substantial pain was caused. By definition, corporal punishment causes pain. Instead, the test is whether reasonable force was used in administering corporal punishment. The analysis should focus on the parent's conduct rather than the result. Citing to the U.S. Supreme Court case P.R. v. Department of Public Welfare, 569 Pa. 123, 801 A.2d 478 (2002), the court noted that there is a need to balance the competing objectives of protecting a child from abuse while maintaining a parent's right to use corporal punishment. To determine whether reasonable force was used, a court should look to the standard of criminal negligence, which requires proof that a substantial and unjustifiable risk of bodily injury was disregarded. The focus of the inquiry is not the nature of the injury, but the conduct of the parent or guardian, considered under the totality of the circumstances.

After analyzing the case and statutory law, the court found that the father used reasonable force in administering corporal punishment. Any pain caused by his use of reasonable force for the purpose of disciplining his child was not child abuse. The lower court erred in focusing on the nature of the injury rather than the father's conduct at the time of the corporal punishment and the attendant circumstances.

Angry and disgruntled custody litigants often misuse the Child Abuse Protection Act in an effort to diminish the parental rights of the other parent. Custody litigants are on heightened alert about the potential for false child abuse allegations and may forego corporal punishment to avoid being accused of abuse. While there have long been debates over the efficacy of corporal punishment, there have not been any conclusive findings on this issue.

While certainly we want to protect children from abuse, we do not want to hamstring parents from effectively disciplining their children. This case is a good illustration of how reactive our social services and courts can be to allegations of child abuse. But the decision of the Commonwealth Court serves as a good check on this reactivity, setting forth a clear standard by which corporal punishment can be distinguished from child abuse.

Julie A. Auerbach is a partner at Astor Weiss Kaplan & Mandel. Her practice is focused in the area of family law. She practices in the counties of Philadelphia, Delaware, Chester, Montgomery and Bucks, and has written and lectured extensively on the subject of family law.