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THE AUTHORITY OF A STEPPARENT TO DISCIPLINE A STEPCHILD
1999 National Legal Research Group, Inc.

I. INTRODUCTION

Parents and other adults who serve as custodians of minor children have the responsibility and authority to care for, educate, and discipline their children. The state confers wide discretion on parents on the manner in which they discipline their children, short of legal child abuse or neglect. Spankings, slaps on the wrist, and other physically coercive measures are regarded as normal parenting by many, and the state will not intervene when these measures are taken by biological parents. E.g., Ga. Code Ann. 49-5-180(5)(A) (1990) (authorizing physical forms of discipline so long as there is no physical injury to the child); Mo. Ann. Stat. 210.11(1) (West Supp. 1999) (establishing immunity for discipline, including spanking administered in a reasonable fashion); Wash Rev. Code Ann. 9A.16.100 (West 1988). In fact, Restatement (Second) of Torts 147-151 (1965) establishes parental authority as a defense to an assault-and- battery action by a child. See generally 6 Am. Jur. 2d Assault and Battery 47, 122 (Supp. 1999).

Unfortunately, the incidence of physical and sexual abuse by stepparents toward their stepchildren is higher than that of biological parents toward their children. See Jean Giles-Sims & David Finkelhor, Child Abuse in Stepfamilies, 33 Fam. Rel. 407 (1984). For this reason, stepparents must tread more carefully in the area of discipline of their stepchildren.

II. STEPPARENTS' RIGHT TO DISCIPLINE GENERALLY

Just as a biological parent who has custody and control over a child has the right to discipline a child in a reasonable manner, so too does a stepparent who stands in loco parentis to a child have the right to discipline a child in a reasonable manner. SeeMargaret M. Mahoney, Stepfamilies and the Law194-99 (1994).

This right is spelled out in many state statutes. For example, Ga. Code Ann. 16-3-20(3) (1992) provides:

The fact that a person's conduct is justified is a defense to prosecution for any crime based on that conduct. The defense of justification can be claimed . . . [w]hen the person's conduct is the reasonable discipline of a minor by his parent or a person in loco parentis.

(Emphasis added.) Many other statutes provide likewise. See Ariz. Rev. Stat. Ann. 13-403(1) (West 1989); Ark. Code Ann. 5-2-605(1) (Michie 1987); Tex. Penal Code Ann. 9.61(a)(1) (West 1974) (expressly including stepparents along with parents and those acting in loco parentis). See generally Wayne R. LaFave & Austin W. Scott Jr., Handbook on Criminal Law 452 (1986) (discussing statutes that extend the right to discipline children to nonparents); 2 Charles E. Torcia, Wharton's Criminal Law 186 (15th ed. 1994). But see La. Rev. Stat. Ann. 14:18(4) (West 1986) (justification defense extends only to parents, teachers, and tutors).

In other states, the right of a stepparent to discipline a child in the same manner as a parent arises from case law. In Natural Mother v. Hinds County Welfare Department, 579 So. 2d 1269 (Miss. 1991), a mother of two boys, ages eight and nine, remarried after divorcing the boys' natural father. The noncustodial father reported to the child protection agency that he had observed bruises on his sons' buttocks. In the child abuse proceeding initiated by the agency, the trial court determined that the bruises were the result of the stepfather spanking the boys with a leather belt after their misconduct at home and at school. The trial court found that this constituted child abuse and ordered the welfare department to supervise the children in their home for a period of six months.

The Mississippi Supreme Court reversed this decision, holding that the stepfather's conduct fell within the scope of proper discipline within the family. The supreme court held that the stepfather had the same privilege to discipline the boys as a biological parent would.

Similarly, in Nicholas v. State, 32 Ala. App. 574, 28 So. 2d 422 (1946), the stepfather was charged with assaulting his stepson. The stepfather was able to raise the defense of justification; as one standing in loco parentis to the child, he was entitled to render reasonable "chastisement to a child to the same extent as a parent." 28 So. 2d at 425; see Ala. Code 13A-3-24(1) (Supp. 1999) (codifying justification rule adopted in Nicholas).

III. WHEN IS A STEPPARENT'S "DISCIPLINE" ABUSE?

Even though a stepparent is able to render "reasonable chastisement" of a stepchild, a stepparent is not entitled to abuse a child. See generally H.D. Warren, Annotation, Criminal Liability for Excessive or Improper Punishment Inflicted on a Child by a Parent, Teacher, or One In Loco Parentis, 89 A.L.R.2d 396 (1963 & Later Case Service 1993 & Supp. 1999).

For example, in Nicholas v. State, 32 Ala. App. 574, 28 So. 2d 422 (1946), noted above, even though the stepfather was allowed to raise the defense of justification, the stepfather was convicted of assault and sentenced to prison, because he had beaten his pre-school-age stepson with a rubber belt for one hour. The court concluded that this did not constitute reasonable discipline.

In an even more egregious example, State v. Singleton, 41 Wash. App. 721, 705 P.2d 825 (1985), the stepfather barricaded his wife, his ten- year-old stepson and his fifteen-year-old stepdaughter in the living room of the family home, and during that time spanked each child with a heavy leather glove and a piece of kindling wood. The stepchildren were also beaten for refusing to choose who would be beaten next. Even though the stepfather claimed he believed he was acting within the realm of parental authority, the jury was instructed that his subjective beliefs were not the standard for justification. The force used must be objectively reasonable. See also Kama v. State, 507 So. 2d 154 (Fla. Dist. Ct. App. 1987) (stepfather punished stepson by hitting child in face with fist and across back with belt, and kicking him in stomach); Davis v. State, 234 Ga. 730, 218 S.E.2d 20 (1975) (stepfather was convicted of murder for holding child's head under water as punishment for violating terms of potty training); Bearden v. State, 163 Ga. App. 434, 294 S.E.2d 667 (1982) (stepfather disciplined his five-year-old stepdaughter by spanking and hitting her, with the result that bruises were visible over 75% of her face and 25% of her body; discipline was ruled unreasonable); Peters v. State, 470 N.E.2d 708 (Ind. 1984) (stepfather, who was trained in martial arts, disciplined stepson for eating lollipop by banging child's head against wall three times and kicking child in stomach; discipline was held unreasonable); Commonwealth v. Moore, 261 Pa. Super. 92, 395 A.2d 1328 (1978) (stepfather beat seven-year-old stepson so severely he required six months' hospitalization); Keser v. State, 706 P.2d 263 (Wyo. 1985) (stepfather beat 14-year-old boy with metal spatula and leather belt).

In determining whether the proposed discipline by a parent or other person in loco parentis of a child is justifiable and reasonable, a good guideline is the Model Penal Code, pt. I, 3.08(1)(a). Under the Code, the punishment must (1) be related to the child's welfare and not inflicted for selfish reasons, and (2) not be excessive:

[The force is justified when it] is used for the purpose of safeguarding or promoting the welfare of the minor, including the prevention or punishment of his misconduct; and . . . the force used is not designed to cause or known to create a substantial risk of causing death, serious bodily injury, disfigurement, extreme pain or mental distress or gross disfigurement.

As with biological children, the key to disciplining stepchildren is love and patience.

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