Since many divorcing people are parents, this new case about physical discipline of children might be of interest. Spanking was more common with previous generations, the practice seems to be dropping off. Under Massachusetts law, a parent or guardian is not subject to criminal prosecution for the use of force against a minor child in his/her care provided the use of force...

  1. Is reasonable.
  2. Is related to the purpose of safeguarding or promoting the welfare of the minor (which can include punishment of misconduct).
  3. Does not cause or create the risk of substantial physical harm or severe mental distress.

Basically, you can physically discipline your children so long as you don't actually hurt them. This is called "parental privilege." Recently, our Supreme Judicial Court ruled on whether this privilege should extend to stepparents.

Do Stepparents Have "Parental Privilege?"

In Commonwealth v. Packer, a father and his wife (the child's stepmother) were charged with assault and battery on father's 14 year old daughter. The daughter alleged that her stepmother (who she called mom) hit her in the ear causing it to bleed after they argued. The daughter also alleged that her stepmother followed her to her room and pulled her hair. The father then became involved in the dispute and is alleged to have punched the daughter.

After the daughter disclosed the details of this incident to someone at school, the police were called and the father and stepmother were criminally charged. At trial, both father and stepmother asked that the judge instruct the jury as to the "parental privilege." The Judge refused to instruct the jury as to the parental privilege for the stepmother, given that she had no biological or legal relationship to the daughter. The stepmother appealed.

The Supreme Judicial Court refused to say that every stepparent is automatically entitled to the "parental privilege." They acknowledged that,

"Massachusetts case law firmly recognizes and affirms the reality that many children live in households headed by at least one person who, although performing a critical parenting role, is neither biologically nor legally related to them."

In Loco Parentis

However, the court was not prepared to say that every new spouse of a parent is automatically given the rights of a parent when it comes to discipline. The SJC did say that in this case, because the stepmother was a long-term parental figure in the household, the biological mother was not involved in the child's life and the daughter referred to the stepmother as mom, the stepmother could fit into the category of "in loco parentis." This is a legal term meaning "in place of a parent." Someone found to be in loco parentis is entitled to have the parental privilege instruction given to the jury. Then it is for the jury to decide if she indeed was acting in loco parentis.

In the end, the Supreme Judicial Court decided that stepmother in this case should get a new trial with the fact finder to decide if stepmother should get a jury instruction of "parental privilege" based on the evidence presented in the new trial as to the in loco parentis relationship. Whether a stepparent falls into the category of in loco parentis will be key to whether or not that stepparent is entitled to physically discipline a child in their home.

If you are interested in the discussion in the case about parenting roles and physical discipline, you can read the case here.

To Spank or Not to Spank?

Whether or not you spank your children is a highly personal decision. However, most people would agree that discipline is one thing and abuse is another. I don't believe any parent should be permitted to hit a child so hard that they bleed, much less have that behavior protected under some kind of legal privilege. Much less punch a child as the father is alleged to have done. To my chagrin, the Commonwealth of Massachusetts continues to protect the right of parents to use physical discipline. It's unfortunate that a legal technicality may help.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.