Thursday, August 18, 2011

The Legal Effects of Child Abuse

The issue of Child Abuse is a sensitive and serious issue that brings into play in several different parts of the court system.  Victims and their families can find help from a number of different sources including (but not limited to) the Michigan Department of Human Services and domesticviolence.org.  If you are or know a victim of child abuse you are encouraged to use those resources.  This article, however, will focus on explaining the legal effects of Child Abuse. 

What Qualifies as Child Abuse?

Child abuse is physical or serious mental harm done to a person less than 18 years of age.  Physical harm means any injury to a child’s physical condition.  Serious physical harm “seriously impairs the child’s health or physical well-being, including, but not limited to, brain damage, a skull or bone fracture, subdural hemorrhage or hematoma, dislocation, sprain, internal injury, poisoning, burn or scald, or severe cut.”  Serious mental harm is any injury to the child’s mental condition or welfare that is visibly observable and amounts to a “substantial disorder of thought or mood which significantly impairs judgment, behavior, capacity to recognize reality, or ability to cope with the ordinary demands of life.”  Examples of this might include phobias, developmental delays or regression, depression, or serious anxiety. MCL 750.136b.

Criminal Consequences of Child Abuse

In the criminal system in the State of Michigan there are four (4) degrees of Child Abuse.  The different degrees count down in severity.  Depending on the facts in a given case, a person can be charged with multiple counts of one of the degrees, or may be charged with different degrees of Child Abuse.

Child Abuse 1^st Degree can be charged when a person “knowingly or intentionally causes serious physical or serious mental harm to a child.”  If convicted of the felony Child Abuse 1^st Degree, a person could serve up to 15 years in prison.

Child Abuse 2^nd Degree can be charged when a person:

1. Fails to act or acts recklessly in a way that causes serious physical harm or mental harm to a child;
2. Knowingly or intentionally acts in a way that is likely to cause serious physical or serious mental harm, even if that harm does not actually occur; or
3. Knowingly or intentionally acts in a cruel, brutal, inhuman, sadistic or torturous way toward a child, even if harm does not occur.

Child Abuse 3^rd Degree can be charged when a person:

1. “Knowingly or intentionally causes physical harm to a child;” or
2. Knowingly or intentionally creates an unreasonable risk of harm to a child, which actually results in physical harm.

If convicted of the felony Child Abuse 3^rd Degree, a person could serve up to 2 years in prison.

Child Abuse 4^th Degree can be charged when a person:

1. Fails to act or acts recklessly in a way that causes physical harm to a child;
2. Knowingly or intentionally creates an unreasonable risk of harm to a child, regardless of whether harm actually occurs.

If convicted of the misdemeanor Child Abuse 4^th Degree, a person could serve up to 1 year in a local jail.

A person cannot be convicted of Child Abuse if using reasonable force to administer reasonable discipline to a child (such as spanking with an open hand).  A person may also defend against a charge of Child Abuse by showing that he or she was acting in reasonable response to an act of Domestic Violence. MCL 750.136b.

If you have been charged with Child Abuse, contact an attorney to discuss possible defenses as well as a possible reduction in the degree and therefore the severity of punishment.

Juvenile Court Consequences of Child Abuse

The effects of Child Abuse in the legal system do not end with conviction.  If a person has been charged or otherwise accused of child abuse, that will likely start an investigation by Child Protective Services.  If there is “probable cause” to believe the Child Abuse occurred (a low standard of proof), then Child Protective Services may remove the child and any siblings or other minor children in the home and place them with a foster parent.  This affects the rights and privileges of both the charged person and the other parent(s) of the children.  Once the children are removed and the initial proceedings are completed the case is turned over to the Department of Human Services.

The Department of Human Services may terminate the rights of a parent immediately if there is clear and convincing evidence (the highest standard of proof in the family court) of the following the parent abused the child or a sibling by:

1. Abandoning the young child;
2. Committing Criminal Sexual Conduct involving penetration, attempted penetration, or the intent to penetrate against the child or sibling;
3. Causing severe physical abuse such as battering or torturing the child or sibling;
4.  Causing life-threatening injury to the child or sibling;
5.  Committing or attempting Murder or Voluntary Manslaughter, including under theories of aiding and abetting, solicitation, or conspiracy.

If none of the above circumstances apply, the Department of Human Services must provide services toward reunification between the parent and child for a period of at least 6 months.  If material improvement is not found after that period, the Department of Human Services may terminate the rights of a parent if there is clear and convincing evidence (the highest standard of proof in the family court) of the following (with respect to Child Abuse):

1. The child or a sibling suffered physical injury or sexual abuse by that parent and there is a reasonable likelihood of further risk of injury or abuse in the foreseeable future.
2. The parent had an opportunity to prevent physical injury or sexual abuse but failed to do so and there is a reasonable likelihood of further risk of injury or abuse in the foreseeable future.
3. The child or a sibling suffered physical injury or sexual abuse by a nonparent and there is a reasonable likelihood of further risk of injury or abuse by that nonparent in the foreseeable future. MCL 712A.19b

A recently published case by the Michigan Court of Appeals, In re Ellis, decided June 14, 2011, allows the court to terminate the rights of both parents after serious physical harm has come to the child and if the parents were the sole caretakers of the child, even if the court is unable to determine which parent actually caused the injury.  This is because one parent caused the injury and the other failed to prevent the abuse.  The court conditioned its ruling on the fact that the evidence suggested the abuse had occurred over a period of time and would have been noticeable by either parent.

Family Court Consequences

In cases where the Family Court has jurisdiction over a minor child subsequent to a divorce or under the Child Custody Act or Paternity Act, the other parent can file a motion modify the custody and parenting time arrangement reevaluated in light of the charges of Child Abuse.  If such a motion is filed, the court will hold a hearing and may reserve (put a stop to) or suspend (put a temporary stop to) a person’s right to parenting time with the child.  The court may also require that any parenting time be supervised by either a professional counselor or a mutually agreeable friend or family member.  It may also require particular counseling, education, or other treatment for the parent or child before regular parenting time is resumed.  A Family Court cannot grant custody to a parent who has been convicted of Criminal Sexual against the minor child or a sibling unless the other parent and the child (of sufficient age) agree to the custody arrangement. MCL 722.25a.

The effects of Child Abuse reach far beyond the legal consequences and the courts take those effects very seriously.  However, knowing what is to come in the event of Child Abuse can help you to take the proper protective measures, and can help you to know when is the right time to call an attorney.

* Please note: Every case is different, and there may be some aspect of your particular case which may result in an outcome other than is described above.  This post is not intended as legal advice and may not apply to your particular case.  It is always best to contact our office for a consultation if you have been or believe you may have a legal issue with respect to Child Abuse.