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Spanking as a method of child discipline and its potential impact on custody determinations, P.2

In our previous post, we began looking at the issue of parental discipline in child custody proceedings, particularly whether corporal punishment, specifically spanking, can have a negative effect on a child custody determination. The central concern in any child custody case, again, is the best interests of the child, and that certainly includes the discipline to which he or she is exposed.

To be clear about the matter, spanking a child is legal in Texas. In and of itself, it isn’t considered to be child abuse, despite the fact that some hold it to be a harmful method of discipline. Under the Texas Family Code, abuse is defined as including physical injury which results in substantial harm to a child, with the exception of “reasonable discipline.” The implication is that reasonable discipline will not result in substantial harm to the child, though reasonable minds can differ on what constitutes reasonable discipline and substantial harm. 

The Texas Administrative Code says that substantial harm includes things like substantial or frequent skin bruising, welts, and soft tissue swelling. That helps clarify the matter a bit, but in practice it isn’t always easy to determine whether an instance of corporal punishment amounts to abuse under state law. Parents, at least in theory, should be okay if they avoid leaving marks when spanking their children, at least from the standpoint of avoiding allegations of child abuse from Child Protective Services.

That being said, the issue of spanking can still come up in child custody cases as a matter of discretion. As we’ve previously commented, judges have a significant amount of discretion in making best interests determinations, and a judge who holds the belief that spanking is an unnecessary and ineffective form of disciplining children may take that into account for purposes of child custody. Parents who do believe in spanking and who feel that it may be an issue in their own child custody case should therefore work with an experienced advocate to represent their interests in court and help ensure that a judge’s own opinions about disciplining children do not overshadow the parent’s right to make use of a legally permissible method of discipline.


Texas Administrative Code, Rule Section 700.455

Texas Penal Code, Section 9.61

Texas Family Code, Section 151.001

Texas Family Code, Section 261.001

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