Where does Florida law draw the line between discipline and child abuse?

Parents accused after an incident at home usually face two systems at once. The Department of Children and Families investigates under chapter 39 of the Florida Statutes, which is about the child's safety and the family, and the police and State Attorney may bring a criminal case under chapter 827. The two use related but different words, and both matter. How Mr. Mead defends these accusations is on our child abuse and neglect defense page. The broader family violence rules are on our domestic violence defense page.

How does a discipline case unfold, step by step?

1. A report. Someone calls the Florida Abuse Hotline, 1-800-962-2873, which takes reports 24 hours a day; DCF says Florida law requires anyone who suspects a child was abused by any person to report it.
2. Screening. The hotline decides whether the report needs an immediate onsite protective investigation (s. 39.301(1)).
3. Two tracks. Allegations against a caregiver are investigated by DCF; allegations of criminal conduct are forwarded immediately to the local police or sheriff (s. 39.301(2)(a)).
4. Possible arrest. A parent is a "family or household member," so a battery or abuse arrest of a parent follows the domestic violence hold until first appearance (ss. 741.28, 741.2901(3)).
5. The protective investigation. DCF must complete it within 60 days, unless a concurrent criminal investigation continues (s. 39.301(16)).
6. The criminal case. The State Attorney decides whether to file under s. 827.03, s. 784.03 or another statute.

What does Florida law say about corporal discipline?

The definition of "abuse" in chapter 39 ends with this sentence: "Corporal discipline of a child by a parent or legal custodian for disciplinary purposes does not in itself constitute abuse when it does not result in harm to the child" (s. 39.01). The key word is harm. The same section says harm includes "inappropriate or excessively harsh disciplinary action that is likely to result in physical injury, mental injury ... or emotional injury," and it tells investigators to judge any injury by five factors: the age of the child, any prior history of injuries, the location of the injury on the body, the multiplicity of the injury, and the type of trauma inflicted.

The list ends with "or other similar injuries," so it is not exhaustive. "Significant bruises or welts" appears only in the discipline paragraph, which is why the size, location and number of bruises often become the center of a case.

What makes it a crime?

Criminal child abuse is defined in s. 827.03(1)(b) as the intentional infliction of physical or mental injury on a child, an intentional act that could reasonably be expected to result in such injury, or actively encouraging someone else to do either. Aggravated child abuse includes aggravated battery on a child, willfully torturing, maliciously punishing or willfully and unlawfully caging a child, or abuse that causes great bodily harm, permanent disability or permanent disfigurement (s. 827.03(1)(a)). The statute defines "maliciously" with a parent in mind: wrongfully, intentionally and without legal justification, which may be shown where "a reasonable parent would not have engaged in the damaging acts toward the child for any valid reason and that the primary purpose of the acts was to cause the victim unjustifiable pain or injury" (s. 827.03(1)(c)).

A prosecutor may also charge a lower offense, such as simple battery under s. 784.03, a first-degree misdemeanor. Because a parent and child are family members, a battery is a crime of domestic violence, with the probation and program rules explained in what a domestic battery conviction carries in Florida. How felony points add up is in how a felony sentence is calculated. The maximum for every degree is in our chart of Florida criminal penalties.

Who can testify about the injuries?

Section 827.03(3) limits medical opinion in a criminal child abuse case. A physician may testify as an expert only if licensed under chapter 458 or 459 or certified as an expert witness; testimony about mental injury requires a licensed physician who completed a psychiatry residency, or a psychologist licensed under chapter 490. The same rules apply in dependency cases under chapter 39, but not in family court. These requirements can matter when the State relies on an examination done shortly after the report.

What changes the answer?

• Harm. Corporal discipline without harm is not abuse under s. 39.01; injury of the listed kinds can make it excessive.
• The five factors. Age, prior injuries, location, number of injuries and type of trauma (s. 39.01).
• Intent and purpose. Aggravated abuse by malicious punishment turns on whether the primary purpose was to cause unjustifiable pain (s. 827.03(1)(c)).
• Who acted. Chapter 39's exception covers "a parent or legal custodian"; a boyfriend, girlfriend or babysitter is not named.
• The record. A child abuse conviction, including a withheld adjudication, can never be sealed or expunged (s. 943.0584(2)(y)).

A worked example

For example, picture a hypothetical father in Delray Beach who spanks his 9-year-old son with an open hand after the boy runs into the street. The next day a teacher sees a red mark and calls the hotline. If the investigator finds no injury of the kinds listed in s. 39.01, the corporal discipline exception may apply. If instead the child had several raised welts on the back of the legs from a belt, the same facts would be measured against "significant bruises or welts" and the five factors, and the State could weigh a charge under s. 827.03. The father would be wise not to discuss the details with the investigator or police before speaking to a lawyer. This is an illustration, not a prediction.

Common mistakes parents make

• Explaining the discipline at length to an investigator or officer before getting advice.
• Assuming that because discipline is legal, any discipline is legal.
• Not photographing the child's condition, or not keeping the pediatrician's records.
• Ignoring the DCF case while focusing on the criminal case, or the reverse.
• Contacting the child or the other parent in ways a release order forbids.

What to do this week

1. Get the names and roles of everyone who contacted you, DCF or police.
2. Follow any release, no-contact or safety plan conditions exactly.
3. Collect medical, school and pediatric records that show the child's history.
4. Write down what happened, privately, while you remember it.
5. Speak with a criminal defense attorney before giving any statement.

Frequently asked questions

Is spanking legal in Florida?

Florida law says corporal discipline by a parent or legal custodian "does not in itself constitute abuse when it does not result in harm to the child" (s. 39.01). Discipline that causes injuries like those the statute lists can be treated as abuse.

Is child abuse a felony in Florida?

Yes. Child abuse without great bodily harm is a third-degree felony, and aggravated child abuse is a first-degree felony (s. 827.03(2)).

How long does a DCF investigation take?

DCF must complete its protective investigation within 60 days of the initial report, unless a concurrent criminal investigation continues beyond that (s. 39.301(16)).

Can a child abuse charge be sealed later?

A conviction for child abuse or aggravated child abuse, including a withheld adjudication after a plea, is ineligible for sealing or expunction (s. 943.0584). How sealing works for other cases is on our records expungement page.

Can the other parent or the child stop the criminal case?

No. Once police are involved, the State Attorney decides whether to file or drop charges; in family violence cases, specialized prosecutors decide over the objection of the alleged victim if necessary (s. 741.2901(2)). The details are in whether the alleged victim can drop domestic violence charges.

Can the other parent get a restraining order over discipline?

A parent can petition for an injunction for protection on behalf of a child living at home in some cases, and a domestic violence injunction can set a temporary parenting plan. The process is explained in what happens at an injunction for protection hearing.

What if the child is the one charged?

Cases where a young person is accused follow juvenile rules, covered on our juvenile offenses page. The first steps after a child is taken into custody are in what happens after a juvenile arrest.

How can Mr. Mead help?

Mr. Mead's practice is devoted entirely to criminal defense, with more than three decades in South Florida courts. In discipline cases, the injuries, the timing and the medical evidence decide which side of the line the facts fall on. The first days after an arrest are covered in what happens after a domestic violence arrest. The office is in Boca Raton, Spanish and Portuguese are spoken, and you can call 24 hours.

Every case is different, and no result can be promised. If you have been accused after disciplining a child, a confidential call to (561) 362-6677 is a sound first step.

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