Our firm has recently been involved in several Albuquerque family law cases (four in particular) with strikingly similar facts, yet vastly different results following litigation. The facts are out of control teens, disciplining parents, and abuse allegations resulting from the discipline. In all four cases, a parent was accused of abusing his or her children after using what I would term mostly appropriate discipline. More importantly in each case, absolutely legal discipline was used. In each case, after the teen was disciplined, the angry teen told the other parent who reported the abuse to the courts or to Child Protective Services (CPS).
Case 1. In this particular case, Mother and Father share 50/50 timesharing with two boys. The 15 -year old son had climbed onto the roof. When the father repeatedly told the child to descend and child refused, father climbed onto the roof to retrieve the child. A tussle ensued and father tackled the child. Fortunately the roof was flat, however, son was bruised in the fall. Father also proceeded to spank his son with a belt following the incident. (While spanking with a belt is legal, it is discouraged. I do not support belt spanking.) The son was clearly bruised in the incident, either from the fall, the belt or both. CPS investigated and substantiated the abuse because the spanking did cause bruising. After a hearing and testimony by CPS, both children were removed from Father’s home and Father was placed on supervised visitation.
Today’s status. Both children again reside with Father. Father was not ordered to undergo counseling. Supervised visits continued for only three months before custody was reinstated.
Case 2. In this case, Mother and father have a fairly good relationship. Pre-teen daughter resides primarily with Father and spends only every other weekend with Mother. When Father discovered the child was posting provocative pictures of herself on Facebook and texting men more than twice her age, Father reacted, angrily slapping the daughter. A school worker noticed bruising the following day and called CPS and the case went to court. Like the first case, the hearing officer heard two hours of testimony and ruled that the discipline, while slightly excessive was not abusive and returned the child to Father’s care.
Today’s status. Child resides with Father but spends time with Mother and both parents continue their amicable relationship co-parenting their daughter.
Case 3. In these latter two cases, the parents share very acrimonious relationships and such seems to contribute to the disparate results from those above. In this case, Mother believed son was sending inappropriate texts and confiscated his phone. When son attempted to retrieve the phone, Mother slapped son. Son slapped back. Mother called the police to have son arrested and although the police supported Mother’s use of discipline, they temporarily placed son with Father rather than take him into custody. Father, however, interpreted the slap as abusive and sought an order of protection against mother which he obtained. In this case, the Hearing Officer referred the case to the Court Clinic. The clinician interviewed the child, who still angry with mother’s restrictions, told the clinician he wanted nothing to do with Mother. The clinician then recommended a suspension of Mother’s timesharing.
Today’s status. Mother has not seen the child more than four times since the slapping incident which occurred three months ago. Her timesharing is unlikely to be reinstated any time soon.
Case 4. This case in particular has the most unexpected and unreasonable results. Like case 2, the children resided primarily with Father and spent time with Mother every other weekend as, as previously stated, the parents shared an extremely acrimonious relationship. In fact, the parties were in the middle of a custody battle whereby each parent was trying to obtain more time with the children. Shortly before Christmas, the son told a teacher that he was fearful of father because Father was “abusing” him. The school reported the allegations to CPS and the case proceeded to court. Like the previous case, the same hearing officer, rather than simply hearing the evidence, referred the case the court clinic. Again after brief interviews with the children, recommended a suspension of father’s timesharing. That was four days before Christmas and Father has not seen or spoken to the children since that day. CPS substantiated emotional abuse because of Father’s systematic threats akin to “see me behind the woodpile.” The children’s testimony was not abuse, but occasional paddle spankings.
Today’s status. The judge has ordered the parties to undergo an expensive custody evaluation and refuses to allow even supervised visitation until such is concluded despite father’s pleas that he did nothing untoward. The judge also referred Father for a 52-week batterer’s intervention program. There were no marks on the children and only one child disclosed abuse, the other three did not. These latter two cases where the court clinic suspended timesharing based on the children’s wishes were both heard by Hearing Officer Rosemary Cosgrove-Aguilar.
After pondering the facts of these cases over the past several months, I have come to the following conclusions. Despite spanking being legal in this state, and despite the progressively out of control behavior of the teens in these cases, the court clinic and Rosemary Cosgrove Aguilar will suspend visitation in cases where the children wish the visitation suspended. After suspension of visits, it is very difficult to reinstate. I have never seen children given so much control in previous litigation and am concerned with the turn the courts are taking here.
I am not a huge proponent of corporal punishment or physical discipline. It simply cannot be instituted while parties are in a custody battle for the obvious reasons and it cannot be used in anger. But is legal and allowable in all cases. In all but the last case above, discipline was implemented by an angry parent.
Although I am concerned with the court’s decisions in cases involving the use of legal and reasonable corporal punishment, I am even more concerned with the court’s placing the children in control of these custody disputes. Allowing children to dictate with whom they wish to live after being appropriately disciplined in one home is an egregious violation of a parties’ rights and a dangerous precedent. I certainly intend to keep such cases from Hearing Officer Cosgrove-Aguilar and the Court Clinic.