Accused of Hitting Your Kids? Here’s How the State of California May Respond

In the state of California, if you are accused of child abuse (specifically, hitting your child abusively), your world could immediately be put into upheaval. California’s stance on child abuse is to provide immediate protection for the child first (by removal or restraining orders, if necessary), then investigating and pursuing the claims. Depending on the severity of the accusations or the intensity of the situation, within a matter of hours, you could find yourself arrested, separated from your child, and barred from returning to your own home. Your custody rights may be revoked (at least temporarily), and jail time might loom—all before you truly understand the charges you could be facing. Let’s talk about this sensitive issue, discuss what California law says about child abuse, how the state might respond to child abuse accusations, how the accusations might affect your custody rights, and what could happen if you are convicted.

What the Law in California Says About Child Abuse

Under Penal Code 273d PC, the State of California defines child abuse as an act in which someone “willfully inflicts upon a child any cruel or inhuman corporal punishment or an injury resulting in a traumatic condition.” A “child” is defined as a minor under the age of 18. The law is worded in a way that often causes confusion over whether or not it’s illegal to spank a child in California—and indeed, some believe corporal punishment is a gray area of the law. However, under this definition, the act of hitting a child physically for disciplinary reasons (even with an object) is not considered child abuse unless it is excessive, cruel, or results in a “traumatic condition.” A basic spanking for disobedience would not be considered abusive, but breaking the skin or leaving a mark in the process could be construed as child abuse.

What Are the Immediate Consequences if You Are Accused of Child Abuse?

Under California law, if a child custodian (be it a parent, guardian, or other caregiver) is accused of child abuse, and there is reason to believe the child is in immediate danger, the state may take proactive emergency actions to make sure the child is protected from any further abuse—even before any charges have been filed or proven in court. In some cases, this may result in a parent who has been falsely accused being at least temporarily separated from their child. There are several ways in which the state might intervene in these cases. Let’s look at three possible examples.

Mandatory Arrest in Domestic Violence Incidents

When the police respond to domestic violence calls in California, they have a duty to perform a mandatory arrest if they see  probable cause that domestic violence may have taken place. In child abuse cases, if the police are called to your home, and they see possible signs that your child has been physically injured, they are required to arrest the person most likely to have committed the injury—possibly, you. If you are the child’s sole guardian and are alone with the child, the child may be taken into protective custody while your case is processed, especially if no other relatives are available to care for the child.

Temporary Restraining Orders/Emergency Child Custody

If the other parent is accusing you of hitting your child abusively, they may obtain a a temporary restraining order that bars you from contacting the child. The order may be issued “ex parte,” meaning the judge can issue it without you being present and without hearing your side of the story. This restraining order may include language awarding temporary custody to the other parent until further hearings can be held. In certain cases, if the parent can demonstrate that you pose a serious threat to the child, the court may award an emergency child custody order that revokes your custody pending further hearings. If the restraining or protective order is extended after a hearing, the order may be in effect for 3-5 years.

Child Protective Services Intervention

If a third party files a complaint with Child Protective Services (CPS) alleging that you have been abusive to your child, CPS may visit your home. If they find evidence to corroborate that claim, or additional signs of abuse or neglect, they may remove the child from your home if they believe he/she is endangered. It’s also important to note that California has mandatory reporting laws for certain professions, such as teachers, social workers, clergy, etc. So if someone from one of these professions notices signs of abuse, they are required by law to report you to CPS.

What Happens If You Are Convicted of Child Abuse

If the accusations result in official charges and you are convicted, the penalties may vary based on the severity of the crime. Child abuse in California is a “wobbler offense,” meaning it may be tried either as a misdemeanor or a felony. In many cases, a misdemeanor conviction carries a sentence of up to one year in custody and/or a fine of up to $6,000. A felony conviction can result in incarceration for 2-6 years in state prison and a maximum fine of $10,000, or both imprisonment and a fine. If there is a prior felony conviction on your record within the last 10 years, it can add 4 years to your prison term. In addition, people who are convicted of child abuse quite often lose their custody or visitation rights to their children in subsequent custody hearings.

In many cases, especially with the help of a good defense attorney, the penalties for a child abuse conviction can be mitigated, either by reducing a felony to a misdemeanor or if the judge can be convinced to order summary probation as an alternative to prison. If this happens, you can expect some or all of the following:

• A minimum of three years probation
• Mandatory completion of a one-year child abuser treatment program
• A protective order that limits or prohibits contact with your child for a period of time (usually until treatment is complete and/or you’re no longer deemed a threat to the child

California takes allegations of child abuse very seriously—and penalizes offenses quite severely. If you’re accused of hitting your children or facing protective orders, your best option for minimizing the damage is by working with an experienced defense attorney who can help you fight false accusations and/or negotiate for more lenient terms that may eventually help restore your relationship with your children. Call our office today for a free case evaluation.