Category Archives: Child Abuse

DV & Cohabitating Parties

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In State v. Shelley, the WA Court of Appeals reversed the the defendant’s domestic violence convictions and held that a man, who is cohabitating with a woman and her child, does not necessarily have a “family or household” relationship to the child.

BACKGROUND FACTS

From late 2013 until April 2015, Defendant Aaron Shelley, his girlfriend Cheri Burgess, and her son from another relationship, A.S., lived with Shelley’s aunt and uncle.

On the evening of April 29, 2015, Shelley became angry and wanted Burgess to leave the house. After attempting to force Burgess out of the house, Shelley placed a knife against Burgess’s throat and stated he was going to kill her because she was not leaving. Shelley’s uncle, Mr. Sovey, intervened and convinced Shelley to give him the knife.

While Burgess and Sovey were talking in the kitchen, Shelley took A.S. out to the car. When Burgess confronted Shelley, Shelley grabbed A.S. by the throat. A.S. made a choking noise, “like he couldn’t breathe.” And when Burgess tried to grab A.S., Shelley said, “If you don’t leave or get away, I’m just gonna squeeze him, keep squeezing him. Get away from me. Leave, leave. Just effing leave. Leave my boy.” After Sovey came outside, Burgess walked away and called the police.

The State charged Shelley with, among other things, two counts of second degree assault as to Burgess, one count of second degree assault of a child as to A.S., and one count of felony harassment for threatening to kill A.S. The State alleged each crime was one of domestic violence.

The jury convicted Shelley of one count of assault as to Burgess. The jury found this was a crime of domestic violence because Shelley and Burgess were members of the same family or household. The jury also convicted Shelley of one count of assault as to A.S. and one count of felony harassment.

Shelley appealed on the issue of whether he was properly convicted of domestic violence acts against A.S.

COURT’S ANALYSIS AND CONCLUSIONS

The WA Court of Appeals reasoned that under RCW 10.99.020(3) and RCW 26.50.010(6), “family or household members” includes the following:

“Spouses, former spouses, persons who have a child in common regardless of whether they have been married or have lived together at any time, adult persons related by blood or marriage, adult persons who are presently residing together or who have resided together in the past, persons sixteen years of age or older who are presently residing together or who have resided together in the past and who have or have had a dating relationship, persons sixteen years of age or older with whom a person sixteen years of age or older has or has had a dating relationship, and persons who have a biological or legal parent-child relationship, including stepparents and stepchildren and grandparents and grandchildren.”

“The State had the burden of establishing Shelley and A.S. had a biological or
legal parent-child relationship,” said the Court. “It is undisputed that Shelley is not A.S.’s biological father because Shelley and Burgess did not meet until she was six months
pregnant.”

The Court also raised and dismissed the State’s arguments that Shelley’s presumption of parentage was proven under RCW 26.26.116 of the Uniform Parentage Act. “The State did not present the trial court with any evidence of such a judicial determination,” said the Court of Appeals. “On this record, the State’s presumptive parent and de facto parent
theories fail.”

The Court concluded that because A.S. and Shelley are not family or household members, the domestic violence special verdicts on count 3, second-degree assault of a child, and count 4, felony harassment, were invalid as a matter of law.

Please contact my office if you, a friend or family member are charged with DV crimes involving the children of unmarried boyfriends/girlfriends or domestic partners.  Like this case shows, the Prosecution may be unlawfully charging defendants with DV crimes when it lacks the authority to do so.

Is Spanking A Child Legal?

Image result for spanking a child
 Every so often, I have Clients who are parents accused of Criminal Mistreatment, Child Abuse/Neglect, Assault in the Fourth Degree  or other crimes involving the abuse of children.
As a parent, you expect decisions about your own child’s well-being to be up to you.  Can the law interfere with your ability to discipline your child?  Can the law forbid you from spanking your child?

In Washington, parents are entitled to raise and reasonably discipline their children, so long as that discipline does not interfere with the children’s health, welfare, or safety.  Parents may reasonably use corporal punishment (like spanking) to discipline.

But what does the law in Washington really mean by “reasonably discipline”?  Under Washington law, the physical discipline of a child is not against the law when it is “reasonable and moderate.”  But what does “reasonable and moderate” mean?  Couldn’t those broad guidelines mean different things to different people?

To provide further guidance, Washington law elaborates that physical discipline is reasonable and moderate when it is “inflicted by a parent, teacher, or guardian for purposes of restraining or correcting the child.”  Physical punishment should be in direct response to a child’s disobedience or acting-out, rather than a blanket response to general bad behavior.  Any person besides a parent, teacher, or guardian must be authorized in advance by the child’s parent or guardian to use reasonable, moderate force to correct or restrain the child when it is appropriate.

Washington’s law also provides a list of actions that are presumed to be unreasonable methods of disciplining a child, including:

  • throwing, kicking, burning, or cutting
  • striking a child with a closed fist
  • shaking a child under age three
  • choking or otherwise interfering with a child’s breathing
  • threatening a child with a deadly weapon
  • any other act that is likely to cause bodily harm greater than transient pain or minor temporary marks

So if we know what going way too far looks like, but we also know that physical punishment is okay when it’s reasonably tailored to correct a child’s behavior, where is the line between discipline and abuse, and how can parents avoid crossing it?

In Washington, child “abuse” is defined as “injury of a child by any person under circumstances which cause harm to the child’s health, welfare, or safety.”  When potential child abuse cases come before a court, the court will evaluate the child’s age, size, and health condition, as well as the location of the child’s injury and the surrounding circumstances, to help determine whether the acts at issue were reasonable discipline or abuse.

So ultimately, yes, parents, teachers and guardians are legally allowed to spank children for purposes of restraining or correcting the child. However, you must keep in mind (both for your sake as well as your child’s) that physical punishment should always be:

  • reasonable and moderate
  • inflicted by a parent, guardian, teacher, or someone with advance parental permission
  • intended to correct or restrain the child

If you find yourself facing child abuse allegations in response to perceptions about how you discipline your children, please contact attorney Alexander F. Ransom.  He is a compassionate, attentive, and experienced advocate who help parents in these difficult circumstances.