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A parent has a fundamental liberty interest to spank a child.   

On Behalf of | Apr 5, 2017 | Firm News

The family traditionally has occupied a unique and protected position in American jurisprudence; courts recognized that the family’s autonomy and freedom from state interference were crucial to its own integrity and to the welfare of the nation.  L. WARDLE, C. BLAKESLEY & J. PARKER, CONTEMPORARY FAMILY LAW §§ 1.08-1.09 (1988) (discussing courts’ recognition of family autonomy and the right of parents to raise their children without state interference).  The United States Supreme Court has held that “constitutional interpretation has consistently recognized that the parents’ claim to authority in their own household to direct the rearing of their children is basic in the structure of our society.”  Ginsberg v. New York, 390 U.S. 629, 639 (1968).  Emphasis added.  The United States Supreme Court has “recognized on numerous occasions that the relationship between parent and child is constitutionally protected.” Quilloin v. Walcott, 434 U.S. 246, 255 (1978).  This is “basic civil rights of man,” Skinner v. Oklahoma, 316 U.S. 535, 541 (1942), and “rights far more precious . . . than property rights.” May v. Anderson, 345 U.S. 528, 533 (1953).  United States Supreme Court decisions “establish that the Constitution protects the sanctity of the family precisely because the institution of the family is deeply rooted in this Nation’s history and tradition.”  Moore v. City of East Cleveland, Ohio, 431 U.S. 494, 503 (1977) (plurality opinion).  Indeed, when confronted with a case involving parent and child, a court must give great weight to the sanctity for the relationships that develop within the unitary family.  Michael H. v. Gerald D., 491 U.S. 110, 123-24 (1989) (plurality opinion) (rejecting biological father’s liberty interest for the historically recognized rights of the marital father).

It is plain that the fundamental liberty interests of a parent in the companionship, care, custody, and management of her child “come[s] to this Court with a momentum for respect lacking when appeal is made to liberties which derive merely from shifting economic arrangements.” Kovacs v. Cooper, 336 U.S. 77, 95 (1949) (Frankfurter, J., concurring).  The private interest in question here, that of a parent who has raised a child, undeniably warrants deference and, absent a powerful countervailing interest, protection.  Stanley v. Illinois, 405 U.S. 645, 651 (1972).  See, Kenosha Cnty. Dep’t of Human Servs. v. Jodie W., 2006 WI 93, 293 Wis. 2d 530, 716 N.W.2d 845 (holding that the mother, Jodie, had a fundamental liberty interest in parenting her son).

The Wisconsin Legislature has recognized that care, custody, and management of a child by a parent includes the right to “train and discipline” the child.  Wis. Stat. § 48.02(12).  “Discipline” is defined as “instruction, comprehending the communication of knowledge and training to observe and act in accordance with rules and orders.”  Black’s Law Dictionary 464 (6th ed. 1990)  Interestingly, people are unsure of the meaning of discipline as “discipline” as it is currently in the top 1% of lookups at  By definition, it is also synonymous with “correction,” (“To punish (as a child) with a view to reforming or improving.” Merriam Webster’s Collegiate Dictionary 260 (10th ed. 1996)); “chastisement,”  (“To inflict punishment on (as by whipping); … to censure severely.” Id. at 194, Emphasis added; “punishment,”  (“Suffering, pain, or loss that serves as retribution.” Id. at 947); and “penalty.”  (“A disadvantage, loss, or hardship due to some action.” Id. at 858).  The term “train” means to “to form by instruction, discipline, or drill”,  These terms denote repeated consequences imposed upon children for moral or legal transgressions.  Because of their emotional and intellectual incapacity, sometimes these consequences must be physical punishment. When discipline is physical, its purpose is not to inflict pain or cause injury, but to improve the behavior of the child.  “Corporal punishment” is defined as the “intentional infliction of physical pain which is used as a means of discipline. Corporal punishment” includes, but is not limited to, paddling, slapping or prolonged maintenance of physically painful positions, when used as a means of discipline.”  Wis. Stat. § 118.31 (2011)

The United States Supreme Court has recognized parents must have the freedom to choose how to discipline their own children.  “[F]reedom of personal choice in matters of family life is a fundamental liberty interest protected by the Fourteenth Amendment.” Santosky v. Kramer, 455 U.S. 745, 753, (1982).  This freedom of personal choice in family matters gives parents wide latitude in deciding how to discipline their children without “undue, adverse interference by the State.”  Bellotti v. Baird, 443 U.S. 622, 639 n.18 (1979); Prince v. Massachusetts, 321 U.S. 158, 166(1944) (finding there exists a “private realm of family life which the State cannot enter); Maynard v. Hill, 125 U.S. 190, 205 (1888) (the legislature, when not restrained by constitutional provisions and a regard for fundamental rights of citizens which are the basis for all government, will act upon everything).

Protected parental choice has been a reoccurring theme in a number of United States Supreme Court opinions in a variety of contexts.  See, e.g., Wisconsin v. Yoder, 406 U.S. 205, 213-14 (1972) (holding that parents’ “fundamental interest” in guiding their children’s religious upbringing is reflected in the “history and culture of Western civilization”); Skinner v. Oklahoma, 316 U.S. 535, 541 (1942) (holding that marriage and procreation are basic civil rights); Pierce v. Society of Sisters, 268 U.S. 510, 518 (1925) (stating that parents have a liberty interest in guiding their children’s intellectual and religious development); Meyer v. Nebraska, 262 U.S. 390, 399 (1923) (recognizing the authority of parents to control their children’s education).  The due process, see Moore v. City of East Cleveland431 U.S. 494, 501-02 (1977); Meyer, 262 U.S. at 399 and equal protection, see Caban v. Mohammed, 441 U.S. 380, 391 (1979); Stanley v. Illinois, 405 U.S. 645, 649 (1972) clauses of the Fourteenth Amendment, and the Ninth Amendment, see Griswold v. Connecticut, 381 U.S. 479, 487-99 (1965) (Goldberg, J., concurring) (asserting that the Court should consult the “‘traditions and [collective] conscience'” of the country as a source of establishing fundamental rights), each provide the family unit with protection from unwarranted state intrusion.  See also, State v. Zittlow, 2001 WI App 121; 244 Wis. 2d 287; 628 N.W.2d 437, citing In re Z.E.R., 225 Wis. 2d 628, 648, 593 N.W. 2d 840 (Ct. App. 1999); State v. Teynor, 141 Wis. 2d 187, 200, 414 N.W.2d 76 (Ct. App. 1987).

However, regardless in what Amendment(s) the parent child relationship is found by a Court, “[i]t is cardinal with us that the custody, care and nurture of the child reside first in the parentswhose primary function and freedom include preparation for obligations the state can neither supply nor hinder.”  Prince v. Massachusetts, 321 U.S. 158, 166 (1944).  Emphasis added.  See also Troxel v. Granville, 530 U.S. 57, 57 (2000) (parents who have developed a relationship with their children have a fundamental liberty interest in the “care, custody, and control of their children.”); Stanley v. Illinois, 405 U.S. 645, 651 (1972).  Part of having the care, custody, and control of a child involves imposing discipline since a parent cannot properly care or control a disobedient child without the ability to discipline the child.  Ingraham v. Wright, 430 U.S. 651, 661 (1977); Wendy Anton Fitzgerald, Maturity, Difference, and Mystery: Children’s Perspectives and the Law, 36 ARIZ. L. REV. 11, 37(1994) (‘[t]he law characterizes the parent’s right to punish a child as constitutional because the right resides in a parent’s broad constitutional right to care, custody, and control of [their] children”).

The right of a parent to discipline their child is the “oldest of the fundamental liberty interests recognized by [the United States Supreme] Court.”  Troxel v. Granville, 530 U.S. 57, 65 (2000); In re RGB, 123 Haw. 1, 229 P. 3d 1066, 1121 (2010); In re Doe, 57 P.3d 447, 457 (2002).  This right to discipline includes the right to use reasonable corporal punishment.  Doe v. Lang, 327 F.3d 492, 523 (7th Cir. 2003);  Lang v. Starke County Office of Family and Children, 861 N.E. 2d 366, 378 (Ind. App. 2007).  This is a fundamental constitutional right not dependent upon legislative recognition by statute.  See, e.g., City of Boerne v. Flores, 521 U.S. 507, 545 (1997).  In the substantive due process analysis, it is the State’s affirmative act of restraining the individual’s freedom to act which is the ‘deprivation of liberty’ triggering the protections of the Due Process Clause.  DeShaney v. Winnebago County Department of Social Services, 489 U.S. 198, 200 (1989).