Domestic Violence in Front of Children: What Michigan Law Says

Michigan's domestic assault statutes, MCL 750.81 and MCL 750.81a, contain no enhancement and no separate offense for an assault that a child sees or hears, and the "presence of a child" felony in MCL 750.136d applies only to child abuse committed in the presence of another child.^[1] A child's presence can still matter in three other places: a possible child abuse charge, a report to Children's Protective Services (CPS), and any later custody or parenting time case.^[3][4][6]

If you or a child are in immediate danger, call 911. The National Domestic Violence Hotline is available 24/7 at 1-800-799-SAFE (7233), or text START to 88788.^[7] Michigan's statewide VOICES4 hotline takes calls and texts at 855-864-2374.^[8][9]

This page is written for parents on both sides of an incident. It sets out what the statutes and state policy say, and it avoids predictions about what a prosecutor, CPS worker or family judge will do in a particular case, because the sources do not support any.

What the criminal law does and does not say about a child's presence

A common belief is that an assault committed in front of a child is automatically a felony, or a separate charge. In Michigan it is not. Neither MCL 750.81 nor MCL 750.81a contains any enhancement for committing a domestic assault in front of a child.^[1]

The statute people usually have in mind is MCL 750.136d. It makes it a felony to violate the child abuse statute "in the presence of a child other than the child who is the victim of the violation."^[1] Its penalties track the degree of the underlying child abuse: life or any term of years for first degree; not more than 10 years, or 20 years on a second or subsequent occasion, for second degree; and not more than 2 years for third degree.^[10] By its terms it applies only to violations of the child abuse statute, not to an assault between adults.^[1]

The underlying charge between the adults is explained in Domestic assault explained.

When can a child abuse charge be filed?

Child abuse charges turn on what happened to the child, not on the child being in the house. The statute applies to a child's parent or guardian and to any other person who cares for, has custody of, or has authority over the child, and a child is a person under 18 who is not emancipated.^[11]

Degree	Conduct	Maximum for a first offense
First[2]	Knowingly or intentionally causing serious physical harm or serious mental harm to a child	Felony; life or any term of years
Second[12]	An omission or reckless act causing serious physical or mental harm; or knowingly or intentionally committing an act likely to cause serious harm, or an act that is cruel to a child, whether or not harm results	Felony; 10 years
Third[13]	Knowingly or intentionally causing physical harm; or knowingly or intentionally committing an act that poses an unreasonable risk of harm or injury and that results in physical harm	Felony; 2 years
Fourth[3]	An omission or reckless act that causes physical harm; or knowingly or intentionally committing an act that poses an unreasonable risk of harm or injury, whether or not physical harm results	Misdemeanor; 1 year

In the context of a domestic incident, three situations are worth separating.

The child is physically hurt

"Physical harm" means any injury to a child's physical condition.^[11] If a child is injured during an incident between adults, the question becomes whether the injury was caused knowingly or intentionally, or by a reckless act, which is one of the differences between the third and fourth degrees.^[13][3] The criminal jury instruction on assault has its own rule for a blow that lands on the wrong person: if the accused intended to assault one person but by mistake or accident assaulted another, the crime is the same as if the intended person had been assaulted.^[14]

The child is put at risk but not hurt

Fourth-degree child abuse does not require an injury. It includes knowingly or intentionally committing an act that under the circumstances poses an unreasonable risk of harm or injury to a child, regardless of whether physical harm results.^[3] The Court of Appeals has explained that the person has to knowingly or intentionally do the act; the person need not intend to create the risk. In People v Isrow, throwing a set of keys, knowing a child had been standing seconds before in the vicinity of where they were thrown, posed an unreasonable risk of harm or injury to a four-year-old.^[15]

The provision is written in terms of the risk the act creates, so it can apply even when the child is untouched.^[3]

The child sees or hears the incident

The child abuse statute, MCL 750.136b, nowhere mentions a child seeing or hearing violence between other people; each degree is defined by harm, or risk of harm, to the child.^[16] The provisions that address harm to a child's mind use the term "serious mental harm," which means an injury to a child's mental condition or welfare that results in visibly demonstrable manifestations of a substantial disorder of thought or mood which significantly impairs judgment, behavior, capacity to recognize reality, or ability to cope with the ordinary demands of life.^[17] First-degree child abuse requires that serious mental harm be caused knowingly or intentionally; second-degree child abuse reaches serious mental harm caused by an omission or a reckless act, and a knowing or intentional act likely to cause serious mental harm whether or not harm results.^[2][12]

Two protections written into the child abuse statute

• Reasonable discipline. The statute does not prohibit a parent or guardian from taking steps to reasonably discipline a child, including the use of reasonable force, and the prosecutor has to prove beyond a reasonable doubt that the force used was not reasonable as discipline.^[18] See Parental discipline defense.
• A response to domestic violence. It is an affirmative defense that the defendant's conduct involving the child was a reasonable response to an act of domestic violence in light of all the facts and circumstances known to the defendant at the time. The defendant has the burden of establishing it by a preponderance of the evidence.^[19]

Mandated reporting and CPS

Many families first learn about the child-protection system because someone who came into contact with the incident was legally obliged to report it. Listed professionals, including physicians, nurses, psychologists, counselors, social workers, school administrators, counselors and teachers, law enforcement officers, clergy, and regulated child care providers, who have reasonable cause to suspect child abuse or child neglect must make an immediate report to the state's centralized intake, and must file a written report within 72 hours of an oral report.^[4]

A report starts a process; it is not a conclusion. The steps set by statute are:

1. Within 24 hours after receiving a report, the department must either refer it to the prosecuting attorney and local law enforcement, where the statute calls for that, or commence an investigation.^[20]
2. When an investigator contacts a person about whom a report was made, the investigator must give his or her name, say whom he or she represents, and state the specific complaints or allegations.^[21]
3. During the investigation the department must determine if the child is abused or neglected, and must take necessary action to prevent further abuses, to safeguard and enhance the child's welfare, and to preserve family life where possible.^[21]
4. A school must cooperate with the investigation, including allowing access to the child without parental consent if the department determines that is necessary, and the department must notify the person responsible for the child about the contact at the time or as soon afterward as the person can be reached, subject to a limited power to delay.^[22]
5. A "confirmed case" means the department has determined, by a preponderance of evidence, that child abuse or child neglect occurred by a person responsible for the child's health, welfare, or care.^[23]

Is exposure to domestic violence, by itself, abuse or neglect?

State policy answers this directly. The Children's Protective Services manual says: "The presence of domestic violence in a home does not support confirmation of abuse and/or neglect without identified harm or harm is highly probable to the child."^[5] Investigators are to interview the alleged offender, the non-offending parent, and the child separately.^[5]

The Child Protection Law supplies the definitions. "Child abuse" means harm or threatened harm to a child's health or welfare through nonaccidental physical or mental injury, sexual abuse, sexual exploitation, or maltreatment, and "child neglect" includes placing a child at unreasonable risk by failing to intervene to eliminate a risk the person knows or should know of and is able to eliminate.^[5] The manual directs case managers to determine whether harm to the child has occurred or is highly probable without intervention, "outside of whether the child was present during the domestic violence incident."^[24]

What a confirmed case can and cannot lead to

The consequences depend on the seriousness of what is confirmed, and the statutes draw several lines:

• The central registry is reserved for a "central registry case," which means confirmed serious abuse or neglect, sexual abuse, sexual exploitation, or exposure to methamphetamine production.^[25]
• The department must file a court petition when it determines that a parent or other adult in the home abused the child or a sibling and the abuse included items on a statutory list, such as battering, torture or other serious physical harm, or life-threatening injury.^[26]
• A court may terminate parental rights only on finding, by clear and convincing evidence, at least one statutory ground, such as a reasonable likelihood that the child will be harmed if returned to the parent's home.^[27]
• An investigation record is confidential and is kept until the child is 18 or until 10 years after the investigation began, whichever is later.^[28]

The investigation process, and what parents can expect, are covered in CPS and domestic violence.

Family court: custody factor (k) and parenting time

A criminal case and a CPS investigation are separate from any custody dispute, but the same events come up there. In a custody dispute the court must consider twelve "best interests of the child" factors, and factor (k) is "domestic violence, regardless of whether the violence was directed against or witnessed by the child."^[6] So a family court may weigh an incident even if the child was asleep or out of the house.^[6]

Several points keep that factor in proportion:

• Domestic violence is one factor among twelve, and neither custody section contains a presumption against awarding custody to a parent who committed domestic violence.^[29]
• The Child Custody Act does not define the term; the Court of Appeals has held that factor (k) includes domestic violence as defined in MCL 400.1501.^[30] That definition covers causing or attempting to cause physical or mental harm to a family or household member, and placing a family or household member in fear of such harm.^[31]
• Under factor (j), a court may not consider negatively any reasonable action taken by a parent to protect a child or that parent from sexual assault or domestic violence by the child's other parent.^[32]
• A child has a right to parenting time with a parent unless it is shown on the record by clear and convincing evidence that it would endanger the child's physical, mental, or emotional health.^[33]
• A parenting time order may include reasonable terms such as a requirement that parenting time occur in the presence of a third person or agency.^[34]

These subjects have their own pages: Domestic violence and child custody and Domestic violence and parenting time.

Court orders that affect contact with children

After an arrest, a judge may release the defendant subject to conditions reasonably necessary to protect one or more named persons.^[35] Whether children are named in a no-contact condition differs from case to case, and it changes what a parent may lawfully do. Read the order itself, and see No-contact orders and your children.

A personal protection order (PPO) can also reach children. The Court of Appeals has held that the PPO statute's catch-all provision gives the court authority to prohibit a respondent's contact with the respondent's own children.^[36] A PPO takes precedence over an existing custody or parenting time order until the PPO expires or the custody court modifies its order, and either party may file a motion in the custody case, which must be heard within 21 days.^[37] See PPOs, children and parenting time.

What people get wrong

• "Doing it in front of the kids makes it a felony." There is no child-presence enhancement in the domestic assault statutes.^[1]
• "If nobody touched the child, there can be no child abuse charge." Fourth-degree child abuse covers an act that poses an unreasonable risk of harm or injury to a child whether or not physical harm results.^[3]
• "A CPS report means the children will be removed." A report triggers a referral or an investigation within 24 hours; confirmation requires a finding by a preponderance of evidence, and policy says exposure alone does not support one.^[20][23][5]
• "A domestic violence conviction ends custody." It is weighed under factor (k) with eleven other factors, and neither MCL 722.23 nor MCL 722.25 contains a presumption against custody for a parent who committed domestic violence.^[6][29]
• "The parent who was hurt will be blamed for not leaving." The statutes contain protections for a parent's reasonable response to domestic violence in both the child abuse statute and the custody factors.^[19][32]

Local help for families, including advocacy and counseling services, is listed in Where to get help in West Michigan.