Family Law Keyed to Weisbergback
Brief Fact Summary. Father insulted his son regarding his sexual identity, calling him a fag, faggot, and queer.
Synopsis of Rule of Law. Verbal attacks can rise to the level of abuse necessary to declare a child an abused child.
Facts. Shane was the natural child of respondents and resided with his mother and two sisters. He was subjected to an unrelenting torrent of verbal abuse by his father directed at his sexual identity, regularly being called a fag, faggot and queer. He pleaded with his mother to intervene on his behalf but her efforts were ended, which resulted in the repetition of the taunts with the added assertion that they were true. The accusations were not limited to the home, and on one particular occasion occurred while they were shopping in a store.
Issue. Did Shane’s father’s verbal abuse arise to level to declare Shane an abused child under the Family Court Act?
Held. The father’s verbal attacks constituted abuse under the act.
The Family Court Act defining abused child requires physical injury. The similarly worded Penal Law defines physical injury as impairment of physical condition or substantial pain. If substantial pain has been established is generally a question for the trier of fact.
There is no specific requirement of the use of force in the definition of an abused child. Thus, a finding of abuse may be based on protracted impairment of emotional health or substantial risk thereof. It is the actual or potential impact on the child, as opposed to the per se seriousness of the injury that forms the predicate for abuse. These conclusions are consistent with the fact that the Act is a civil proceeding designed to protect emotional well-being. This Court finds that physical injury need not be inflicted by physical force, mere words are sufficient.
In addition to the verbal indignities, Shane was frequently forced to remove his father’s shoes and massage his feet. He complied because he was constantly in fear of his father, who had a history of assaultive behavior in the home. Shane is now in therapy.
To fail to acknowledge this plight would be an affront to the clear legislative intent of the act. The respondent father seeks to justify his actions as a form of legitimate parental discipline to cure his son of unspecified girlie behavior. A parent’s right to raise his child remains fundamental, but it is equally fundamental that children have constitutional rights which must be respected by their parents.
This Court orders that Shane be declared an abused child by both respondents, be remanded to the Commissioner of Social Services, and that the Family Court Clinic be directed to perform an immediate psychiatric and psychological evaluation of him on an emergency basis.