Abuse and Neglect

Abuse and neglect in a custody proceeding is something to take serious.  However, what constitutes abuse and/or neglect?   It may sound simple, but it is really not.  On a case a few days ago, myself, opposing counsel, and the chancellor were having a discussion regarding this very issue.  Technically, an child support or custody case could be an abuse or neglect issue because in contested proceeding the main issue is normally that one parent does not take as good of care of the child as another parent.  In Johnson v. Johnson, 872 So.2d 92 (Miss. Ct. App. 2004), the Court of Appeals held that the chancellor has some discretion to determine if abuse and/or neglect is a legitimate issue even when raised in the pleadings.  I started looking for a definition of abuse and/or neglect as defined in Mississippi Code Annotated 93-5-23 and it referenced me back to Section 43 of the Mississippi Code. 

Mississippi Code 43-21-105 defines an abused or neglected child as follows:

(l) "Neglected child" means a child:  (i) Whose parent, guardian or custodian or any person responsible for his care or support, neglects or refuses, when able so to do, to provide for him proper and necessary care or support, or education as required by law, or medical, surgical, or other care necessary for his well-being; provided, however, a parent who withholds medical treatment from any child who in good faith is under treatment by spiritual means alone through prayer in accordance with the tenets and practices of a recognized church or religious denomination by a duly accredited practitioner thereof shall not, for that reason alone, be considered to be neglectful under any provision of this chapter; or (ii) Who is otherwise without proper care, custody, supervision or support; or (iii) Who, for any reason, lacks the special care made necessary for him by reason of his mental condition, whether said mental condition be mentally retarded or mentally ill; or (iv) Who, for any reason, lacks the care necessary for his health, morals or well-being.  (m) "Abused child" means a child whose parent, guardian or custodian or any person responsible for his care or support, whether legally obligated to do so or not, has caused or allowed to be caused upon said child sexual abuse, sexual exploitation, emotional abuse, mental injury, nonaccidental physical injury or other maltreatment. Provided, however, that physical discipline, including spanking, performed on a child by a parent, guardian or custodian in a reasonable manner shall not be deemed abuse under this section.
(n) "Sexual abuse" means obscene or pornographic photographing, filming or depiction of children for commercial purposes, or the rape, molestation, incest, prostitution or other such forms of sexual exploitation of children under circumstances which indicate that the child's health or welfare is harmed or threatened.

The definition do not help a ton in my opinion as they are rather vague.  However, I do believe there needs to be some balancing act over what constitutes a true situation or abuse and/or neglect as opposed to just bad parenting.  This is especially true in light of Mississippi Code Annotated Section 93-5-23 which requires the other side to pay attorney's fees with the accusations are found to be "without foundation".  I previously talked about the problems of the definition of "without foundation" here.