Abused kids get their day in civil court.

A year ago, a mother was caught on videotape repeatedly punching and slapping her four-year-old daughter, who sat strapped in a car seat in the back of a car in a department store parking lot.

The ensuing criminal case against the mother made national news, but not because what the mother did was unheard of--statistics show that each year, thousands of children suffer severe abuse or neglect at the hands of their parents. What made the case newsworthy was that the abuse was witnessed by untold numbers of people who saw the videotape on television and the Internet. The evidence was clear and convincing.

Parental child abuse is usually shrouded in silence and secrecy. Sometimes, members of the child's family or community may know of or suspect the abuse, but often, especially in cases of sexual molestation, the only witnesses are the victim and the abuser.

"That's one reason why tort actions against abusive parents are rare," said Jay Howell, a Jacksonville, Florida, plaintiff attorney who has represented several child abuse victims in tort actions against their parents. "Often, there is no corroborating witness, so proof can be a real practical problem."

Other obstacles include statutes of limitations, ill-defined and inconsistent standards for what constitutes abuse, and a decades-old judicial antipathy toward these lawsuits. Yet in recent years, dozens of abuse victims have cleared these hurdles with groundbreaking cases. And while some lawyers and children's rights experts say allegations of abuse are best left to the criminal courts, others say the civil justice system has a role to play in ensuring justice and compensation for abuse victims.

Marybel Reinoso, an attorney in West Palm Beach, Florida, is in the latter camp. She's representing 19-year-old Mellissa Frederick in a civil lawsuit against Mellissa's stepfather, mother, and paternal grandmother for injuries related to her stepfather's sexually abusing her for six years, beginning when she was seven.

Reinoso was familiar with Mellissa's story long before the lawsuit was filed; she was the state prosecutor in the stepfather's 1999 criminal trial for charges stemming from the abuse. He was tried and convicted of sexual battery on a child under the age of 12--a capital offense in Florida--and sentenced to life in prison.

Mellissa stayed in touch with her after the trial, and soon after Reinoso joined a private practice firm, the teenager called.

"She was looking into the possibility of filing suit, and she had called me to help her find a civil lawyer," Reinoso said.

The civil lawsuit's allegations against Mellissa's stepfather, Edward Frederick Jr., include battery and intentional infliction of emotional distress. Mellissa also filed suit against her mother, Velda Kellar, and grandmother, Miriam Frederick, for intentional infliction of emotional distress and for negligence. (Frederick v. Frederick Jr., No. CA03-0393 (Fla., Palm Beach County Cir. Ct. amended complaint filed July 1, 2003).)

The claims against Kellar are based on allegations that she knew about the abuse for years and did nothing to protect Mellissa, including reporting it to authorities. The grandmother, the complaint claims, pressured Mellissa to recant her allegations and lie to the police about what happened.

Reinoso said that when Mellissa was 11, she first told her mother that Edward was creeping into her bedroom at night and sexually molesting her. "Her mother confronted [Edward]. He denied it, and her mother said to Mellissa, 'What do you want me to do, divorce him?' After that, Mellissa and Ed went to counseling with a pastor. I think Mellissa went once or twice, and Ed went once or twice. And then the abuse started up again," Reinoso said.

About two years later, Edward saw Mellissa kissing a boy and "blew up. It wasn't a father upset, it was almost like jealousy," Reinoso said. Surprised by the vehemence of his reaction, Kellar asked him again about the abuse, and he admitted to it.

At that point, the abuse stopped, Reinoso said, although Edward continued to live in the home. About a year and a half later, Kellar and Edward told Mellissa that they were going to have her home-schooled. Fearful that being in the house for hours would give Edward an opportunity to molest her again, Mellissa told some friends about it, and they notified the authorities. In a statement to the police, Edward admitted to "inappropriately touching" Mellissa, according to the complaint.

Kellar and Edward, who are representing themselves, have filed "rebuttals" denying the allegations. The grandmother, who was added later in an amended complaint, had not yet filed a response, Reinoso said at press time.

Parental immunity

Until recently, suits like Mellissa's were unheard of; they were prohibited by the parental immunity doctrine, a common law principle that dates back to 1891, when a woman sued her mother for wrongfully confining her to an insane asylum when she was a child. The Mississippi Supreme Court dismissed the case, finding that civil lawsuits by children against their parents should be "forbid[den]" because of their potential to disrupt family and social harmony.

In later years, nearly every state adopted some form of the doctrine, often finding other reasons to support it, said Judith McMullen, a law professor at Marquette University in Milwaukee, Wisconsin, who teaches a seminar in child abuse law. Some courts raised the specter of collusion between family members; others voiced concern that allowing a child to sue a parent would deplete family resources, creating hardship for other members of the family.

"Then there was concern that parents should have close to unlimited authority over their children--over making discretionary decisions about disciplining their children, feeding and clothing them, educating them," McMullen said.

But starting in the 1960s, states began to carve out exceptions to the parental immunity doctrine, first for children who were injured in car accidents in which their parents were culpable.

"What you have in these lawsuits is parents who are going along with it," McMullen said. "In fact, the parents are helping to hire the lawyer to sue them for negligence because if the child has been injured in some kind of accident, they need the insurance money to help care for the child. The courts had been saying for years, 'Oh, we can't allow a suit by a child against a parent because it disrupts parental harmony, and it upsets parental authority, and you could have depletion of family funds in the pursuit of the lawsuit.' Well, none of that applied here."

It was the camel's nose under the tent. In the 1970s and 1980s, the doctrine faced increasing challenges, fueled in part by a growing societal awareness of the widespread scope and long-lasting effects of child abuse and neglect, said McMullen. Of the states that once adopted the parental immunity doctrine, all but one--Louisiana--have either partially or completely abrogated it.

If child abuse and neglect is so widespread, why don't we see more lawsuits against parents? The cases are anything but simple. As attorney Howell pointed out, even meeting the less-stringent proof requirements in a civil action may prove too difficult in what often comes down to "he said/she said" evidence.

"Often, all you have is the child as a witness, sometimes at a very young age."

And then there is the statute of limitations. "Most of the cases I've seen are [brought by] people who are now adults. In most states, you have a year or two after you reach the age of majority," McMullen said.

But some states have expanded the filing period for claims against an abuser, Howell said. "For example, in Florida, the child has until the age of 25, or up to four years after the child leaves the custody and control of the [abuser], or within four years after the child realizes that he or she has suffered an injury that was sustained as a result of child abuse."

Defining actionable abuse, especially nonphysical abuse, can be tricky, too. "You know, people cannot agree on whether spanking, or spanking with belts, or wooden spoons, or cords, is acceptable in this society," McMullen said.

"But I think pretty much everyone agrees that beating a child to the point of unconsciousness, breaking bones, burning children, raping them are egregious. Those are the cases that you're going to see where children really do have some kind of remedy against their parents," she said.

Nonphysical abuse

Psychological and emotional abuse is even harder to define. For example, "most therapists would say that verbally abusing a child is really bad," McMullen said. "It tends to affect development in a bad way. It makes [children] less able to function, makes them more depressed. They're more likely to have all sorts of complications, like eating disorders.

"But if you get into court and try to argue that your parents verbally abused you and caused harm for which you should have monetary damages, that's the kind of thing that I see courts backing away from and saying it's too difficult to prove and it takes away too much discretion from the parent."

"Each state wrestles with that," Howell said. "I've had cases with some strong allegations--[for example] that children were forced to eat from dog bowls--ruled by courts as not sufficient for a cause of action for child abuse."

"Some states have adopted something called the 'reasonable parent standard,'" McMullen said. "I'm hoping the trend will go more in that direction, because it's a standard that's used in other contexts in tort law quite effectively. Basically, it asks, 'Would a reasonable parent under similar circumstances have acted similarly?'"

Douglas Besharov--a resident scholar at the American Enterprise Institute for Public Policy Research, a think tank based in Washington, D.C., and author of Recognizing Child Abuse--said courts are right to be wary of these tort actions and should tread carefully in setting new standards of proof.

"Whatever you think of the old rule, there were some pretty sound reasons for it. This litigation can be quite mischievous," Besharov said. "The old rule said you want to be careful about parent/child relationships.

"[These cases are] murky; the proof isn't always that clear. And we're not talking about quasi-criminal behavior, we are talking about criminal behavior. Yet the standard of proof in civil cases is very different. It's a lot easier to persuade a jury [in a civil case] that something happened."

Lack of assets, both the plaintiff's and the defendant's, can doom even a clear-cut case. "I'll bet you half or more of the confirmed cases of abuse and neglect involve people living below the poverty line," said Besharov. "And usually there's an exclusion in insurance policies for intentional torts."

Howell noted that even if a suit is successful, collecting on a judgment is not easy, although the federal Child Abuse Accountability Act, passed by Congress in 1994, can help, he added. It allows successful plaintiffs to garnish federal retirees' pensions to satisfy judgments. Before the law was passed, these pensions were protected from garnishment, except for court-ordered child support and alimony payments.

Aside from the practical impediments, plaintiffs must clear huge emotional hurdles.

"Getting involved in accusations of abuse is a horrible experience," said John Myers, an expert in child abuse litigation and professor at the McGeorge School of Law at the University of the Pacific in Sacramento, California. A plaintiff who claims emotional injury, for example, "throws away patient privilege. If you've been in therapy for mental health reasons, all that information will come into the trial. During discovery, the defendant will be able to pry into every aspect of the plaintiff's sex life or any psychological problems."

"Then there's the whole dynamic of [the defendant being] your parent. The ambivalence in these cases is pretty profound. Just because you've been abused doesn't mean that you don't love the person who has abused you," Myers said.

Edge of the envelope

Despite the challenges in pursuing civil recoveries for child abuse and neglect, several victims have done so, sometimes breaking new legal ground in their states.

* Hurst v. Capitell 539 So. 2d 264 (Ala. 1989). A child was allowed to seek damages from her stepfather for alleged sexual abuse and from her mother for allegedly aiding and abetting the acts. The court also held that the plaintiff must prove the allegations with clear and convincing evidence.

* Doe v. Holt, 418 S.E.2d 511 (N.C. 1992). Unemancipated minors' claims that their father repeatedly raped and sexually molested them were sufficient to preclude application of the parental immunity doctrine.

* Henderson v. Wooley, 644 A.2d 1303 (Conn. 1994). The parental immunity doctrine did not bar a daughter's tort claims against her father for alleged sexual and physical abuse.

* Herzfeld v. Herzfeld, 781 So. 2d 1070 (Fla. 2001). A son sued his adoptive father for intentional torts stemming from sexual abuse. The court held that the parental immunity doctrine does not apply to intentional sexual abuse.

* Newman v. Cole, No. 1012110, 2003 WL 21674960 (Ala. July 18, 2003). The estate of a 16-year-old who was allegedly choked to death by his father could sue for wrongful death. The court carved out an exception to the parental immunity doctrine in cases "where it can be shown by clear and convincing evidence that a parent's willful and intentional infliction of injury resulted in the death of his or her child."

Attorney Reinoso acknowledges that Herzfeld, the controlling case in her state, did not address whether the parental immunity doctrine applies to negligence claims: Both the mother and grandmother are charged with negligence in Mellissa's lawsuit.

Still, Reinoso thinks the court will be receptive to the idea of allowing the claims, should they get that far.

"In Herzfeld, there was a concurring opinion where one of the justices said she was ready to do away with the parental immunity doctrine completely. ... We've got the facts that I think are fitting and appropriate for the court to say, 'You know, this is exactly the reason why we need to do away with [parental immunity],'" Reinoso said.