Charged with child abuse or neglect in Michigan? The degree turns on what the prosecutor can prove about your state of mind
I am Mitchell Bisson, a Grand Rapids criminal defense lawyer. I have litigated for over 15 years. This page covers criminal child abuse charges under MCL 750.136b, the investigation by police and Children’s Protective Services that usually comes with them, and the defenses I look at first. I defend these cases and I explain the charge, the evidence and the risks in plain terms. I do not promise outcomes.
The short answer. Michigan’s child abuse statute has four degrees. First degree requires that the person knowingly or intentionally caused serious physical or mental harm to a child, and it is punishable by life or any term of years. The lower degrees reach reckless acts and certain omissions, and a first offense of fourth degree is a misdemeanor. MCL 750.136b(2), (3), (5), (7), (8). Police and Children’s Protective Services often investigate the same event at the same time, and what you tell either one can be used in the criminal case. Nothing here predicts how a case will end.
Most of these cases start with a report. A physician, nurse, teacher, social worker or other person the Child Protection Law lists who has reasonable cause to suspect child abuse or neglect must make an immediate report to centralized intake. MCL 722.623(1)(a). Within 24 hours the department must refer the report to the prosecuting attorney and local law enforcement if it meets the statutory referral criteria, such as a suspected child death, sexual abuse or exploitation, or serious physical harm, or must start its own investigation. MCL 722.628(1). In cases of a child’s death, suspected sexual abuse or exploitation, or serious physical harm, the department must seek the help of law enforcement and cooperate with it within 24 hours of learning of them. MCL 722.628(3). Police involvement does not stop the department from continuing its own investigation. MCL 722.628(5). A parent or caregiver can therefore be talking to a caseworker and a detective in the same week about the same event, under two different sets of rules.
The four degrees of child abuse in Michigan
The statute gives each degree its own conduct, mental state and penalty. The table sets out what I compare the charging document against.
| Degree | What the statute requires | Penalty | Authority |
|---|---|---|---|
| First | The person knowingly or intentionally causes serious physical harm or serious mental harm to a child | Felony, life or any term of years | MCL 750.136b(2) |
| Second | The person’s omission or reckless act causes serious physical or mental harm; or the person knowingly or intentionally commits an act likely to cause serious physical or mental harm, whether or not harm results; or knowingly or intentionally commits a cruel act, whether or not harm results; or a licensee violates the child care organization licensing provision the statute names | Felony, up to 10 years for a first offense and up to 20 years after a prior conviction | MCL 750.136b(3), (4) |
| Third | The person knowingly or intentionally causes physical harm; or knowingly or intentionally commits an act that poses an unreasonable risk of harm or injury and physical harm results | Felony, up to 2 years for a first offense and up to 5 years after a prior conviction | MCL 750.136b(5), (6) |
| Fourth | The person’s omission or reckless act causes physical harm; or the person knowingly or intentionally commits an act that poses an unreasonable risk of harm or injury, whether or not physical harm results | Misdemeanor, up to 1 year, for a first offense; felony, up to 2 years, after a prior conviction | MCL 750.136b(7), (8) |
| Time limit to charge | MCL 750.136b is not among the offenses given longer periods in subsections (1) to (9) of the statute, so the general six year period applies, and time the person did not usually and publicly live in Michigan is not counted | Six years from the offense | MCL 767.24(10), (11) |
Two definitions set the grade of the offense. Any injury to a child’s physical condition is “physical harm,” which is why a bruise can support a charge, while “serious physical harm” is an injury that seriously impairs health or physical well-being, such as a skull fracture, a burn or scald, an internal injury or poisoning. MCL 750.136b(1)(e), (f). “Serious mental harm” requires visibly demonstrable signs of a substantial disorder of thought or mood. MCL 750.136b(1)(g). The gap between the two kinds of physical harm often separates a misdemeanor from a felony with a ten year or life maximum.
What the prosecutor has to prove
The model jury instruction for first-degree child abuse divides the offense into three parts: the defendant’s relationship to the child, as parent, guardian or someone with care, custody or authority at the time; the knowing or intentional infliction of serious physical or mental harm; and the child’s age, under 18. M Crim JI 17.18.
The statute defines “person” broadly. It includes a child’s parent or guardian and anyone else who cares for, has custody of, or has authority over a child, however long. MCL 750.136b(1)(d). A “child” is a person under 18 who is not emancipated by operation of law. MCL 750.136b(1)(a). That breadth means a babysitter, a boyfriend or girlfriend, a relative or a coach can be charged, and it also means that when several adults had access to a child, identity of the person who caused the injury is a contested element.
First-degree cases are usually fought over intent. People v. Maynor, 470 Mich. 289, 295 (2004), reads the words “knowingly or intentionally” as attached to the harm itself. Proof that the defendant meant to do the act is not enough unless the prosecutor also shows the defendant meant to cause serious harm or knew it would follow. The Court of Appeals reached the same result in People v. Gould, 225 Mich. App. 79, 84-85 (1997), and added at 87 that intent and knowledge can be inferred from what a person did.
Lesser degrees rest on lesser mental states, which is often why a first-degree count is negotiated down. The statute leaves “reckless act” undefined and defines “omission” narrowly, as willful failure to provide food, clothing or shelter necessary for a child’s welfare or willful abandonment. MCL 750.136b(1)(c). I hold the charging document up against those definitions word by word.
Defenses and answers I look at
Accident and mental state. A true accident does not fit the first-degree statute, and it does not fit a degree that requires a knowing or intentional act. I look at what the evidence shows about how the injury happened, who was present, what was said at the time and what the person did afterward, including whether the person sought medical help.
Medical causation. Many serious cases rest on medical opinion. In People v. Ackley, 497 Mich. 381, 391-392, 397-398 (2015), a case charged as felony murder and child abuse after a child’s death, the Michigan Supreme Court described a prominent controversy in the medical community over diagnosing shaken baby syndrome, also called abusive head trauma, and held that trial counsel’s failure to investigate and consult a suitable medical consultant fell below an objective standard of reasonableness and prejudiced the defendant. I treat that as a reason to ask early whether a medical consultant is needed, to get the records and imaging, and to find out what the treating physicians actually said and what they based it on.
Reasonable discipline. Subsection (9) carves out a parent or guardian, or another person the law permits or the parent or guardian authorizes, who takes reasonable steps to discipline a child, reasonable force included. MCL 750.136b(9).
A reasonable response to domestic violence. Subsection (10) makes it an affirmative defense that the conduct involving the child was a reasonable response to an act of domestic violence, measured by what the defendant knew at the time. The defendant carries the burden, by a preponderance of the evidence. MCL 750.136b(10).
Who did it, and who was only there. An aider and abettor is punished as a principal. MCL 767.39. People v. Norris, 236 Mich. App. 411, 419-420 (1999), draws the limit: the prosecution must prove the defendant assisted by act or encouragement and intended the crime or knew the principal did, and presence alone, even with knowledge, is not enough. That limit matters when the second adult in the home is the one charged.
Statements. Const 1963, art 1, § 17 bars compelling a person in a criminal case to be a witness against himself. Warnings are required only for custodial interrogation, and People v. Steele, 292 Mich. App. 308, 316-317 (2011), asks whether, in the totality of the circumstances, the person could reasonably have believed he or she was free to leave. A conversation in a hospital hallway may come without warnings and still be used, so I review how each statement was taken and whether it was recorded.
The Children’s Protective Services side of the case
The civil child protection system and the criminal case use different definitions and different standards. The Child Protection Law defines child abuse as harm or threatened harm to a child’s health or welfare through nonaccidental physical or mental injury, sexual abuse, sexual exploitation or maltreatment by a parent, a legal guardian or another person responsible for the child’s health or welfare, among others. MCL 722.622(g). The department confirms a case when it determines by a preponderance of the evidence that abuse or neglect occurred. MCL 722.622(n). In a criminal case the prosecutor must prove every element beyond a reasonable doubt.
A caseworker who contacts a person named in a report must say who the caseworker is, whom the caseworker represents and what the allegations are. MCL 722.628(2). The department’s confidential record can be obtained by a police agency investigating a report. MCL 722.627(1)(b). If a report or investigation indicates a violation of the child abuse statute, the department must send a copy of the report and the results to a law enforcement agency in the county. MCL 722.623(6). So a conversation with a caseworker is not a private one. I speak with a client before the client gives a statement to either agency, and I deal with the department on a client’s behalf where that makes sense.
The family division can act while the criminal case is pending. If a petition alleging abuse is authorized, the court can order a parent, guardian, custodian, nonparent adult or other person living in the home to leave and not return, if after a hearing it finds probable cause that the person committed the abuse and finds on the record that the person’s presence presents a substantial risk of harm to the child’s life, physical health or mental well-being. MCL 712A.13a(4). If a child is removed from a parent’s custody, the court must allow regular and frequent parenting time, not less than once every seven days, unless it finds that exigent circumstances require less or that parenting time, even if supervised, may be harmful to the child. MCL 712A.13a(13).
In the criminal case the court can also restrict contact. As part of a release order it can place conditions on the defendant, including restricting or prohibiting contact with named persons, if reasonably necessary to protect the integrity of the proceedings or to protect the named persons, and if two orders conflict the most restrictive provision controls until the conflict is resolved. MCR 6.106(B)(5), (D)(2)(l), (m). I make sure a client understands exactly what every order allows before a parent contacts a child.
Neglect, home alone and omissions
Not every case involves an injury. The criminal statute sets no age at which a child may be left alone. Whether a charge fits depends on the facts and the degree. An omission that causes serious harm is second-degree child abuse, an omission or reckless act that causes physical harm is fourth-degree child abuse, and knowingly or intentionally committing an act that poses an unreasonable risk of harm or injury is fourth-degree child abuse whether or not anyone is hurt. MCL 750.136b(1)(c), (3)(a), (7). A first fourth-degree offense is a misdemeanor with a one year maximum. MCL 750.136b(8)(a).
In the civil system, “child neglect” includes negligent treatment, including failure to provide adequate food, clothing, shelter or medical care though financially able to do so, and placing a child at an unreasonable risk to health or welfare by failing to intervene to eliminate a risk the person is able to eliminate and knows or should know about. MCL 722.622(k). The definition of a person responsible for a child’s health or welfare reaches an adult 18 or older who lives in the same home for any length of time. MCL 722.622(cc). That is a civil standard. It does not turn a failure to protect into a crime by itself, and I keep the two apart when a client faces both.
Penalties and other consequences
If the prosecutor intends to seek an enhanced sentence because of a prior child abuse conviction, the prosecutor must list the prior conviction or convictions on the complaint and information. The court, not a jury, decides whether the prior conviction exists, at sentencing or at a separate hearing before it. MCL 750.136b(11), (12).
When a child dies, the charge can be murder. First-degree child abuse is one of the offenses listed in the first-degree murder statute for murder committed in the perpetration of, or attempt to perpetrate, that offense. MCL 750.316(1)(b). In that kind of case the state-of-mind and medical questions above are the center of the defense.
Ways a child abuse case may end without a trial
A lesser degree. Where an offense has different degrees, the jury or judge may find the accused not guilty of the degree charged and guilty of an inferior degree. MCL 768.32(1). Prosecutors can also agree to a plea to a lesser degree. A plea to an offense other than the one charged requires the prosecutor’s consent, and the court must be satisfied that the plea is understanding, voluntary and accurate. MCR 6.301(D); MCR 6.302(A), (C)(1), (D)(1).
Dismissal or reduction at the preliminary examination. If the court finds no probable cause that an offense was committed or that the defendant committed it, it must discharge the defendant, without prejudice to a new prosecution, or reduce the charge to an offense that is not a felony. MCR 6.110(F).
Dismissal by the prosecutor. After the information is filed, the prosecutor cannot discontinue the case without stating reasons on the record and obtaining the court’s leave. MCL 767.29. Whether a prosecutor will move to dismiss depends on the evidence, and my work on the medical records, statements and timeline is what gives that conversation substance.
How I handle a child abuse case
- Stop the statements. I ask you not to speak to police, caseworkers or the other parent about the incident until we talk, and I deal with those contacts for you where I can.
- Read the charge and the exposure. I identify the degree, the mental state the prosecutor has to prove, any prior-conviction enhancement and the sentencing range.
- Get the records. I request the police reports, recordings, medical records and imaging, photographs, school and daycare records, and the department’s records that can be obtained.
- Test the medical proof. Where the case depends on a diagnosis, I decide with you whether a medical consultant is needed, and I find out what each physician actually concluded and why.
- Build the timeline. I work out who had the child, when, and what each person did, because identity and state of mind are usually the fight.
- Handle the parallel case. I coordinate the criminal defense with the family division case so that a statement or a stipulation in one does not hurt you in the other.
- Explain every offer. If the prosecutor offers a plea, I explain what it means in months and years, what it does to the record and to parenting time, and what the risks of trial are, and then the decision is yours.
What I need from you
Bring the charging papers, the bond order and any no-contact order, and every document from Children’s Protective Services or the family division, including any petition, notice or safety plan. Write down your own account of the incident, who was in the home, who has cared for the child, and the child’s medical history including earlier injuries and visits to doctors. Give me the names of the child’s doctors, daycare and school, and any texts, photos or messages from around the time. Do not discuss the case with the police, a caseworker, the other parent or the child, do not contact anyone an order bars you from contacting, do not delete messages or photos, and do not post about it online.
Where your Kent County child abuse case will be heard
I represent clients charged in Grand Rapids, Kentwood, Grandville, Wyoming and across Kent County. A felony begins in district court with an arraignment and, if the case continues, a preliminary examination. MCL 600.8311(c), (e). Michigan law sets the Kent County district courts by municipality. The 61st District Court serves the city of Grand Rapids, the 59th serves the cities of Grandville and Walker, the 62A serves the city of Wyoming and the 62B serves the city of Kentwood. MCL 600.8128a; MCL 600.8130(1)-(3). The 63rd District Court serves the rest of Kent County, which includes the cities of Rockford, Lowell, Cedar Springs and East Grand Rapids and the surrounding townships. MCL 600.8130(4). If the magistrate binds the case over, the felony is arraigned in the circuit court, which for Kent County is the 17th Judicial Circuit. MCL 766.13; MCL 600.8311(f); MCL 600.518. A first offense of fourth-degree child abuse is a misdemeanor with a one year maximum, and the district court has jurisdiction of misdemeanors punishable by a fine or imprisonment not exceeding one year. MCL 600.8311(a). The felony degrees follow the felony path through the district court and then the circuit court.
Why people hire me for a Michigan child abuse matter
You work directly with me, the lawyer handling your case. I tell you where the prosecutor’s case is strong and where it is thin, what each degree of the charge means in months and years, and what a plea would do to your record and to your time with your child. I do not promise outcomes. I build the case the facts support and prepare for trial, because an offer is only worth evaluating against a real alternative, and then we decide together how to proceed.
My fee depends on the charges, how complicated the case is and how far it is likely to go. We talk about the fee at the consultation, before you decide whether to hire me.
Questions I hear from people charged with child abuse in Michigan
What conditions can a judge put on my bond, like no contact orders or alcohol testing?
A release on recognizance or a conditional release carries three basic conditions: appear as required, do not leave the state without court permission, and do not commit a crime. Beyond that, MCR 6.106(D) lets the judge add conditions reasonably necessary to assure appearance and public safety, including reporting, no alcohol or illicit drug use, testing or treatment, curfews, travel or residence limits, surrendering a license or passport, no firearms, and no contact with named people.
How do I invoke my right to remain silent or to a lawyer with Michigan police?
Say it clearly and unambiguously: that you are invoking your right to remain silent and want a lawyer. Under Berghuis v Thompkins, an accused who wants to invoke the right to remain silent must do so unambiguously, so staying quiet alone does not invoke the right, officers may keep asking questions, and a later answer can be treated as a waiver. Under Miranda, once you say you want a lawyer, questioning must stop until a lawyer is present.
What is a preliminary examination in Michigan, and can my lawyer question witnesses?
A preliminary examination is a district court hearing at which the prosecutor must show probable cause that a felony was committed and that you committed it. Under MCR 6.110(C), the prosecutor and defense may subpoena and call witnesses, offer proofs, and examine and cross-examine witnesses, and the court must follow the Michigan Rules of Evidence, with limited statutory exceptions for some reports and records (MCL 766.11b).
What does it mean to be bound over to circuit court in Michigan?
Bindover means the district court judge found probable cause to believe a felony was committed and that you committed it, so the case moves to circuit court. Under MCL 766.13, the magistrate binds you over to appear within 14 days for arraignment in circuit court, or may conduct the circuit arraignment as court rule provides.
Can the alleged victim drop an assault charge in Michigan?
No. The prosecutor decides whether to pursue a criminal case, not the complainant. A complainant can tell the prosecutor they do not want to go forward, and that can affect how the case is handled, but the decision is the prosecutor’s. Do not contact the complainant to ask them to drop it. That can violate a no contact order and lead to a new charge.
Can I get a copy of the police report or the search warrant affidavit in my case?
Once you request it in a pending case, yes, with limits. MCR 6.201(C) requires the prosecutor to provide any police report and interrogation records, except parts concerning a continuing investigation, plus any affidavit, warrant, and return pertaining to a search or seizure in the case. A search warrant affidavit in a court file is nonpublic until the 56th day after the warrant issues, unless a suppression order extends that.
What are the degrees of child abuse in Michigan and the penalties?
First degree (knowingly or intentionally causing serious physical or mental harm) carries life or any term of years. Second degree (reckless act or omission causing serious harm, a knowing act likely to cause it, or a cruel act) carries up to 10 years, or 20 with a prior. Third degree (knowingly or intentionally causing physical harm) carries up to 2 years, or 5 with a prior. Fourth degree is a misdemeanor with up to 1 year for a first offense, or a felony with up to 2 years after a prior conviction.
What pretrial motions can be filed in a Michigan felony case?
Common ones include a motion to dismiss or remand for violations of the preliminary examination rules (MCR 6.110(H)), a motion to suppress evidence, a motion to compel discovery or for sanctions (MCR 6.201(K)), a motion for a bill of particulars (MCR 6.112(E)), a motion to modify bond (MCR 6.106(H)), and a speedy trial motion under MCR 6.004.
Related Michigan pages
- Grand Rapids criminal defense lawyer
- Domestic violence
- Assault charges
- Criminal sexual conduct charges
- Juvenile defense
- Criminal appeals
I represent people charged with child abuse and neglect offenses in Kent County and West Michigan. Contact me 24/7 by phone or email. Your Rights, My Fight! Call for a free initial consultation.
Big-Firm Power. Street-Level Grit.
Law Offices of Mitchell S. Bisson, 2828 Kraft Ave SE, Suite 295, Grand Rapids, MI 49512, serving Kent County and West Michigan.
This page provides general information about Michigan law and is not legal advice. Reading it does not create an attorney-client relationship. Laws change and every case turns on its own facts. Consult a licensed attorney about your specific situation.