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Parent and Child

From lawbrain.com

The legal relationship between a father or mother and his or her offspring.

The relationship between parent and child is of fundamental importance to U.S. society, because it preserves the safety and provides for the nurture of dependent individuals. For this reason, the parent-child relationship is given special legal consideration. Increasingly, local, state, and federal governments have become more involved in the relationship, especially when a child is abused or neglected. In addition, parental roles have shifted over time, and the law has moved with these changes. Legal rights that were once the sole province of the father are now shared with the mother, and, in general, the law seeks to treat parents equally.

The term child is used in the limited sense to indicate an individual below the age of majority. The more precise word for such an individual is minor, juvenile, or infant. The age of majority, which transforms a child legally into an adult, has traditionally been the age of 21 years. Many states, however, have reduced the age of majority to 18 years.


Parent-Child Relationship

In its most restricted use, the term parent refers only to a mother or father who is related to the child by blood. This definition holds whether the child is legitimate (the natural parents are married to each other) or illegitimate (the parents are not married to each other). As of 2003, as a result of statutes, adoptive parents have the same rights and responsibilities as natural parents. Other persons standing in the place of natural parents, such as stepparents, are not, however, given such extensive rights and responsibilities. Although in some instances foster parents and foster care agencies have the legal responsibility to nurture a minor, they are not entitled to the full status of parent.

A child is the issue or offspring of his parents. A posthumous child is one conceived prior to, and born after, the death of his father. Such a child has the same inheritance rights as a child born while his father is alive. A child is not entitled to full legal rights unless the child is born alive. The law does not ordinarily consider a fetus to be a child.

Various rights and responsibilities that reflect the social goals of nurturing and protecting dependent individuals are attached to the status of parent and child. The public policy in favor of promoting the protection and care of minors gives rise to the legal presumption that the parent-child relationship exists when it is acknowledged by a parent or when a parent resides with and raises the child. The relationship continues in the absence of unusual circumstances that mandate intervention by the state. Proper legal procedures must be followed when the state intervenes. Parents or children cannot alter or destroy the relationship either by themselves or merely by agreement.

Ordinarily a parent has the right to the custody and supervision of her child. In addition, a parent has the duty to care for and nurture her offspring. The child has the right to receive this care and nurture and the obligation to yield to reasonable parental guidance and supervision. The state has a duty to preserve family stability by ensuring proper care of children. The right of the family to privacy limits state regulation of the parent-child relationship to some extent, but modern laws dealing with child abuse and neglect give the state greater powers to intervene.

A parent's duties extend beyond providing daily necessities and financial support. A court may reasonably expect that a parent will provide for the child's education, medical care, and social and religious training, as well as exhibit love and affection for the child. A parent must also discipline the child when necessary.

Constitutional Considerations

Statutes governing the parent-child relation-ship are primarily state laws. These laws must conform to the requirements of the U.S. Constitution and the constitution of the particular state. The U.S. Supreme Court has held that many provisions of the Constitution protect the parent-child relationship, as well as the rights of both parent and child.

The issue of the right to conceive or the right to give birth to a child is governed by Supreme Court decisions involving the right to privacy. With griswold v. state of connecticut 381 U.S. 479, 85 S. Ct. 1678, 14 L. Ed. 2d 510 (1965), the Court held that married people have the right to be educated about birth control methods and to have access to contraceptive devices. The right was extended to unmarried people in Eisenstadt v. Baird, 405 U.S. 438, 92 S. Ct. 1029, 31 L. Ed. 2d 349 (1972). In Roe v. Wade 410 U.S. 113, 93 S. Ct. 705, 35 L. Ed. 2d 147 (1973), the Court ruled that a woman has a right to have an abortion. Because an established legal principle states that a fetus is not a child, the state cannot interfere arbitrarily with the woman's decision to have an abortion by favoring the welfare of the fetus over her welfare.

Authority of Parents

Parents are entitled to the custody of their children. They are free to make all decisions relating to the welfare of their child as they see fit, short of violating laws that protect children from abuse and neglect. Courts will not interfere with reasonable directives set forth by parents to discipline their children.

Modern statutes and courts have reconsidered the father's traditional primary role and now give equal powers, rights, and duties to both parents. In the case of divorce or separation, all rights of decision and control over the child go to the parent awarded custody, except when joint custody is awarded. In the case of the death of one parent, the other parent assumes custody.

The parent has the obligation to furnish a home for the child. A parent has the right to use corporal punishment, but it must not be so excessive as to constitute child abuse.

A parent's power over his child includes the authority and obligation to oversee medical treatment. A parent will most likely be held guilty of criminal neglect if he disregards the health requirements of his child. In cases where essential medical treatment is not procured for a child, juvenile authorities will start proceedings to provide care for the child and disciplinary action for the parent.

A controversial issue arises when a child is ill and the parents refuse health treatment for religious reasons. In an emergency that would jeopardize the child's life, a court may override the parental consent requirement and authorize treatment. A much greater obstacle exists when the parents, on religious grounds, refuse to provide their child with medical care that is important but not life threatening.

Parents are allowed broad discretion in making decisions regarding their child's education. This freedom, however, is not absolute and is tempered by compulsory state school attendance laws and the right of the state to require that the child be educated. However, most states now allow home schooling, with education provided by a parent.

A parent who fails to carry out obligations or abuses parental rights is guilty of a crime. A parent who fails to make certain that her child regularly goes to school can be held criminally liable for violating compulsory attendance laws. A number of states have criminal nonsupport and abandonment statutes that make it unlawful for a parent to neglect to provide for her child. Where essential support has been provided by an outside source, such as an agency or an individual, this source can initiate a lawsuit to recoup the expenses of services and supplies. A person who has custody or guardianship of a child can initiate a lawsuit to request that the noncustodial parent pay a suitable amount of money on a regular basis to support the child.


Parents usually have a legal right to custody of their own offspring. The Supreme Court has established that the right to Child Custody by a parent is constitutionally protected. The general presumption of the courts is that a child's welfare is protected best when the natural ties of mother and father are preserved. In the absence of clear evidence that a child is in danger, the state must not interfere with the judgment of the parents.

When the two parents do not live together, the question arises as to where the child will reside. In some cases, one parent will agree to relinquish custody to the other parent without giving up any other parental privileges. Although the custodial parent supervises the child's daily care, the noncustodial parent ordinarily has the right to be told about significant occurrences in the child's life. In addition, the noncustodial parent is usually entitled to visit the child at regular intervals. The noncustodial parent may seek a change in custody arrangements if circumstances so mandate.

If separated or divorced parents cannot agree on custody arrangements, the court will intervene. The court considers the circumstances of each case in light of a parent's ability to support and care for the child. In all custodial decisions, the best interests of the child are of paramount importance.

A battle for custody of a child does not always involve the parents. Custody is frequently sought by other relatives, including grandparents, uncles, aunts, or others, such as stepparents or foster parents.

In the event that a child is illegitimate, the unwed mother has a primary custody right that traditionally could not be defeated by the father. However, the Supreme Court has recognized the unwed father's interest in his child and the potential ability to obtain custody or visitation rights (Lehr v. Robertson, 463 U.S. 248, 103 S. Ct. 2985, 77 L. Ed. 614 [1983]).

In many families, grandparents play an important role in the upbringing of children. When the parents of a child separate and divorce, many of these grandparents continue to play an active role in the children's lives. Every state has enacted legislation that allows a court to grant visitation rights to grandparents if the grandparents meet certain criteria. Such criteria often require that the visitation is in the best interests of the child, that one of the parents is deceased, and that the grandparent has cared for the child for a significant period of time prior to filing the petition.

In Troxel v. Granville, 530 U.S. 57, 120 S. Ct. 2054, 147 L. Ed. 2d 49 (2000), the U.S. Supreme Court held that a grandparent visitation statute in the state of Washington, which allowed a court to grant visitation rights to any person at any time if it was in the best interests of the child, was unconstitutional. Noting that this broad statute placed a substantial burden on the traditional parent-child relationship, Justice sandra day o'connor held that the statute denied parents substantive due process. However, the Court did not hold that all grandparent visitation statutes are unconstitutional, leaving this determination to the state courts. State legislatures have since struggled to draft grandparent visitation and custody statutes that remain constitutional under this decision.


Generally a parent is responsible for support of a minor child. This responsibility encompasses the essentials of food, clothing, and shelter, as well as education and medical care. A parent who is unable to provide such support is excused. However, that parent must demonstrate an earnest effort to become employed so that he can fulfill his financial responsibility.

At common law, the child's father had the primary duty to support the child. The law now recognizes that both parents have an equal responsibility for the support of a child.

Parents are not entitled to use money that belongs to the child (for example, an inheritance) for the child's support. Although a parent is allowed to petition the court to release a certain amount of money for the child's expenses, courts are generally unwilling to honor such requests unless warranted by the circumstances. It is, for example, proper to release funds to support a child whose only other means of support would be through public welfare.

State and federal governments have become more active in requiring parents to support their children. If parents live apart, whether by reason of divorce or separation, or if they have remained unmarried, various remedies are available to enforce court-issued child support orders. State statutes generally provide criminal misdemeanor penalties for a default on support obligations, but courts typically use the contempt power as an enforcement vehicle. Civil contempt is imposed to encourage payment by jailing for an indeterminate time a parent who is able to pay. The parent is free to leave jail as soon as the parent makes the payment. Criminal contempt is imposed as punishment for default, the sentence being for a specific period.

States have also set up child support collection systems that use stronger enforcement methods to ensure compliance. If a parent fails to pay court-ordered child support, his tax refunds and wages can be garnished, and his driver's license can be revoked.

The federal government has sought to ensure that child support is paid. The Child Support Recovery Act of 1992 (18 U.S.C.A. ยง 338) makes willful failure to support a child in another state a federal crime. Prosecution is available for unpaid support exceeding $5,000 or for obligations unpaid longer than one year. Penalties range from imprisonment to fines. First offenses are misdemeanors; repeat offenses are felonies. In addition, federal courts may make the payment of child support a condition of probation.

State governments have also sought to ensure that parents who are recipients of child support payments receive these payments. The Texas attorney general, for example, oversees a child support division, which is responsible for ensuring that child support payments are received and distributed properly. The division determines what is required on a case-by-case basis, but generally noncustodial parents must submit child support payments directly to the division, which then distributes this money to the custodial parent. If the noncustodial parent fails to make the child support payments, the division may locate the parent and take a number of remedial actions, including suspension of state licenses. Other states employ similar systems.

The general rule is that no one is obligated to support a child to whom the person is not related. A number of states, however, currently require a stepfather to support his wife's children if he lives with them. A child whose natural father does not contribute to her support might be allowed to receive welfare benefits unless she is adopted by the stepfather.

A parent's support obligation does not end merely because the parent is not living with the child. Upon divorce or legal separation, child support agreements arrange for the child's continued support. An identified father must aid in the support of his illegitimate child, even if they have never lived together.

The duty of a parent to support a minor child sometimes continues even when the child becomes a parent, such as the case of a 16-year-old girl who has an illegitimate child but continues to live with her parents. The unwed father, however, would have primary responsibility for support of his child provided he acknowledged the child as his or the court orders him to provide support following an action to establish his paternity.

The common-law rule is that a parent has no obligation to support an adult child. Similarly, an adult child has no duty to support parents or grandparents. Some states, however, have altered this rule by enacting statutes that impose financial responsibilities upon people for their poverty-stricken relatives. Certain laws require parents to provide support for a child who is incapable of earning a living because of a mental or physical disability regardless of whether the child has reached the age of majority. Similarly, other statutes require children to support parents who would otherwise be dependent on public welfare.

Child's Earnings and Services

At common law, a father had the right to the earnings of a child. State statutes have modified this principle to give either a primary right to a child's earnings to the custodial parent or an equal right to both parents. The right to a child's wages stems from the parental duty of support and, therefore, can be destroyed if a parent neglects or deserts the child. States, however, also have enacted laws that place a child's earnings in trust until the child reaches the age of majority. These laws were originally passed in the 1930s to protect child actors and entertainers who earned large sums of money. Before these laws were passed, some of the parents of these children had squandered their children's incomes.

The issue of the services of a child, which range from performing simple household tasks to working in the family business, ordinarily arises when a child has been injured. A parent may sue the individual who caused the child harm and claim damages for both medical costs and loss of the child's services.

Wrongful Death and Wrongful Life Actions

A child is entitled to start a wrongful death action against anyone who causes the death of his parent. Parents may also sue for the wrongful death of children, although at times their economic value to the family is arguable. Parents may recover, however, for the loss of companionship or for their mental pain and suffering upon the loss of the child.

Some state laws prevent parents from recovering for the death of an adult child who is either financially independent or married. Ordinarily the parent who brings suit for wrongful death must be a legal parent, whether natural or adoptive. A parent who has neglected or failed to support a child generally cannot sue for wrongful death.

Wrongful life cases arise when parents object to the birth of an unwanted or unplanned child. Cases have involved faulty sterilization, failure to diagnose a pregnancy, or, in the case of a pharmacist, dispensing the wrong birth control pills. In a majority of states, the courts refuse to entertain such suits, partly on grounds of public policy and partly on the theory that the benefit of having and keeping the child outweighs any damage. Other courts have allowed recovery, some holding that the probable enjoyment the child will bring must be offset by the cost of having and raising the child. Compensation for the cost of pregnancy and the pain and suffering of pregnancy and childbirth has been upheld.


Emancipation is a legal occurrence by which a child acquires the freedom attached to adulthood earlier than at the statutory age. There are no set procedures by which emancipation may be accomplished. Generally, enlistment in the armed forces, marriage, or becoming self-supporting will effect emancipation. Typically, the inquiry takes place after the fact, and if the child is found to be independent of the parents, emancipation has probably occurred, and the court will be more likely to recognize this emancipation.

An agreement may be made between the parents and the child whereby the child leaves the parents' home and establishes an independent life. Once this happens, the parents relinquish the right to custody and supervision of the child. Another important meaning of emancipation is that it ends the parental obligation of support.

Another important legal consideration relates to the effect of commercial dealings of persons who, but for emancipation, would have been minors. Once a nearly absolute defense, modern law has significantly restricted the effect of minority as a legal defense to contractual obligations to third parties. Thus, an emancipated 16-year-old girl who signs a contract to buy a car cannot avoid the terms of the contract by later pleading that she was underage and could not legally bind herself.

The issue of emancipation has declined in importance because most states have made 18 years the age of majority. The most serious questions concerning emancipation involved the age spread from 18 to 21 years.

Responsibility of Parents for Injuries

At common law, parents were not responsible for torts their children committed against third parties. When they had neglected their duty of supervision, parents could be held liable for their own negligence. This largely remains true, although many state statutes now hold parents vicariously liable for torts committed by their children, for a limited amount.

Another exception to parental immunity from liability for their child's torts is the "family purpose doctrine," which allows third parties to recover from parents when they were injured by children driving the family car. This doctrine is based on the idea that the child is acting as the parent's agent or authorized representative.

To promote family unity, a number of states have refused to permit lawsuits between parents and children for harm caused by negligence. Some states have rejected this doctrine, however, particularly in the event of automobile accidents. In such cases, it was perceived as unjust to allow strangers to obtain insurance benefits when family members were precluded from doing so. A majority of states, however, still regard a parent as immune from legal actions for exercising parental authority and also for injuries stemming from negligent supervision.

In Loco Parentis

Persons may act in loco parentis, "in place of the natural parents," in relation to the child in certain situations. Ordinarily, no one is responsible for a child's control or support unless that person is the parent, whether natural or adoptive, or has otherwise agreed to take care of the child. The question of whether a person acting in place of the parent has these responsibilities is contingent upon whether the person intended to undertake them. A college, for example, may act in loco parentis when it houses its students in college-supervised dormitories and imposes rules and regulations on student behavior.

Further Readings

Pardeck, John T. 2002. Children's Rights: Policy and Practice. New York: Haworth Social Work Practice Press.

Postman, Neil. 1982. The Disappearance of Childhood. New York: Delacorte.

Purdy, Laura M. 1992. In Their Best Interest? Ithaca, N.Y.: Cornell Univ. Press.

Richards, Janet Leach. 1999. "Children's Rights v. Parents' Rights: A Proposed Solution to the Custodial Relocation Conundrum." New Mexico Law Review 29 (spring).

Walker, Nancy E., Catherine M. Brooks, and Lawrence S. Wrightsman. 1999. Children's Rights in the United States: In Search of a National Policy. Thousand Oaks, Calif.: Sage Publications.

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