Parent and Child

Page 1
1 of 145 DOCUMENTS
American Jurisprudence, Second Edition

Copyright © 2011 West Group
Laura Hunter Dietz, J.D.
Parent and Child
59 Am Jur 2d Parent and Child Summary
Parent and Child Summary
Scope:
This article discusses the relationship of parent and child, with specific discussions as to the general nature of the rela-
tionship and definitions of applicable terms, the creation and termination of the parent-child relationship, parental rights
and duties, the effect of emancipation on the relationship and related rights and duties of the parties, support of parents
by their children, liability of parents for the conduct of children and offenses of children against their parents, and ac-
tions involving parents and children.
Treated Elsewhere:
Abandonment, desertion, or nonsupport of children, criminal liability for, see 23 Am. Jur. 2d, Desertion and Nonsupport
§§ 13 et seq.
Abduction or kidnapping of child by parent or person in loco parentis, see 1 Am. Jur. 2d, Abduction and Kidnapping §§
34 et seq.
Adoption of children, see 2 Am. Jur. 2d, Adoption
Apprentices, see 27 Am. Jur. 2d, Employment Relationship §§ 50, 51
Assault and battery: liability of teacher or other school personnel for criminal or civil, see 6 Am. Jur. 2d, Assault and
Battery §§ 31, 104, 119; liability of parents and persons vested with quasi-parental authority, generally, see 6 Am. Jur.
2d, Assault and Battery §§ 32, 33, 104, 119
Custody, visitation, and support of children, matters as to, in context of: divorce or separation proceedings, see 24A
Am. Jur. 2d, Divorce and Separation §§ 929 et seq.; habeas corpus proceedings, see 39 Am. Jur. 2d, Habeas Corpus §§
156, 165, 185, 186, 191, 194, 205; annulment proceedings, see 4 Am. Jur. 2d, Annulment of Marriage §§ 92, 93
Deeds, presumption of acceptance of beneficial conveyance by infant grantees where executed by parent, see 23 Am.
Jur. 2d, Deeds §§ 80, 133
Delinquent children, generally, see 47 Am. Jur. 2d, Juvenile Courts and Delinquent and Dependent Children §§ 52 et
seq.
Dependent or neglected children, generally, see 47 Am. Jur. 2d, Juvenile Courts and Delinquent and Dependent Chil-
dren §§ 45 et seq.
Employer's liability for injuries to youthful employees: generally, see 27 Am. Jur. 2d, Employment Relationship §§ 269
et seq.; child labor statute's effect on defenses or partial defenses to liability of employer for injury to employee, see 27
Am. Jur. 2d, Employment Relationship §§ 333, 381
Enlistment of minors in military service, see 53 Am. Jur. 2d, Military, and Civil Defense §§ 63 to 65
Evidence: statements of child victims of abuse as within residual hearsay exception or spontaneous -- statement excep-
tion, see 29 Am. Jur. 2d, Evidence §§ 687 to 689, 868; admissibility of evidence of child sexual abuse accommodation
syndrome in rape trial, see 65 Am. Jur. 2d, Rape § 52
Failure to report child abuse by parent, liability of private school for, see 68 Am. Jur. 2d, Schools § 406
Federal Parent Locator Service, generally, see 24A Am. Jur. 2d, Divorce and Separation § 1052
Gifts to children: capacity of children to make or take gifts, generally, see 38 Am. Jur. 2d, Gifts §§ 14 to 16; gifts as ad-
vancements against childrens' share of parent's estate, see 3 Am. Jur. 2d, Advancements
Guardian and ward, matters relating to the relationship of, generally, see 39 Am. Jur. 2d, Guardian and Ward
Page 2
Husband and wife, legal relationship and rights, duties, privileges, and duties arising therefrom, see 41 Am. Jur. 2d,
Husband and Wife
Incest, criminal offense of, see 41 Am. Jur. 2d, Incest
Insurance proceeds: children of insured as beneficiaries entitled to, see 44 Am. Jur. 2d, Insurance §§ 1730 to 1733; ben-
eficiaries entitled to proceeds under policy taken out by parents on life of child, see 44 Am. Jur. 2d, Insurance § 1734
Interjurisdictional enforcement of support obligations, Uniform Reciprocal Enforcement of Support Act, and Uniform
Support of Dependents Act, see 23 Am. Jur. 2d, Desertion and Nonsupport §§ 44 et seq.
Intestacy laws, rights of children to property under, see 23 Am. Jur. 2d, Descent and Distribution
Juvenile courts, generally, see 47 Am. Jur. 2d, Juvenile Courts and Delinquent and Dependent Children
Land owner or occupier, duties owed to and liability of, regarding children, including duties and liability under attrac-
tive nuisance doctrine, see 62 Am. Jur. 2d, Premises Liability §§ 208 et seq.
Legitimacy or paternity of children: generally, see 41 Am. Jur. 2d, Illegitimate Children; determination in proceedings
for annulment of marriage, see 4 Am. Jur. 2d, Annulment of Marriage § 94
Marriage between parent and child, prohibition of, see 52 Am. Jur. 2d, Marriage § 51
Medical treatment of minor child, parents' consent as sufficient to authorize, generally, see 61 Am. Jur. 2d, Physicians,
Surgeons, and Other Healers §§ 178 to 180
Minors: matters generally regarding protection of, capacities, disabilities, and privileges of, contracts and conveyances
concerning, and tort liability of, see 42 Am. Jur. 2d, Infants; name of minor, see 57 Am. Jur. 2d, Name §§ 43 et seq.
Negligence of children, generally, see 57A, 57B Am. Jur. 2d, Negligence
Prenatal injuries, and actions for wrongfully causing birth, wrongful life, birth, pregnancy, or conception, see 62 Am.
Jur. 2d, Prenatal Injuries; Wrongful Life, Birth, or Conception
Residence, for school purposes, of child as generally presumed to be residence of child's parents or guardian, and effect
of child's residing other than with parent or legal guardian on residence, see 68 Am. Jur. 2d, Schools §§ 246 to 248
Restraint of children by noncriminal court order as grounds for habeas corpus relief, see 39 Am. Jur. 2d, Habeas Corpus
§§ 78 et seq.
Right of children to die or refuse life-saving treatment offering cure, see 22A Am. Jur. 2d, Death §§ 578, 605 et seq.
Schoolteacher as standing in loco parentis to students for purposes of authority to discipline students, see 68 Am. Jur.
2d, Schools § 290
Social security insurance benefits to children of covered individuals, see 70A, 70B Am. Jur. 2d, Social Security and
Medicare § 673 et seq., 723 et seq., 865, 963 et seq.
Seduction, right of father, mother, or person in loco parentis to seduced female to bring suit for, see 70 Am. Jur. 2d, Se-
duction §§ 61 to 63
Statutes of limitations, Infancy as affecting, see 51 Am. Jur. 2d, Limitation of Actions §§ 224 et seq.
Support of persons, agreements for, generally, see 73 Am. Jur. 2d, Support of Persons
Uniform Civil Liability for Support Act, generally, see 23 Am. Jur. 2d, Desertion and Nonsupport § 71
Veterans: administration of veterans; benefits as to minors, incompetents, and other wards of, see, 77 Am. Jur. 2d, Vet-
erans and Veterans' Laws §§ 43 et seq.; educational assistance to children of, see 77 Am. Jur. 2d, Veterans and Veter-
ans' Laws § 146
Wills, rights of children to make or take under, see 79, 80 Am. Jur. 2d, Wills
Workers' compensation benefits, entitlement of children of deceased employee to, see 82 Am. Jur. 2d, Workers' Com-
pensation §§ 207 et seq.
REFERENCE: Research References
A.L.R. Index: Children

A.L.R. Index: Custody and Support of Children
A.L.R. Digest: Parent and Child
Defense in proceeding for termination of parental rights on ground of mental disability, 46 Am. Jur. Proof of Facts 3d
231
Proof of negligent sale, entrustment, or storage of firearm, 37 Am. Jur. Proof of Facts 3d 1
Grounds for termination of parental rights, 32 Am. Jur. Proof of Facts 3d 83
Sperm bank liability for donor semen transmitted AIDS, 25 Am. Jur. Proof of Facts 3d 1
Parental failure to control child, 45 Am. Jur. Proof of Facts 2d 549
Loco parentis status, 28 Am. Jur. Proof of Facts 2d 545
Loss of consortium in parent-child relationship, 27 Am. Jur. Proof of Facts 2d 393
Page 3
Parent's failure to supervise children, 11 Am. Jur. Proof of Facts 2d 541

Child neglect, 3 Am. Jur. Proof of Facts 2d 265
Denial of child visitation rights, 2 Am. Jur. Proof of Facts 2d 791
Sperm Bank Liability, 50 Am. Jur. Trials 1
Social Worker Malpractice for Failure to Protect Foster Children, 41 Am. Jur. Trials 1
Child custody litigation, 22 Am. Jur. Trials 347
9B Am. Jur. Legal Forms 2d, Infants
13B Am. Jur. Legal Forms 2d, Parent and Child
19 Am. Jur. Pleading and Practice Forms, Parent and Child
Model Juvenile Court Act §§ 47(a), 49
Uniform Child Custody and Jurisdiction Enforcement Act § 102
Uniform Interstate Family Support Act §§ 201, 301, 401, 501
Uniform Marriage and Divorce Act § 309
Uniform Parentage Act §§ 102, 201 to 204, 702 to 706, 801 et seq.
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2 of 145 DOCUMENTS

Parent and Child

I. General Nature of Relationship; Definitions
A. In General
59 Am Jur 2d Parent and Child § 1
§ 1 Generally
The "parent-child relationship" is the legal relationship between a child and a parent of the child, whether mother-child
or father-child, n1 and includes birth parents and adoptive parents. n2 A child born to parents who are not married to each
other has the same rights under the law as a child born to parents who are married to each other. n3
The law of parent and child defines the legal rights and duties which spring from the mutual relation of the father or
mother and their child. It is governed by state, rather than federal, law, as there is no federal law of domestic relations. n4
The relationship of parent and child is a status, not a property right. n5 The status is one which may be altered or abro-
gated by the state as parens patriae in furtherance of a societal concern for the protection of the child's best interests. n6
However, it may not be changed by the state without due process and compliance with the statutes involved. n7
FOOTNOTES:
n1 U.P.A. § 102(15).
n2 U.P.A. § 102(14).
n3 U.P.A. § 202.
As to who are illegitimate children, see 41 Am. Jur. 2d, Illegitimate Children §§ 1 to 8.
n4 Boggs v. Boggs, 520 U.S. 833, 117 S. Ct. 1754, 138 L. Ed. 2d 45 (1997); Fierro v. Reno, 217 F.3d 1 (1st Cir. 2000); Anonymous v.
Anonymous, 44 Misc. 2d 14, 252 N.Y.S.2d 913 (Fam. Ct. 1964).
n5 Anguis v. Superior Court In and For Maricopa County, 6 Ariz. App. 68, 429 P.2d 702 (1967); Elliott v. Elliott, 235 N.C. 153, 69 S.E.2d
224 (1952); Looper v. McManus, 1978 OK CIV APP 26, 581 P.2d 487 (Okla. Ct. App. Div. 2 1978); Com. ex rel. Berg v. Catholic Bureau,
167 Pa. Super. 514, 76 A.2d 427 (1950); Com. ex rel. Teitelbaum v. Teitelbaum, 160 Pa. Super. 286, 50 A.2d 713 (1947).
n6 In re N, 96 N.J. Super. 415, 233 A.2d 188 (App. Div. 1967); Davis v. Smith, 266 Ark. 112, 583 S.W.2d 37 (1979).
n7 Anguis v. Superior Court In and For Maricopa County, 6 Ariz. App. 68, 429 P.2d 702 (1967); Davis v. Smith, 266 Ark. 112, 583 S.W.2d
37 (1979).
SUPPLEMENT:
Cases
Page 5
A parent's right to raise his or her child is an important interest warranting deference and, absent a powerful countervail-
ing interest, requires protection. In re P.L., 778 N.W.2d 33 (Iowa 2010).
The constitutional right to family integrity is not absolute. In re D.C., 203 N.J. 545, 4 A.3d 1004 (2010).
REFERENCE: U.C.C.J.E.A. § 102(2)

U.P.A. §§ 102(5), 102(14), 102(15), 201, 202, 702 to 704
West's Key Number Digest, Parent and Child [westkey]1, 12
A.L.R. Digest: Parent and Child § 1
Sperm Bank Liability for Donor Semen Transmitted AIDS, 25 Am. Jur. Proof of Facts 3d 1
13B Am. Jur. Legal Forms 2d, Parent and Child §§ 191:244, 191:254
West's Key Number Digest, Parent and Child [westkey]1
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3 of 145 DOCUMENTS

Parent and Child

A. In General
§ 2 "parent"; "father"; "mother"
The word "parent" means one who generates a child, n1 and refers to both the father and mother. It is sometimes re-
stricted to the father and mother by blood, as opposed to persons standing in loco parentis, n2 though it may also mean,
simply, the lawful father or mother of a person. n3 Thus, a stepparent is not ordinarily included within the word "parent,"
n4
nor a stepfather within the term "father," n5 although it has been held that a stepmother can be included within the word
"mother." n6 Although some authorities reach a contrary conclusion, n7 it has been held that the term "parent" includes an
adopting parent, n8 even sometimes to the exclusion of the natural parents. n9 The word "parent" has been held to include
the father of a statutorily legitimated child born of a void marriage, n10 but it may n11 or may not n12 include the father of an
illegitimate child. The term "parent" ordinarily will not include a grandparent. n13
When used in statutes, the meaning of such terms as "parent" and "father" may be affected by their context and by the
purpose of the statute. Thus, in the federal statute providing for aid for needy children, if "a parent" is deceased, contin-
ually absent from the home, or physically or mentally incapacitated, the term "parent" includes only those persons with
a legal duty of support. n14 Also, as used in a statute making willful failure to provide for a minor child a misdemeanor,
the term "father" has been held not limited to the biological father, the determinative factor being whether the legal rela-
tionship of father and child exists. n15 Statutes using the word "parent" are sometimes construed to include persons in
loco parentis. n16
FOOTNOTES:
n1 In re Sarah C., 8 Cal. App. 4th 964, 11 Cal. Rptr. 2d 414 (4th Dist. 1992); Hendy v. Industrial Accident Board, 115 Mont. 516, 146 P.2d
324 (1944).
n2 Brummitt v. Com., 357 S.W.2d 37 (Ky. 1962); Coakley v. Coakley, 216 Mass. 71, 102 N.E. 930 (1913); Hendy v. Industrial Accident
Board, 115 Mont. 516, 146 P.2d 324 (1944); Foreman v. Henry, 87 Okla. 272, 210 P. 1026 (1922).
n3 Kerins v. Lima, 425 Mass. 108, 680 N.E.2d 32 (1997).
n4 Coakley v. Coakley, 216 Mass. 71, 102 N.E. 930 (1913); Appeal of Fowler, 130 Vt. 176, 288 A.2d 463 (1972).
n5 Owens v. Munden, 168 N.C. 266, 84 S.E. 257 (1915).
n6 Jones v. Firemen Relief Ass'n of City of Milwaukee, 151 Wis. 215, 138 N.W. 618 (1912).
n7 Mount v. Tremont Lumber Co., 121 La. 64, 46 So. 103 (1908); Boroughs v. Oliver, 217 Miss. 280, 64 So. 2d 338 (1953).
Page 7
n8 In re Sarah C., 8 Cal. App. 4th 964, 11 Cal. Rptr. 2d 414 (4th Dist. 1992); Ransom v. New York, C & St. L.R. Co., 93 Ohio St. 223, 112
N.E. 586 (1915).
n9 Betz v. Horr, 276 N.Y. 83, 11 N.E.2d 548, 114 A.L.R. 491 (1937); Ransom v. New York, C & St. L.R. Co., 93 Ohio St. 223, 112 N.E.
586 (1915).
n10 Mund v. Rehaume, 51 Colo. 129, 117 P. 159 (1911).
n11 State v. Napoleon, 37 N.J. Super. 595, 117 A.2d 654 (County Ct. 1955).
n12 In re M., 51 A.L.R.2d 488 (CA 1955).
n13 In re Leonard's Will, 143 Misc. 172, 256 N.Y.S. 355 (Sur. Ct. 1932).
n14 Lewis v. Martin, 397 U.S. 552, 90 S. Ct. 1282, 25 L. Ed. 2d 561 (1970); King v. Smith, 392 U.S. 309, 88 S. Ct. 2128, 20 L. Ed. 2d 1118
(1968).
n15 People v. Sorensen, 68 Cal. 2d 280, 66 Cal. Rptr. 7, 437 P.2d 495, 25 A.L.R.3d 1093 (1968).
n16 King v. Smith, 392 U.S. 309, 88 S. Ct. 2128, 20 L. Ed. 2d 1118 (1968).
As to persons in loco parentis, generally, see §§ 9 et seq.

U.P.A. §§ 102(5), 102(14), 102(15), 201, 202, 702 to 704
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4 of 145 DOCUMENTS

Parent and Child

A. In General
§ 3 "Surrogate parent"
Courts utilize three tests to determine who is the parent of a child resulting from a contested surrogacy birth arrange-
ment: (1) the intent of the parties; (2) the genetics of the parent and the child; (3) giving birth. The intent-of-the-parties
test has been applied when it is impossible to clearly establish parentage under any statutory or constitutional principle,
as where a genetics and birth relationship do not coincide in the same person, resulting in some courts holding that the
parties who intended to procreate the child -- to bring about the birth of a child that they intended to raise as their own --
are deemed the natural and legal parents of the child, n1 while other courts have specifically rejected that position. n2
Some courts have looked to genetics as the primary basis to determine who is the parent, and have held that the parents
were the persons who provided the genetic imprint for the child. n3
FOOTNOTES:
n1 Johnson v. Calvert, 5 Cal. 4th 84, 19 Cal. Rptr. 2d 494, 851 P.2d 776 (1993), cert. dismissed, 510 U.S. 938, 114 S. Ct. 374, 126 L. Ed. 2d
324 (1993).
Related References:
Surrogacy: A last resort alternative for infertile women or a commodification of women's bodies and children? 12 Wis
Women's LJ 1:113 (1997).
n2 Belsito v. Clark, 67 Ohio Misc. 2d 54, 644 N.E.2d 760 (C.P. 1994).
n3 In re Marriage of Moschetta, 25 Cal. App. 4th 1218, 30 Cal. Rptr. 2d 893 (4th Dist. 1994), as modified, (June 30, 1994); Arredondo by
Arredondo v. Nodelman, 163 Misc. 2d 757, 622 N.Y.S.2d 181 (Sup 1994).

U.P.A. §§ 102(5), 102(14), 102(15), 201, 202, 702 to 704
Determination of status as legal or natural parents in contested surrogacy births, 77 A.L.R. 5th 567
Surrogate parenting agreement. 13B Am. Jur. Legal Forms 2d, Parent and Child § 191:244.
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Parent and Child

A. In General
§ 4 "Child"; "children"
A "child" is a person, and not a subperson over whom the parent has an absolute possessory interest; a child has rights
too, some of which are of a constitutional magnitude. n1
When used in relation to the word "parent," n2 the words "child" or "children" do not necessarily signify minority, but
may include adult children, n3 and even adult nondependent children. n4 However, in a different context, it may exclude
children who have reached majority n5 or who have been emancipated. n6
The words "child" or "children" in a statute may include illegitimate children, n7 though it has been said that, in designat-
ing a relationship to the father, they ordinarily refer to legitimate offspring. n8 Under wrongful death statutes, the deci-
sions are not in harmony on the question whether there can be a recovery for the benefit of an illegitimate child in an ac-
tion for the wrongful death of the mother, with some cases allowing recovery n9 and others denying it. n10 The right to re-
cover for the death of the putative father has usually been denied, n11 although there is authority to the contrary. n12
The word "children" does not ordinarily include stepchildren n13 or grandchildren. n14 In a statute, it may include adopted
children. n15
FOOTNOTES:
n1 Bennett v. Jeffreys, 40 N.Y.2d 543, 387 N.Y.S.2d 821, 356 N.E.2d 277 (1976); Overfield v. Collins, 199 W. Va. 27, 483 S.E.2d 27
(1996), reh'g refused, (Feb. 11, 1997).
As to the meaning of "child" or "children" in deeds, see 23 Am. Jur. 2d, Deeds § 243.
As to the meaning of "child" or "children" in insurance policies, see 44 Am. Jur. 2d, Insurance § 1730.
As to the meaning of "child" or "children" in wills, see 80 Am. Jur. 2d, Wills §§ 1200 to 1205.
As to who are children under wrongful death statutes, see 22A Am. Jur. 2d, Death §§ 98 et seq.
As to children protected under statutes making abandonment, desertion, or nonsupport of a child an offense, see 23 Am. Jur. 2d, Desertion
and Nonsupport §§ 36 to 39.
n2 State ex rel. Buerk v. Calhoun, 330 Mo. 1172, 52 S.W.2d 742, 83 A.L.R. 1393 (1932).
n3 Colpitt v. Cheatham, 1954 OK 77, 267 P.2d 1003 (Okla. 1954).
Under the Uniform Parentage Act, a "child" is an individual of any age whose parentage may be determined under the Act. U.P.A. § 102(5).
n4 Jensen v. Elgin, J & E. Ry. Co., 24 Ill. 2d 383, 182 N.E.2d 211, 94 A.L.R.2d 904 (1962).
Page 10
n5 Dallman v. Dallman, 170 Cal. App. 2d 729, 339 P.2d 636 (1st Dist. 1959).
Under the Uniform Child Custody Jurisdiction and Enforcement Act, a "child" is an individual who has not attained 18 years of age.
U.C.C.J.E.A. § 102(2)
n6 State v. Gonzales, 241 La. 619, 129 So. 2d 796, 84 A.L.R.2d 1248 (1961).
As to the effect of emancipation of a child on the relationship, duties, and rights of a parent and child, see §§ 79 to 86.
n7 De Sylva v. Ballentine, 351 U.S. 570, 76 S. Ct. 974, 100 L. Ed. 1415 (1956).
As to an illegitimate child as within the meaning of a gift or conveyance to a "child" or "children," see 41 Am. Jur. 2d, Illegitimate Children
§ 107.
n8 Ellis v. Henderson, 204 F.2d 173 (5th Cir. 1953).
n9 Middleton v. Luckenbach S.S. Co., 70 F.2d 326 (C.C.A. 2d Cir. 1934); American General Ins. Co. v. Alexander, 216 S.W.2d 997 (Tex.
Civ. App. Beaumont 1948), writ refused; Galveston, H. & S.A. Ry. Co. v. Walker, 48 Tex. Civ. App. 52, 106 S.W. 705 (1907), writ refused.
n10 Sesostris Youchican v. Texas & P. Ry. Co., 147 La. 1080, 86 So. 551 (1920); Washington, B & A.R. Co. v. State, 136 Md. 103, 111 A.
164 (1920).
n11 Board of Com'rs of Port of New Orleans v. City of New Orleans By and Through Public Belt R. Com'n, 223 La. 199, 65 So. 2d 313
(1953); State to Use of Holt v. Try, Inc., 220 Md. 270, 152 A.2d 126, 72 A.L.R.2d 1232 (1959); Bonewit v. Weber, 95 Ohio App. 428, 54
Ohio Op. 20, 120 N.E.2d 738 (9th Dist. Summit County 1952); Molz v. Hansell, 115 Pa. Super. 338, 175 A. 880 (1934).
n12 Civil v. Waterman Steamship Corporation, 217 F.2d 94 (2d Cir. 1954); Hammond v. Pennsylvania R. Co., 31 N.J. 244, 156 A.2d 689
(1959); Edenfield v. Jackson, 251 Ga. 491, 306 S.E.2d 911 (1983); Claim of Burns, 55 N.Y.2d 501, 450 N.Y.S.2d 173, 435 N.E.2d 390
(1982).
n13 Flanagan v. Railroad Retirement Bd., 332 F.2d 301 (3d Cir. 1964); In re Smith's Estate, 49 Wash. 2d 229, 299 P.2d 550, 63 A.L.R.2d
299 (1956).
n14 In re Merrill's Trust, 106 N.H. 99, 205 A.2d 851 (1964).
n15 Ransom v. New York, C & St. L.R. Co., 93 Ohio St. 223, 112 N.E. 586 (1915).

U.P.A. §§ 102(5), 102(14), 102(15), 201, 202, 702 to 704
Right of recovery, under wrongful death statute, for benefit of illegitimate child or children of decedent, 72 A.L.R. 2d
1235.
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6 of 145 DOCUMENTS

Parent and Child

A. In General
§ 5 "Child artificially inseminated"
Artificial insemination is the introduction of semen into the female reproductive tract by mechanical means in order to
effect pregnancy without sexual intercourse. Heterologous artificial insemination occurs where the specimen of semen
used is obtained from a third party or donor. n1
If a wife is inseminated artificially with semen donated by a man not her husband, the husband is treated in law as if he
were the natural father of a child thereby conceived. The donor of semen provided for use in the artificial insemination
of a married woman other than the donor's wife is treated in law as if he were not the natural father of a child thereby
conceived. n2
Practice Guide: Although it carries with it a presumption of legitimacy, the husband of a woman to whom a child is
born by means of artificial insemination can formally adopt the child, as adoption terminates all rights of the natural
parent. n3
A child conceived through use of the semen of a third-party donor with the husband's consent is not the product of an
adulterous relationship. n4
FOOTNOTES:
n1 41 Am. Jur. 2d, Illegitimate Children § 2.
As to a husband's duty of support of a child artificially conceived, see § 56.
As to a husband's visitation rights toward a child artificially conceived, see § 38.
n2 U.P.A. §§ 702 to 704.
n3 Welborn v. Doe, 10 Va. App. 631, 394 S.E.2d 732 (1990).
n4 People v. Sorensen, 68 Cal. 2d 280, 66 Cal. Rptr. 7, 437 P.2d 495, 25 A.L.R.3d 1093 (1968).
SUPPLEMENT:
Cases
Common law claim of de facto parentage existed such that woman, although neither the biological nor adoptive parent
of minor, had standing to file petition against biological mother of minor, seeking determination of rights and responsi-
bilities of shared parentage of minor, who was conceived by artificial insemination during the woman's 12-year intimate
Page 12
domestic relationship with mother. In re Parentage of L.B., 155 Wash. 2d 679, 122 P.3d 161 (2005), cert. denied, 2006
WL 271809 (U.S. 2006).

U.P.A. §§ 102(5), 102(14), 102(15), 201, 202, 702 to 704
Sperm Bank Liability for Donor Semen Transmitted AIDS, 25 Am. Jur. Proof of Facts 3d 1.
Sperm Bank Liability, 50 Am. Jur. Trials 1.
Agreement for artificial insemination -- Between husband, wife, and donor -- Identity of donor known. 13B Am. Jur.
Legal Forms 2d, Parent and Child § 191:254.
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7 of 145 DOCUMENTS

Parent and Child

A. In General
§ 6 "Family"
The parent-child relationship, whether natural or formalized through adoption, properly forms the core of the constitu-
tional notion of "family." n1 The meaning of the word "family" has been said to be a group of persons who share a com-
mon dwelling and table, n2 who have reciprocal, natural, or moral duties to support and care for each other. n3
FOOTNOTES:
n1 Rivera v. Marcus, 696 F.2d 1016 (2d Cir. 1982).
n2 Pesqueira v. Talbot, 7 Ariz. App. 476, 441 P.2d 73 (Div. 2 1968).
n3 Steva v. Steva, 332 S.W.2d 924 (Mo. 1960).

U.P.A. §§ 102(5), 102(14), 102(15), 201, 202, 702 to 704
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8 of 145 DOCUMENTS

Parent and Child

A. In General
§ 7 of child for parent
The relation of parent and child does not, of itself, establish any agency of the child for the parent. n1 Such an agency,
however, may exist by virtue of an express direction or employment, n2 or by implication from all the facts and circum-
stances of the case. n3 A parent may, on the theory of agency, be responsible for the torts of his child. n4
The parent is sometimes liable for necessaries furnished the child without any showing that the child acted as his agent.
n5
However, express or implied authority from the parent must be shown before he can be held on the child's contract for
other than necessaries. n6 A child's unauthorized act can become binding on the parent through the latter's ratification. n7
However, where the child did not act or assume to act for the parent, there can be no ratification. n8
FOOTNOTES:
n1 Winfrey v. Austin, 260 Ala. 439, 71 So. 2d 15 (1954); Commonwealth v. Slavski, 245 Mass. 405, 140 N.E. 465, 29 A.L.R. 281 (1923);
Sparkman v. Hardy, 223 Miss. 452, 78 So. 2d 584 (1955).
n2 Alderman v. City of New Haven, 81 Conn. 137, 70 A. 626 (1908); St. Paul Manor, Inc. v. Golburgh, 352 Mass. 784, 227 N.E.2d 701
(1967).
n3 Commonwealth v. Slavski, 245 Mass. 405, 140 N.E. 465, 29 A.L.R. 281 (1923).
n4 § 101.
n5 § 66
n6 Stimpson v. Hunter, 234 Mass. 61, 125 N.E. 155, 7 A.L.R. 1067 (1919).
n7 Wilks v. Stone, 339 S.W.2d 590 (Mo. Ct. App. 1960).
n8 Fisher v. Lutz, 146 Wis. 664, 132 N.W. 592 (1911).

U.P.A. §§ 102(5), 102(14), 102(15), 201, 202, 702 to 704
Page 15
Page 16
9 of 145 DOCUMENTS

Parent and Child

A. In General
§ 8 Of parent for child
The parent of a minor child, although its natural guardian, n1 is not, merely by reason of the parent-child relation, the
agent of the child, n2 and no presumption of the parent's agency arises merely from the relationship. n3 By force of his re-
lationship merely, a parent cannot bind his minor child by contracts made in his behalf. n4 The right of an infant to re-
scind his contract is unaffected by the fact that the parent was present and advised and approved the transaction, n5
though the right of disaffirmance does not apply to a contract between the parent and a third person of which the child is
a third-party beneficiary. n6 A judgment taken by consent of a parent is not binding on the child, n7 and the parent has no
authority, by reason of the parental relation only, to receive payment and enter satisfaction of a judgment recovered in
favor of the child. n8
A parent, however, may speak and act for his child when the child is legally incapable of acting for himself, and others
may properly rely on the action of the parent in such circumstances. n9 The power to enter into a contract for medical
care that binds the child to arbitrate any dispute arising thereunder is implicit in a parent's right and duty to provide for
the care of his child. n10
FOOTNOTES:
n1 39 Am. Jur. 2d, Guardian and Ward § 5.
n2 Dixie Auto Ins. Co. v. Steele, 288 Ala. 459, 262 So. 2d 283 (1972); McDonald v. City of Spring Valley, 285 Ill. 52, 120 N.E. 476, 2
A.L.R. 1359 (1918); Kirby v. Gulf Oil Corp., 230 S.C. 11, 94 S.E.2d 21 (1956).
As to parent's rights and powers with respect to management of child's property, see § 43.
n3 Raney v. Barnes Lumber Corp., 195 Va. 956, 81 S.E.2d 578 (1954).
n4 Bombardier v. Goodrich, 94 Vt. 208, 110 A. 11, 9 A.L.R. 1028 (1920).
n5 Gage v. Moore, 1948 OK 214, 200 Okla. 623, 198 P.2d 395 (1948); Hogue v. Wilkinson, 291 S.W.2d 750 (Tex. Civ. App. Texarkana
1956); Bombardier v. Goodrich, 94 Vt. 208, 110 A. 11, 9 A.L.R. 1028 (1920); Hines v. Cheshire, 36 Wash. 2d 467, 219 P.2d 100 (1950).
n6 Doyle v. Giuliucci, 62 Cal. 2d 606, 43 Cal. Rptr. 697, 401 P.2d 1 (1965); Marsak v. Title Guarantee & Trust Co., 154 Misc. 295, 276
N.Y.S. 891 (App. Term 1935).
n7 Missouri Pac. Ry. Co. v. Lasca, 79 Kan. 311, 99 P. 616 (1909).
n8 Paskewie v. East St. Louis & S. Ry. Co., 281 Ill. 385, 117 N.E. 1035 (1917).
Page 17
As to a compromise of judgment by a parent, see § 44.
n9 Buckner v. Vetterick, 124 Cal. App. 2d 417, 269 P.2d 67 (2d Dist. 1954).
n10 Doyle v. Giuliucci, 62 Cal. 2d 606, 43 Cal. Rptr. 697, 401 P.2d 1 (1965).

U.P.A. §§ 102(5), 102(14), 102(15), 201, 202, 702 to 704
Page 18
10 of 145 DOCUMENTS

Parent and Child

B. Persons in Loco Parentis
§ 9 Generally
A person stands in loco parentis when he puts himself in the situation of a lawful parent by assuming the obligations in-
cident to the parental relation without going through the formalities necessary to a legal adoption. n1 A person who acts
in loco parentis voluntarily performs all the duties a parent normally provides to his child. n2
The relationship of in loco parentis is established only when the person intends to assume toward the child the status of
a parent. n3 When a person takes a child not his own into his custody as a member of his own family, this constitutes
clear evidence of consent to stand in loco parentis. n4 The assumption of the parental relationship is largely a question of
intention, which may be shown by the acts and declarations of the person alleged to stand in that relation. n5
Where one stands in loco parentis to another, the rights and liabilities arising out of that relation are, as the words imply,
substantially the same as between parent and child, n6 although they may be enlarged or restricted by legislative enact-
ment. n7 While that relation continues, the adult is bound for the maintenance, care, and education of the child, and enti-
tled to its reasonable services without pay, in the same manner as an actual parent. n8
Unlike natural and adoptive parenthood, the status of being in loco parentis is temporary; n9 it may be abrogated at will
either by the surrogate parent or by the child. n10 Once the person alleged to be in loco parentis no longer discharges all
the duties incident to the parental relationship, the person is no longer in loco parentis. n11 Termination of the in loco par-
entis relationship also terminates the corresponding rights and responsibilities afforded thereby. n12
FOOTNOTES:
n1 U.S. v. Floyd, 81 F.3d 1517 (10th Cir. 1996) (applying Oklahoma law); State v. Bradford, 259 La. 381, 250 So. 2d 375 (1971); Hamilton
v. Foster, 260 Neb. 887, 620 N.W.2d 103 (2000); T.B. v. L.R.M., 786 A.2d 913 (Pa. 2001); Gribble v. Gribble, 583 P.2d 64, 1 A.L.R.4th
1263 (Utah 1978); Appeal of Fowler, 130 Vt. 176, 288 A.2d 463 (1972); McManus v. Hinney, 35 Wis. 2d 433, 151 N.W.2d 44 (1967).
n2 U.S. v. Floyd, 81 F.3d 1517 (10th Cir. 1996) (applying Oklahoma law).
A person in loco parentis is charged, factitiously, with a parent's rights, duties, and responsibilities. Molock v. Dorchester County Family
YMCA, Inc., 139 Md. App. 664, 779 A.2d 963 (2001).
n3 People v. Lilly, 71 A.D.2d 393, 422 N.Y.S.2d 976 (4th Dep't 1979); Molock v. Dorchester County Family YMCA, Inc., 139 Md. App.
664, 779 A.2d 963 (2001); Gribble v. Gribble, 583 P.2d 64, 1 A.L.R.4th 1263 (Utah 1978); State ex rel. Gilroy v. Superior Court for King
County, 37 Wash. 2d 926, 226 P.2d 882 (1951).
n4 Bodwell v. Brooks, 141 N.H. 508, 686 A.2d 1179 (1996); Wilson v. Wilson, 14 Ohio App. 2d 148, 43 Ohio Op. 2d 340, 237 N.E.2d 421
(8th Dist. Cuyahoga County 1968).
Page 19
n5 V.C. v. M.J.B., 319 N.J. Super. 103, 725 A.2d 13 (App. Div. 1999), aff'd, 163 N.J. 200, 748 A.2d 539, 80 A.L.R.5th 663 (2000), cert. de-
nied, 531 U.S. 926, 121 S. Ct. 302, 148 L. Ed. 2d 243 (2000); Austin v. Austin, 147 Neb. 109, 22 N.W.2d 560 (1946); Rutkowski v. Wasko,
286 A.D. 327, 143 N.Y.S.2d 1 (3d Dep't 1955).
n6 In re Adoption of Cheney, 244 Iowa 1180, 59 N.W.2d 685 (1953); Britt v. Allred, 199 Miss. 786, 25 So. 2d 711 (1946); Hamilton v. Fos-
ter, 260 Neb. 887, 620 N.W.2d 103 (2000); T.B. v. L.R.M., 786 A.2d 913 (Pa. 2001); Hollis v. Thomas, 42 Tenn. App. 407, 303 S.W.2d 751
(1957).
n7 Turner v. Children's Home Soc. of Virginia, 158 Va. 406, 163 S.E. 399, 80 A.L.R. 1125 (1932).
n8 In re Harris, 16 Ariz. 1, 140 P. 825 (1914); Howard v. Randolph, 134 Ga. 691, 68 S.E. 586 (1910); Faber v. Industrial Commission, 352
Ill. 115, 185 N.E. 255 (1933); Foreman v. Henry, 87 Okla. 272, 210 P. 1026 (1922); Taylor v. Taylor, 58 Wash. 2d 510, 364 P.2d 444
(1961).
Although support of a child ordinarily is a parental obligation, other persons standing in loco parentis may acquire a duty to support the
child. Price v. Howard, 346 N.C. 68, 484 S.E.2d 528 (1997).
n9 U.S. v. Floyd, 81 F.3d 1517 (10th Cir. 1996) (applying Oklahoma law); Chestnut v. Chestnut, 247 S.C. 332, 147 S.E.2d 269 (1966); Har-
mon v. Department of Social and Health Services, State of Wash., 134 Wash. 2d 523, 951 P.2d 770 (1998).
n10 Hamilton v. Foster, 260 Neb. 887, 620 N.W.2d 103 (2000); Chestnut v. Chestnut, 247 S.C. 332, 147 S.E.2d 269 (1966); Harmon v. De-
partment of Social and Health Services, State of Wash., 134 Wash. 2d 523, 951 P.2d 770 (1998).
n11 Hamilton v. Foster, 260 Neb. 887, 620 N.W.2d 103 (2000).
n12 Hamilton v. Foster, 260 Neb. 887, 620 N.W.2d 103 (2000).
SUPPLEMENT:
Cases
Evidence supported finding that non-relative custodians of children waived their superior right to permanent custody as
de facto custodians; during initial custody trial custodians stated that they had no desire to keep children permanently,
and that their intention was to give the children back to their mother when she became fit, at rehearing on remand custo-
dians reaffirmed their earlier testimony, and stated they wanted custody only "for right now" and they hoped to return
the children to their mother in the future. Allen v. Devine, 2007 WL 1519044 (Ky. Ct. App. 2007).
A nonparent may obtain a parental interest in a child. MCA 40-4-228. Snyder v. Spaulding, 2010 MT 151, 235 P.3d 578
(Mont. 2010).
For a person to be a psychological parent, the relationship between the person and the child must be of substantial, not
temporary, duration and must have begun with the consent and encouragement of the child's legal parent or guardian. In
re Carey L.B., 708 S.E.2d 461 (W. Va. 2009).
REFERENCE: West's Key Number Digest, Child Custody [westkey]272, 274 to 289
West's Key Number Digest, Child Support [westkey]29 to 31
West's Key Number Digest, Parent and Child [westkey]1, 2.5, 14, 15
Social worker malpractice for failure to protect foster children, 41 Am. Jur. Trials 1 § 2.9
West's Key Number Digest, Child Custody [westkey]274
West's Key Number Digest, Child Support [westkey]31
Parent's right to recover for loss of consortium in connection with injury to child, 54 A.L.R. 4th 112 § 11.
Loco parentis status, 28 Am. Jur. Proof of Facts 2d 545.
Page 20
Page 21
11 of 145 DOCUMENTS

Parent and Child

§ 10 Right to punish
It is said that one in loco parentis can punish to the same extent as a parent, n1 though other courts take the view that one
standing merely in loco parentis does not have the same latitude of discretion in punishing a child as the natural parent
would have. n2 Generally, one standing in loco parentis has the right to punish a child under his care if the punishment is
moderate and reasonable and for the welfare of the child, n3 but does not havce the right to inflict cruel and unreasonable
punishment. n4
FOOTNOTES:
n1 Carpenter v. Com., 186 Va. 851, 44 S.E.2d 419 (1947).
As to the right of a parent to discipline a child, see § 25.
n2 Steber v. Norris, 188 Wis. 366, 206 N.W. 173, 43 A.L.R. 501 (1925).
n3 Rowe v. Rugg, 117 Iowa 606, 91 N.W. 903 (1902); Clasen v. Pruhs, 69 Neb. 278, 95 N.W. 640 (1903); Sindle v. New York City Transit
Authority, 33 N.Y.2d 293, 352 N.Y.S.2d 183, 307 N.E.2d 245 (1973); Steber v. Norris, 188 Wis. 366, 206 N.W. 173, 43 A.L.R. 501 (1925);
State v. Spiegel, 39 Wyo. 309, 270 P. 1064, 64 A.L.R. 289 (1928).
n4 Clasen v. Pruhs, 69 Neb. 278, 95 N.W. 640 (1903); Steber v. Norris, 188 Wis. 366, 206 N.W. 173, 43 A.L.R. 501 (1925).
West's Key Number Digest, Parent and Child [westkey]2.5, 15
Liability of parent or person in loco parentis for personal tort against minor child, 19 A.L.R. 2d 423 § 5.
Page 22
12 of 145 DOCUMENTS

Parent and Child

§ 11 Foster parents
An agreement between a children's welfare agency and a family that the latter shall take and care for a child until the
agency wishes its return merely entitles the family to share with the agency the relation of parent to the child, and the
family's right may be terminated at any time by the agency. n1 However, the fact that a child is placed with foster parents
by an agency which provides financial assistance for the support of the child may weigh against a finding that the foster
parents stand in loco parentis. n2 A foster parent, to whom responsibility is delegated by a county welfare department
which holds legal custody, stands in loco parentis. n3
Foster parents have standing to assert the claim that they have a constitutionally protected liberty interest in the integrity
of their family unit, and they also have standing to raise the rights of the foster children in their attack on state proce-
dures, even where court-appointed counsel represents the children. n4 Foster parents have likewise been held to have
standing to institute or to intervene in independent proceedings to terminate parental rights, n5 though there is authority
to the contrary. n6
A statute imposing strict liability on "parents" for the intentional acts of a child does not apply to foster parents. n7
FOOTNOTES:
n1 Rosky v. Schmitz, 110 Wash. 547, 188 P. 493, 10 A.L.R. 133 (1920).
n2 D'Auria v. Liposky, 197 Pa. Super. 271, 177 A.2d 133 (1962).
n3 In re Diana P., 120 N.H. 791, 424 A.2d 178, 21 A.L.R.4th 522 (1980); Goller v. White, 20 Wis. 2d 402, 122 N.W.2d 193 (1963).
n4 Smith v. Organization of Foster Families For Equality and Reform, 431 U.S. 816, 97 S. Ct. 2094, 53 L. Ed. 2d 14 (1977).
n5 D. Y. F. S. v. D. T., 171 N.J. Super. 520, 410 A.2d 79 (Juv. & Dom. Rel. Ct. 1979); In re Diana P., 120 N.H. 791, 424 A.2d 178, 21
A.L.R.4th 522 (1980); Harris County Child Welfare Unit v. Caloudas, 590 S.W.2d 596 (Tex. Civ. App. Houston 1st Dist. 1979).
n6 Matter of Kimberly J., 191 A.D.2d 984, 595 N.Y.S.2d 146 (4th Dep't 1993); In re Juvenile Appeal, 188 Conn. 259, 449 A.2d 165 (1982);
In Interest of V.F., 490 N.W.2d 87 (Iowa Ct. App. 1992); Smith v. Wilson, 269 S.W.2d 255 (Ky. 1954); Mendez v. Brewer, 626 S.W.2d 498
(Tex. 1982).
n7 Kerins v. Lima, 425 Mass. 108, 680 N.E.2d 32 (1997).
As to the liability of a parent for the conduct of his child, see §§ 96 to 104.
SUPPLEMENT:
Page 23
Research References
West's Key Number Digest, Jury [westkey]10, 19.5
A.L.R. Index: Abuse of Persons
A.L.R. Index: Jury and Jury Trial
A.L.R. Index: Juvenile Courts and Delinquent Children
A.L.R. Index: Neglect of Child
A.L.R. Index: Termination of Parental Rights
A.L.R. Digest: Jury §§ 5, 23
A.L.R. Digest: Juvenile Delinquents and Dependents §§ 2, 9
C.J.S., Juries §§ 12, 14, 21, 22, 29, 30, 45, 122
C.J.S., Parent and Child § 38
Defense in Proceeding for Termination of Parental Rights on Ground of Mental Disability, 46 Am. Jur. Proof of Facts
3d 231
Grounds for Termination of Parental Rights, 32 Am. Jur. Proof of Facts 3d 83
Relinquishment of Parental Claim to Child -- Adoption Proceedings, 10 Am. Jur. Proof of Facts 2d 635
Undue Influence in Obtaining Parent's Consent to Adoption of Child, 8 Am. Jur. Proof of Facts 2d 481
Failure to Report Suspected Case of Child Abuse, 6 Am. Jur. Proof of Facts 2d 345
Child Neglect, 3 Am. Jur. Proof of Facts 2d 265
Child Abuse -- The Battered Child Syndrome, 2 Am. Jur. Proof of Facts 2d 365
Professional Liability for Failure to Report Child Abuse, 38 Am. Jur. Trials 1
Child Custody Litigation, 22 Am. Jur. Trials 347
Juvenile Court Proceedings, 14 Am. Jur. Trials 619
15A Am. Jur. Pleading and Practice Forms, Jury §§ 20, 21
15A Am. Jur. Pleading and Practice Forms, Juvenile Courts and Delinquent and Dependent Children §§ 57 to 61
19 Am. Jur. Pleading and Practice Forms, Parent and Child §§ 121 to 135
Cases
Page 24
Foster care providers may avoid liability for their uninsured wards' driving accidents simply by declining to sign their
wards' driver's license applications and withholding permission to drive. In re Corrine W., 45 Cal. 4th 522, 87 Cal. Rptr.
3d 691, 198 P.3d 1102 (2009).
Child's foster parents had standing to file motion to intervene in permanency proceedings, even though they were "for-
mer" foster parents by the time circuit court considered their motion after permanency hearing was held; foster parents
filed motion to intervene three days prior to the permanency proceedings, and they were the physical custodians of child
until she was removed from their foster care pursuant to the permanency proceedings. West's Ann.W.Va.Code, 49-6-
5a(c). Kristopher O. v. Mazzone, 706 S.E.2d 381 (W. Va. 2011).
Standing of foster parent to seek termination of rights of foster child's natural parents, 21 A.L.R. 4th 535.
Social worker malpractice for failure to protect foster children, 41 Am. Jur. Trials 1 § 2.9 (actions by foster parents).
Page 25
13 of 145 DOCUMENTS

Parent and Child

§ 12 Stepparents
A stepparent naturally takes on a family relationship with children of a spouse and becomes part of the integrated family
unit. n1 The relationship of stepparent and stepchild does not, of itself, confer any rights or impose any duties. n2 The
mere remarriage of a child's mother does not impose any support obligation on her new husband, n3 nor relieve the father
of his previous duty of support. n4 Any contribution of the stepparent to the stepchild is voluntary, and he can withdraw
his support at any time. n5 The stepfather of an illegitimate child is under no obligation to support it, n6 though he may be
where the circumstances justify the conclusion that he stands in loco parentis to the child. n7
According to some cases, a stepparent who voluntarily receives the child into his family and treats it as a member
thereof places himself in loco parentis, n8 though according to others, notwithstanding the children may be taken into the
stepparent's house, there is no presumption that support of them is gratuitous. n9 A stepfather who furnishes bed and
board for a minor child and who exercises some control over him does not, by those acts alone, establish a parental rela-
tionship; the stepfather must intend to take the place of the natural parent, not only in providing support, but also in edu-
cating and instructing the child and caring for its general welfare. n10 The question is primarily one of intention, n11 to be
determined in the light of the circumstances peculiar to each case. n12
A stepparent who places himself in loco parentis assumes an obligation to support the child and acquires a correlative
right to its services. n13
Some jurisdictions impose on stepparents a duty to support based solely on the steprelationship. n14
An ex-stepparent has no duty to support a stepchild after divorce unless he chooses to maintain an in loco parentis rela-
tionship. n15
FOOTNOTES:
n1 Tibor v. Tibor, 1999 ND 150, 598 N.W.2d 480 (N.D. 1999).
n2 Weinand v. Weinand, 260 Neb. 146, 616 N.W.2d 1 (2000); Sargent v. Foland, 104 Or. 296, 207 P. 349 (1922); Gribble v. Gribble, 583
P.2d 64, 1 A.L.R.4th 1263 (Utah 1978); In re Smith's Estate, 49 Wash. 2d 229, 299 P.2d 550, 63 A.L.R.2d 299 (1956).
n3 Brummitt v. Com., 357 S.W.2d 37 (Ky. 1962); Commonwealth ex rel. Stack v. Stack, 141 Pa. Super. 147, 15 A.2d 76 (1940); Niesen v.
Niesen, 38 Wis. 2d 599, 157 N.W.2d 660, 32 A.L.R.3d 1047 (1968).
A stepparent cannot be considered a natural parent against the stepparent's will and cannot be forced to provide child support for minor
stepchildren after a divorce. D.G. v. D.M.K., 1996 SD 144, 557 N.W.2d 235 (S.D. 1996).
Page 26
n4 Jackman v. Short, 165 Or. 626, 109 P.2d 860, 133 A.L.R. 887 (1941); Commonwealth ex rel. Stack v. Stack, 141 Pa. Super. 147, 15
A.2d 76 (1940); Owen v. Watson, 157 Tenn. 352, 8 S.W.2d 484 (1928); Niesen v. Niesen, 38 Wis. 2d 599, 157 N.W.2d 660, 32 A.L.R.3d
1047 (1968).
n5 Zeller v. Zeller, 195 Kan. 452, 407 P.2d 478 (1965).
n6 Bunker v. Mains, 139 Me. 231, 28 A.2d 734 (1942); Parker v. Nothomb, 65 Neb. 308, 93 N.W. 851 (1903).
n7 Weinand v. Weinand, 260 Neb. 146, 616 N.W.2d 1 (2000); Gustin v. Gustin, 108 Ohio App. 171, 9 Ohio Op. 2d 204, 161 N.E.2d 68 (2d
Dist. Montgomery County 1958); Taylor v. Taylor, 58 Wash. 2d 510, 364 P.2d 444 (1961).
As to the in loco parentis relationship, generally, see § 9.
n8 In re Herron, 212 N.W.2d 474 (Iowa 1973); Brummitt v. Com., 357 S.W.2d 37 (Ky. 1962).
n9 Commonwealth ex rel. Stack v. Stack, 141 Pa. Super. 147, 15 A.2d 76 (1940).
n10 Rutkowski v. Wasko, 286 A.D. 327, 143 N.Y.S.2d 1 (3d Dep't 1955); Appeal of Fowler, 130 Vt. 176, 288 A.2d 463 (1972).
n11 In re Harris, 16 Ariz. 1, 140 P. 825 (1914); Appeal of Fowler, 130 Vt. 176, 288 A.2d 463 (1972); McManus v. Hinney, 35 Wis. 2d 433,
151 N.W.2d 44 (1967).
n12 London Guarantee & Acc. Co. v. Smith, 242 Minn. 211, 64 N.W.2d 781 (1954); Appeal of Fowler, 130 Vt. 176, 288 A.2d 463 (1972);
Doughty v. Thornton, 151 Va. 785, 145 S.E. 249 (1928).
n13 Weedin v. Mon Hin, 4 F.2d 533 (C.C.A. 9th Cir. 1925); In re Harris, 16 Ariz. 1, 140 P. 825 (1914); Wood v. Wood, 166 Ga. 519, 143
S.E. 770 (1928); Brummitt v. Com., 357 S.W.2d 37 (Ky. 1962); Inhabitants of Guilford v. Inhabitants of Monson, 134 Me. 261, 185 A. 517
(1936); Fischer v. Fischer, 106 Neb. 477, 184 N.W. 116, 21 A.L.R. 306 (1921); Sargent v. Foland, 104 Or. 296, 207 P. 349 (1922); Com-
monwealth ex rel. Stack v. Stack, 141 Pa. Super. 147, 15 A.2d 76 (1940); First Nat. Bank v. Davis, 5 S.W.2d 753 (Tex. Comm'n App. 1928);
Doughty v. Thornton, 151 Va. 785, 145 S.E. 249 (1928); Magnuson v. O'Dea, 75 Wash. 574, 135 P. 640 (1913); State v. Constable, 90 W.
Va. 515, 112 S.E. 410 (1922); In re Turer's Estate, 27 Wis. 2d 196, 133 N.W.2d 765 (1965).
n14 Chapin v. Superior Court In and For Kern County, 239 Cal. App. 2d 851, 49 Cal. Rptr. 199 (5th Dist. 1966); Department of Welfare of
City of New York v. Siebel, 6 N.Y.2d 536, 190 N.Y.S.2d 683, 161 N.E.2d 1 (1959); Washington Statewide Organization of Stepparents v.
Smith, 85 Wash. 2d 564, 536 P.2d 1202, 75 A.L.R.3d 1119 (1975).
A stepparent may be liable for the support of his stepchildren only if it is shown that they are, or are likely to become, public charges. Baird
v. Baird, 45 A.D.2d 930, 357 N.Y.S.2d 327 (4th Dep't 1974).
n15 Cavanaugh v. deBaudiniere, 1 Neb. App. 204, 493 N.W.2d 197 (1992).
Stepparent's postdivorce duty to support stepchild, 44 A.L.R. 4th 520.
Validity, construction, and application of statute imposing upon stepparent obligation to support child, 75 A.L.R. 3d
1129.
Liability of mother's husband, not the father of her illegitimate child, for its support, 90 A.L.R. 2d 583 § 2.
Page 27
14 of 145 DOCUMENTS

Parent and Child

§ 13 Grandparents
Grandparents, as such, do not stand in loco parentis, n1 though an in loco parentis relationship may be shown by the facts
of a particular case. n2 When a grandparent assumes to act in loco parentis, the reciprocal rights and obligations of par-
enthood apply. n3
Parent-child supervisorial liability for minor children does not extend to persons such as grandparents who do not have
legal custody of the minor. n4
FOOTNOTES:
n1 Sutton v. Menges, 186 Va. 805, 44 S.E.2d 414 (1947).
n2 Austin v. Austin, 147 Neb. 109, 22 N.W.2d 560 (1946).
n3 Orr v. State, 70 Ind. App. 242, 123 N.E. 470 (Div. 2 1919).
As to grandparents' visitation rights, see 24A Am. Jur. 2d, Divorce and Separation § 977.
n4 Allstate Ins. Co. v. Mocaby, 133 Idaho 593, 990 P.2d 1204 (1999).
SUPPLEMENT:
Cases
Maternal grandfather and step-grandmother were not de facto custodians of children, for the purpose of child custody
proceeding involving non-relative custodians of children; grandfather and step-grandmother provided care for the chil-
dren after court order granted them temporary, and then permanent custody of the children, and de facto custodian
statute provided that any period of time after a legal proceeding was commenced to regain custody would not be in-
cluded in determining whether the child had resided with the person for the required minimum period. Allen v. Devine,
2007 WL 1519044 (Ky. Ct. App. 2007).
Record did not support a determination that mother's nude photographs had a detrimental effect on child, and thus the
photographs did not support a determination that mother was an unsuitable parent and, accordingly, did not support an
award of custody to parental grandparents, even though the photographs, which were stored on a computer that child
could potentially access, demonstrated that mother exercised poor judgment in a certain year; there was no competent
and credible evidence in the record demonstrating that child suffered any actual, direct harm from the existence of the
photographs. R.C. § 2151.23(A)(2). In re B.P., 191 Ohio App. 3d 518, 2010-Ohio-6458, 946 N.E.2d 818 (4th Dist.
Adams County 2010).
Page 28
West's Key Number Digest, Child Custody [westkey]275 to 289
Page 29
15 of 145 DOCUMENTS

Parent and Child

II. Creation and Termination of Relationship
§ 14 Generally
As to a parent, the assumption of the parental relationship is largely a question of intention which should not lightly or
hastily be inferred. n2 The establishment of the parent-child relationship is the most fundamental right a child possesses,
to be equated in importance with the most basic constitutional rights. n3
There are two classes of parents in the eyes of the law: natural parents and adopting parents. n4 The relation of parent and
child may exist as a natural fact, but not as a legal relationship, or vice versa. n5 Though conception and birth create the
natural relation, the legal relationship may come into existence by operation of law. n6 The effect of an adoption is to es-
tablish the legal relation of parent and child with all the incidents and consequences of that relation between the adopt-
ing parents and the adopted child. n7
FOOTNOTES:
n1 U.P.A. § 102(15).
n2 Weinand v. Weinand, 260 Neb. 146, 616 N.W.2d 1 (2000).
n3 Hall v. Lalli, 194 Ariz. 54, 977 P.2d 776 (1999).
n4 Commonwealth v. Kirk, 212 Ky. 646, 279 S.W. 1091, 44 A.L.R. 816 (1926).
n5 Alexander v. Samuels, 1936 OK 260, 177 Okla. 323, 58 P.2d 878, 105 A.L.R. 1171 (1936).
n6 Alexander v. Samuels, 1936 OK 260, 177 Okla. 323, 58 P.2d 878, 105 A.L.R. 1171 (1936).
n7 2 Am. Jur. 2d, Adoption § 178.
SUPPLEMENT:
Cases
Husband was the presumed father of a child who was conceived and born while the mother lived with her boyfriend
several years after she separated from her husband. Code 1975, § 26-17-5(a)(1). C.Y.M. v. P.E.K., 776 So. 2d 817 (Ala.
Civ. App. 2000).
Page 30
Mother's former husband was not entitled to the presumption of legitimacy in proceeding to establish second husband's
paternity, where undisputed test results excluded former husband as child's biological father and established a 99.96%
probability that second husband was the biological father. 19-A M.R.S.A. §§ 1561, subd. 1, par. B, 1564; Rules of
Evid., Rule 302. Stitham v. Henderson, 2001 ME 52, 768 A.2d 598 (Me. 2001).
REFERENCE: Model Juvenile Court Act §§ 47(a), 49

Uniform Parentage Act §§ 102(15), 201, 203, 204, 702 to 706, 801 et seq.
231
19 Am. Jur. Pleading and Practice Forms, Parent and Child § 123
Definition: The "parent-child relationship" means the legal relationship between a child and a parent of the child,
and includes the mother-child relationship and the father-child relationship. n1
Parents' Mental Illness or Mental Deficiency as Ground for Termination of Parental Rights -- Issues Concerning Reha-
bilitative and Reunification Services, 12 A.L.R.6th 417
3d 231
Am. Jur. Legal Forms 2d, Adoption § 9:14
1A Am. Jur. Pleading and Practice Forms, Adoption §§ 63 to 65, 68 to 71
Garcia, Termination of Parental Rights of the Mentally Ill: An Analysis of Washington Law, 37 Gonz. L.Rev. 489
(2002)
Harding, Involuntary Termination Of Parental Rights: Reform Is Needed, 39 Brandeis L.J. 895 (2001)
Kerr, The Application of The Americans with Disabilities Act to the Termination of the Parental Rights of Individuals
with Mental Disabilities, 16 J. Contemp. Health L. & Pol'y 387 (2000)
Page 31
16 of 145 DOCUMENTS

Parent and Child

§ 15 Creation of relationship
Under the Uniform Parentage Act, the parent-child relationship can be established by giving birth to the child (unless
the birth occurs pursuant to a gestational agreement), an unrebutted presumption of paternity, adjudication of maternity
or paternity, adoption of the child, acknowledgement of paternity by the father, or a man's having consented to assisted
reproduction by his wife. n1 Unless parental rights are terminated, a parent-child relationship applies for all purposes, ex-
cept as otherwise specifically provided by other law of the state. n2
A donor is not a parent of a child conceived by means of assisted reproduction. n3 If a husband provides sperm for, or
consents to, assisted reproduction by his wife, he is the father of a resulting child. n4 A child conceived through artificial
insemination is a legitimate child of the married woman who carries the child and her husband, even if the sperm donor
is someone other than her husband. n5 A married woman may be barred or estopped from contesting the paternity of her
husband with respect to a child born to her by artificial insemination during their marriage. n6 Consent by a married
woman to assisted reproduction must be in a record signed by the woman and her husband, though this requirement
does not apply to the donation of eggs by a married woman for assisted reproduction by another. n7 The failure of the
husband to sign a consent before or after birth of the child does not preclude a finding that the husband is the father of a
child born to his wife if the wife and husband openly treat the child as their own. n8
If a marriage is dissolved before the placement of eggs, sperm, or embryos, the former spouse is not a parent of the re-
sulting child unless the former spouse consented in a record that if assisted reproduction were to occur after a divorce,
the former spouse would be a parent of the child. n9 The consent of a former spouse to assisted reproduction may be
withdrawn by that individual in a record at any time before the placement of eggs, sperm, or embryos. n10
Paternity may be challenged by the husband of a wife who gives birth to a child by means of assisted reproduction
within two years after learning of the birth of the child, if the husband did not consent to the assisted reproduction. n11
Such husband may adjudicate paternity at any time if he did not provide sperm for or consent to the assisted reproduc-
tion, or if the husband and mother of the child have not cohabited since the time of the assisted reproduction, or if the
husband never openly treated the child as his own. n12
Under a gestational agreement, the prospective gestational mother, her husband if she is married, and the donors relin-
quish all rights and duties as the parents of a child conceived through assisted reproduction, and the intended parents be-
come the parents of the child. n13
Sometimes, a man who is not the biological or adoptive father of a child, but who was the husband or cohabitant of the
mother, seeks to assert parental rights as to the child. Some ex-husbands have been able to maintain custody rights over
a child who was not biologically theirs by virtue of being considered in loco parentis, or of being considered a psycho-
logical parent, n14 though in other cases, husbands or cohabitants have failed to establish their parental rights under such
theories. n15 Husbands who believe that the child is theirs achieved recognition of their parental rights in many, n16 though
not all n17 cases. Husbands who know or at least suspect that they are not the father often succeed in their assertion of
parental rights. n18
Page 32
FOOTNOTES:
n1 U.P.A. § 201.
As to gestational agreements, see U.P.A. §§ 801 et seq.
As to the presumption of paternity in the context of marriage, see U.P.A. § 204.
n2 U.P.A. § 203.
n3 U.P.A. § 702.
n4 U.P.A. § 703.
n5 People v. Sorensen, 68 Cal. 2d 280, 66 Cal. Rptr. 7, 437 P.2d 495, 25 A.L.R.3d 1093 (1968); In re Adoption of Anonymous, 74 Misc. 2d
99, 345 N.Y.S.2d 430 (Sur. Ct. 1973).
n6 State ex rel. H. v. P., 90 A.D.2d 434, 457 N.Y.S.2d 488 (1st Dep't 1982); Brooks v. Fair, 40 Ohio App. 3d 202, 532 N.E.2d 208 (3d Dist.
Van Wert County 1988).
n7 U.P.A. § 704(a).
n8 U.P.A. § 704(b).
n9 U.P.A. § 706(a).
n10 U.P.A. § 706(b).
n11 U.P.A. § 705(a).
n12 U.P.A. § 705(b).
n13 U.P.A. § 801(a).
n14 In re Marriage of Slayton, 292 Ill. App. 3d 379, 226 Ill. Dec. 583, 685 N.E.2d 1038 (4th Dist. 1997); Matter of Marriage of Ross, 13
Kan. App. 2d 402, 772 P.2d 278 (1989), review granted, (June 6, 1989) and judgment aff'd in part, rev'd in part on other grounds, 245 Kan.
591, 783 P.2d 331 (1989); Monroe v. Monroe, 329 Md. 758, 621 A.2d 898 (1993); Nelson v. Nelson, 10 Ohio App. 3d 36, 460 N.E.2d 653
(10th Dist. Franklin County 1983); In re Marriage of Sleeper, 328 Or. 504, 982 P.2d 1126 (1999).
n15 In re Marriage of Halpern, 133 Cal. App. 3d 297, 184 Cal. Rptr. 740 (2d Dist. 1982); Temple v. Meyer, 208 Conn. 404, 544 A.2d 629
(1988); Hirczy v. Hirczy, 838 S.W.2d 783 (Tex. App. Corpus Christi 1992), reh'g overruled, (Oct. 8, 1992) and writ denied, (Mar. 24, 1993)
and reh'g of writ of error overruled, (May 5, 1993); In re Custody of Dombrowski, 41 Wash. App. 753, 705 P.2d 1218 (Div. 1 1985).
n16 Ettore I. v. Angela D., 127 A.D.2d 6, 513 N.Y.S.2d 733 (2d Dep't 1987); Ex parte Presse, 554 So. 2d 406 (Ala. 1989); W.C. in Interest
of A.M.K., 907 P.2d 719 (Colo. Ct. App. 1995); Matter of Marriage of Ross, 13 Kan. App. 2d 402, 772 P.2d 278 (1989), review granted,
(June 6, 1989) and judgment aff'd in part, rev'd in part on other grounds, 245 Kan. 591, 783 P.2d 331 (1989); Atkinson v. Atkinson, 160
Mich. App. 601, 408 N.W.2d 516, 84 A.L.R.4th 643 (1987); Matter of Marriage of A., 41 Or. App. 679, 598 P.2d 1258 (1979); John M. v.
Paula T., 524 Pa. 306, 571 A.2d 1380, 87 A.L.R.4th 555 (1990); McDaniels v. Carlson, 108 Wash. 2d 299, 738 P.2d 254 (1987).
n17 In re Melissa G., 213 Cal. App. 3d 1082, 261 Cal. Rptr. 894 (6th Dist. 1989).
n18 Gilbert A. v. Laura A., 261 A.D.2d 886, 689 N.Y.S.2d 810 (4th Dep't 1999); State ex rel. Hight v. Marion Superior Court, 547 N.E.2d
267 (Ind. 1989); Nelson v. Nelson, 10 Ohio App. 3d 36, 460 N.E.2d 653 (10th Dist. Franklin County 1983); Banta v. Banta, 1989 OK CIV
APP 73, 782 P.2d 946 (Okla. Ct. App. Div. 1 1989); In re Paternity of D.L.H., 142 Wis. 2d 606, 419 N.W.2d 283 (Ct. App. 1987).
Page 33
SUPPLEMENT:
Uniform Laws
Uniform Parentage Act § 201(b)(5), as amended in 2002, substituted "a woman" for "his wife." Uniform Parentage Act
§ 705(b), as amended, substitutes "if the husband never openly held out the child as his own" for "if the husband never
openly treated the child as his own."
Uniform Parentage Act § 703, as amended in 2002, provides that a man who provides sperm for, or consents to, assisted
reproduction by a woman as provided in Uniform Parentage Act § 704 with the intent to be the parent of her child is a
parent of the resulting child.
Uniform Parentage Act § 704, as amended in 2002, provides that (a) consent by a woman, and a man who intends to be
a parent of a child born to the woman by assisted reproduction must be in a record signed by the woman and the man;
this requirement does not apply to a donor; and (b) failure of a man to sign such a consent, before or after birth of the
child, does not preclude a finding of paternity if the woman and the man, during the first two years of the child's life,
resided together in the same household with the child and openly held out the child as their own.
Uniform Parentage Act § 706, as amended in 2002, provides that (a) if a marriage is dissolved before placement of
eggs, sperm, or embryos, the former spouse is not a parent of the resulting child unless the former spouse consented in a
record that if assisted reproduction were to occur after a divorce, the former spouse would be a parent of the child; and
(b) the consent of a woman or a man to assisted reproduction may be withdrawn by that individual in a record at any
time before placement of eggs, sperm, or embryos; an individual who withdraws such consent is not a parent of the re-
sulting child.
Cases
Husband was the presumed father of a child who was conceived and born while the mother lived with her boyfriend
several years after she separated from her husband. Code 1975, § 26-17-5(a)(1). C.Y.M. v. P.E.K., 776 So. 2d 817 (Ala.
Civ. App. 2000).
Mother's former husband was not entitled to the presumption of legitimacy in proceeding to establish second husband's
paternity, where undisputed test results excluded former husband as child's biological father and established a 99.96%
probability that second husband was the biological father. 19-A M.R.S.A. §§ 1561, subd. 1, par. B, 1564; Rules of
Evid., Rule 302. Stitham v. Henderson, 2001 ME 52, 768 A.2d 598 (Me. 2001).
No public policy of Ohio is violated when a gestational-surrogacy contract is entered into, even when one of the provi-
sions prohibits the gestational surrogate from asserting parental rights regarding children she bears that are of another
woman's artificially inseminated egg. J.F. v. D.B., 116 Ohio St. 3d 363, 2007-Ohio-6750, 879 N.E.2d 740 (2007).

231
Parental rights of man who is not biological or adoptive father of child but was husband or cohabitant of mother when
child was conceived or born, 84 A.L.R. 4th 655.
Rights and obligations resulting from human artificial insemination, 83 A.L.R. 4th 295.
Page 34
17 of 145 DOCUMENTS

Parent and Child

§ 16 Termination of relationship
Petition or application -- To terminate parental rights of incompetent parent -- By state agency and foster parents 19
Am. Jur. Pleading and Practice Forms, Parent and Child § 123
The relationship of parent and child can be terminated by court order, for the protection of the child, when the condi-
tions specified by the relevant statute are found to exist. n1
Grounds for termination of the parent-child relationship include:

.neglect of the child n2
.deprivation suffered by the child at the parent's hands n3
.untreated substance abuse of the parent n4
.emotional illness, mental illness, or mental deficiency of the parent n5
.abandonment n6
.sexual assault by the father upon the child's mother, resulting in the birth of the child n7
On the other hand, evidence that a mother gave her first child up for adoption is insufficient to show a probability of
repetition of neglect of her second child sufficient to support a termination of her parental rights in the second child. n8
Under the Model Juvenile Court Act, a court may terminate the parental rights of a parent if the parent has abandoned
the child, if the court finds that the child is deprived, or if the parent consents to such termination. n9 An order terminat-
ing the parental rights of a parent terminates all his rights and obligations with respect to the child and of the child to
him arising from the parental relationship. The parent is not thereafter entitled to notice of proceedings for the adoption
of the child by another nor has he any right to object to the adoption or otherwise to participate in the proceedings. n10
FOOTNOTES:
n1 Michael J. v. Arizona Dept. of Economic Sec., 196 Ariz. 246, 995 P.2d 682 (2000) (abandonment); In re Sheneal W. Jr., 45 Conn. Supp.
586, 728 A.2d 544 (Super. Ct. Juv. Matters 1999); In Interest of Morrison, 259 Iowa 301, 144 N.W.2d 97 (1966); In re Sours, 459 Mich.
624, 593 N.W.2d 520 (1999); State v. McMaster, 259 Or. 291, 486 P.2d 567 (1971).
As to the loss or forfeiture of right of custody, see § 36.
n2 In re Ashley S., 2000 ME 212, 762 A.2d 941 (Me. 2000); Matter of Davis, 116 N.C. App. 409, 448 S.E.2d 303 (1994).
n3 In re A.N.M., 238 Ga. App. 21, 517 S.E.2d 548 (1999); In re S.F., 2000 ND 161, 615 N.W.2d 511 (N.D. 2000).
Page 35
n4 Matter of Appeal in Maricopa County Juvenile Action No. JS-501568, 177 Ariz. 571, 869 P.2d 1224 (Ct. App. Div. 1 1994); In re Crys-
tal C., 765 A.2d 842 (R.I. 2001).
n5 In re M.M., 303 Ill. App. 3d 559, 237 Ill. Dec. 273, 709 N.E.2d 259 (2d Dist. 1999); In re Dennis P., 749 A.2d 582 (R.I. 2000); In re
W.G., 1999 SD 85, 597 N.W.2d 430 (S.D. 1999).
While a finding of mental illness, standing alone, is insufficient grounds to warrant the termination of parental rights, a mental deficiency re-
lated to parenting ability is relevant in determining the role of the mother in the abuse or neglect of the children. State ex rel. C.J.K., 774 So.
2d 107 (La. 2000).
n6 W.T.J. v. E.W.R., 721 So. 2d 723 (Fla. 1998).
As to what constitutes abandonment of child making the natural parent's consent unnecessary to adoption, see 2 Am. Jur. 2d, Adoption §§ 79
et seq.
n7 Matter of SueAnn A.M., 176 Wis. 2d 673, 500 N.W.2d 649 (1993).
n8 In re Young, 346 N.C. 244, 485 S.E.2d 612 (1997).
n9 M.J.C.A. § 47(a).
n10 M.J.C.A. § 49.
SUPPLEMENT:
Cases
Alleged "no parental contact" policy established by county following child's removal from home, if proven, did not
amount to "seizure" of parents, and thus did not violate parents' Fourth Amendment rights. Gedrich v. Fairfax County
Dept. of Family Services, 282 F. Supp. 2d 439 (E.D. Va. 2003).
In a termination of parental rights proceeding, the determination of whether a parent has remedied the conduct or condi-
tions that placed the child at substantial risk, by its very nature, requires not just an evaluation of objective conduct, but
also broader and more subjective considerations and judgments. AS 47.10.088(a)(2)(A). Ralph H. v. State, Dept. of
Health & Social Services, Office of Children's Services, 255 P.3d 1003 (Alaska 2011).
In a termination of parental rights case, the superior court is entitled to rely on a parent's documented history of conduct
as a predictor of future behavior. AS 47.10.088. Sean B. v. State, Dept. of Health and Social Services, 251 P.3d 330
(Alaska 2011).
Clear and convincing evidence supported conclusion that father failed to remedy his abandonment of child, for purposes
of determining whether termination of father's parental rights was warranted; father's inattentive conduct contributed to
child's behavioral problems, father's pattern of inattentive conduct was likely to continue, it was unlikely child would be
returned to father's care in a reasonable time, father's correspondence with child was limited, father's communications
with social workers and service providers were irregular, and there was no evidence suggesting that father took serious
interest in child's life beyond stating that he wanted his child back. AS 47.10.011, 47.10.013, 47.10.088(a)(1, 2), (b).
Sean B. v. State, Dept. of Health and Social Services, 251 P.3d 330 (Alaska 2011).
Termination of father's parental rights was warranted, given his role in postponing paternity testing, his incarceration
and resulting unavailability to care for children in their formative early years, and likelihood that he would not be able
to provide stable home to these special needs children even when he was released from incarceration. T.F. v. State,
Dept. of Health & Social Services, 26 P.3d 1089 (Alaska 2001).
Mother received actual notice of hearing to determine whether her parental rights to children should be terminated, de-
spite her claim that she did not receive a copy of termination petition, as trial court, at preceding hearing, while mother
was in attendance, announced that the next hearing would be to terminate her parental rights. Linker-Flores v. Arkansas
Dept. of Human Services, 364 Ark. 224, 217 S.W.3d 107 (2005).
Page 36
Termination of a natural father's parental rights, under statute authorizing termination of parental rights in the best inter-
est of the child to allow adoption when the child has been in a guardian's custody for two years, does not violate the fa-
ther's right to equal protection, since the statute does not treat natural fathers differently from mothers or presumed fa-
thers. In re Charlotte D., 45 Cal. 4th 1140, 90 Cal. Rptr. 3d 724, 202 P.3d 1109 (2009).
Statute authorizing the termination of parental rights when a probate guardianship has continued for at least two years
and the court finds that adoption by the guardian would be in the child's best interest does not violate due process on its
face, even though it does not require a finding of the parent's present unfitness, since termination of parental rights on
the basis of the best interest of the child does not always violate due process, absent evidence that parents whose chil-
dren remained in guardianship for two or more years would be entitled to insist that their unfitness be proven before ter-
mination of parental rights in the generality or great majority of cases. In re Guardianship of Ann S., 45 Cal. 4th 1110,
90 Cal. Rptr. 3d 701, 202 P.3d 1089 (2009).
Day-to-day contact is not necessarily required, to establish the beneficial parent-child relationship exception to termina-
tion of parental rights. West's Ann.Cal.Welf. & Inst.Code § 366.26(c)(1)(B)(i). In re C.F., 193 Cal. App. 4th 549, 121
Cal. Rptr. 3d 881 (4th Dist. 2011).
The California dependency system comports with federal due process requirements because the number and quality of
the judicial findings that are necessary preconditions to termination of parental rights convey very powerfully to the fact
finder the subjective certainty about parental unfitness and detriment required before the court may even consider end-
ing the relationship between natural parent and child. U.S.C.A. Const.Amend. 14; West's Ann.Cal.Welf. & Inst.Code §
300 et seq. In re Precious D., 189 Cal. App. 4th 1251, 2010 WL 4400553 (2d Dist. 2010).
Previous acts of neglect, standing alone, do not establish a substantial risk of harm, within meaning of the statutory ba-
sis for dependency jurisdiction when a child is at "substantial risk" of suffering "serious physical harm or illness" as a
result of parental failure to supervise or protect; there must be some reason beyond mere speculation to believe they will
reoccur. West's Ann.Cal.Welf. & Inst.Code § 300(b). In re J.N., 181 Cal. App. 4th 1010, 104 Cal. Rptr. 3d 478 (6th
Dist. 2010).
Choosing to continue a relationship with a person who poses a threat to the welfare of the child may prevent the parent
from providing the safe parenting necessary to meet the child's needs, thus supporting a finding of unfitness. West's
C.R.S.A. § 19-3-604(1)(c), (2). People ex rel. A.J.L., 243 P.3d 244 (Colo. 2010).
Before terminating an individual's parental rights, the Family Court must make two separate determinations; first, the
court must find, by clear and convincing evidence, that one of the statutory grounds for termination is satisfied, and sec-
ond, the court must determine that severing the parental rights is in the best interests of the child. 13 West's Del.C. §
1103. Brown v. Division of Family Services, 14 A.3d 524 (Del. 2011).
Rebuttable presumption to statute authorizing termination of parental rights when the parental rights to a sibling have
been terminated involuntarily, as outlined in A.B. v. Department of Children & Families, impermissibly shifted to par-
ents the burden to show a lack of substantial risk of harm to current child, and thus Supreme Court disapproved of use
of rebuttable presumption. West's F.S.A. § 39.806(1)(i). Florida Dept. Of Children And Families v. F.L., 880 So. 2d 602
(Fla. 2004).
In termination of parental rights proceeding, district court improperly required mother, whose parental rights to siblings
had been involuntarily terminated, to rebut presumption in favor of termination of parental rights to current child, re-
quiring remand in which state would be required to prove a substantial risk of significant harm to current child, and that
termination of rights was least restrictive means of protecting child from harm. West's F.S.A. § 39.806(1)(i). Florida
Dept. Of Children And Families v. F.L., 880 So. 2d 602 (Fla. 2004).
Parental rights may be terminated under statute authorizing termination of parental rights when the parental rights to a
sibling have been terminated involuntarily only if state proves by clear and convincing evidence a prior involuntary ter-
mination of rights to a sibling, a substantial risk of significant harm to current child, and that termination of rights is
least restrictive means of protecting child from harm; circumstances leading to prior involuntary termination will be
Page 37
highly relevant to determination of whether current child is at risk and whether termination is least restrictive way to
protect child. West's F.S.A. § 39.806(1)(i). Florida Dept. Of Children And Families v. F.L., 880 So. 2d 602 (Fla. 2004).
Because of a parent's fundamental liberty interest in the care and custody of his child, before permanently severing the
parental relationship, the state must establish that termination of parental rights is the least restrictive means of protect-
ing the child from harm; this means that Department of Children and Families (DCF) ordinarily must show that it has
made a good faith effort to rehabilitate the parent and reunite the family, such as through a current performance agree-
ment or other such plan for the present child. U.S.C.A. Const.Amend. 14. J.C. v. K.K., 64 So. 3d 157 (Fla. Dist. Ct.
App. 4th Dist. 2011).
Trial court should have considered the attempts at substantial compliance with the case plan that mother claimed to have
made before terminating her parental rights, and it was erroneous for court to find that mother abandoned her child
without first allowing for presentation of any evidence which might show mother's efforts at compliance with case plan.
L.K. v. Department of Children and Families, 62 So. 3d 1241 (Fla. Dist. Ct. App. 4th Dist. 2011).
Termination of parental rights process is not punitive in nature; rather, the goal in a termination of parental rights is to
get the child in a healthy environment and, preferably, to find adoptive parents. In re C.N., 51 So. 3d 1224 (Fla. Dist. Ct.
App. 2d Dist. 2011).
Where there is evidence that a child suffered abuse by one or both of the parents present, there is clear and convincing
evidence of egregious abuse to support termination of parental rights of both parents. In re E.R., 49 So. 3d 846 (Fla.
Dist. Ct. App. 2d Dist. 2010).
Erroneous termination of parental rights based upon finding of continuing abuse, neglect, or abandonment was harm-
less, where competent, substantial evidence supported trial court's finding that parents' continuing involvement in par-
ent-child relationship threatened child's life, safety, well-being, or physical, mental, or emotional health. West's F.S.A. §
39.806(1)(c, e). In re W.B., 915 So. 2d 761 (Fla. Dist. Ct. App. 2d Dist. 2005).
Trial court could consider father's entire period of incarceration, rather than only the period to be served after petition
for parental rights termination was filed, in applying statute authorizing termination of parental rights if the parent was
expected to be incarcerated for a substantial portion of time before the child attains the age of 18. West's F.S.A. §
39.806(1)(d)1. Department Of Children And Family Services v. B.C., 884 So. 2d 955 (Fla. Dist. Ct. App. 4th Dist.
2003), review granted, 860 So. 2d 976 (Fla. 2003) and decision quashed, 887 So. 2d 1046 (Fla. 2004).
Application of statute authorizing termination of parental rights if the parent was expected to be incarcerated for a sub-
stantial portion of time before the child attains the age of 18 warranted termination of father's parental rights; entire pe-
riod of father's incarceration was expected to be seven years and nine months, which constituted a substantial portion of
daughter's 18 years of minority. West's F.S.A. § 39.806(1)(d)1. Department Of Children And Family Services v. B.C.,
884 So. 2d 955 (Fla. Dist. Ct. App. 4th Dist. 2003), review granted, 860 So. 2d 976 (Fla. 2003) and decision quashed,
887 So. 2d 1046 (Fla. 2004).
Evidence supported finding that the children's deprivation was likely to continue, in termination of parental rights pro-
ceeding; psychologist testified that mother had not improved over the course of the two years he evaluated her and that
any child in her care was at risk of being harmed by her, mother visited the children sporadically, she favored her
younger child over her older child, she failed to obtain employment or adequate housing, and older child's therapeutic
foster parent testified that child had many special needs issues which would likely produce a stressful situation for his
caregiver. West's Ga.Code Ann. § 15-11-94(b)(4)(iii). In re R.J., 308 Ga. App. 702, 708 S.E.2d 626 (2011).
Under the two-step procedure for a termination of parental rights, there must first be a finding of parental misconduct or
inability, which requires clear and convincing evidence that (1) the child is deprived, (2) the lack of proper parental care
or control is the cause of the deprivation, (3) the cause of the deprivation is likely to continue, and (4) continued depri-
vation is likely to cause serious physical, mental, emotional, or moral harm to the child; if these four factors exist, then
the court must determine whether termination of parental rights is in the best interest of the child, considering the child's
physical, mental, emotional, and moral condition and needs, including the need for a secure, stable home. West's Ga.-
Code Ann. § 15-11-94. In re D.B., 306 Ga. App. 129, 701 S.E.2d 588 (2010).
Page 38
Termination of mother's parental rights was in child's best interest, as shown by evidence of mother's parental miscon-
duct or inability, by fact that child had been in protective custody for three years by time of termination hearing, and by
fact that child was doing well with her foster mother, who wished to adopt her. West's Ga.Code Ann. § 15-11-94. In re
R.J.D.B., 305 Ga. App. 888, 700 S.E.2d 898 (2010).
Although past deprivation of a child is not sufficient for termination of parental rights without a showing of present de-
privation, the court can consider a parent's past conduct in determining whether such conditions of deprivation are likely
to continue. In re M.M., 276 Ga. App. 211, 622 S.E.2d 892 (2005).
A termination of parental rights case involves a two-step analysis: first, there must be a finding of parental misconduct
or inability, which requires clear and convincing evidence that (1) the child is deprived, (2) the lack of proper parental
care or control is the cause of the deprivation, (3) the cause of the deprivation is likely to continue, and (4) continued
deprivation is likely to cause serious physical, mental, emotional, or moral harm to the child; if these four factors exist,
then the court must determine whether termination of parental rights is in the best interest of the child, considering the
child's physical, mental, emotional, and moral condition and needs, including the need for a secure, stable home. In re
M.M., 276 Ga. App. 211, 622 S.E.2d 892 (2005).
Mother's failure to comply with case plan, and to obtain domestic violence counseling, was sufficient to support finding
that child's continued deprivation would have detrimental effect on him, as grounds for terminating mother's parental
rights. In re M.M., 276 Ga. App. 211, 622 S.E.2d 892 (2005).
In proceeding to terminate parental rights, evidence of past conduct may properly be considered in determining whether
the deprivation to the child would likely continue. West's Ga.Code Ann. § 15-11-94(b)(4)(A). In re L.W., 276 Ga. App.
197, 622 S.E.2d 860 (2005).
In order for the State to intervene and terminate the parent-child relationship, due process requires the State to prove
that termination is in the best interest of the child, and that one of the statutorily approved grounds for terminating the
relationship are present. U.S.C.A. Const.Amend. 14. In re Doe, 151 Idaho 356, 256 P.3d 764 (2011).
Termination of mother's parental rights was in the child's best interests, where mother was unable to provide a secure,
safe, and stable home environment due to addiction to methamphetamine, child had bonded with foster parents and not
mother, and child was 22 months old and had been in foster care since the age of seven weeks. West's I.C.A. § 16-
2005(1). In re Doe 2009-19, 245 P.3d 953 (Idaho 2010).
The trial court must find that grounds for terminating parental rights have been proved by clear and convincing evi-
dence. In re Doe 2009-19, 245 P.3d 953 (Idaho 2010).
The burden of persuasion on the issue of abandonment in termination of parental rights proceedings is on the petitioner
to demonstrate that the defendant lacks a normal parental relationship with the child and that there is no just cause for
the failure to maintain such a relationship; if the petitioner is able to meet this burden, the defendant then has the burden
of production to present evidence of just cause. West's I.C.A. §§ 16-2002(5), 16-2005(a). Doe v. Doe, 244 P.3d 190
(Idaho 2010).
A finding that termination of parental rights is in the child's best interests is against the manifest weight of the evidence
only if the opposite conclusion is clearly evident. S.H.A. 705 ILCS 405/1-3. In re Joshua K., 349 Ill. Dec. 643, 947
N.E.2d 280 (App. Ct. 1st Dist. 2010).
To terminate parental rights there must first be a showing, based on clear and convincing evidence, that the parent is un-
fit, as that term is defined in the Adoption Act; upon a finding of unfitness, the trial court must then determine whether
the termination of a parent's rights is in the best interest of the minor. S.H.A. 705 ILCS 405/2-29(2); 750 ILCS 50/1(D).
In re C.E., 346 Ill. Dec. 125, 940 N.E.2d 125 (App. Ct. 1st Dist. 2010).
Page 39
While familial ties are a factor that the trial court may consider in determining whether it is in the best interests of a
child to terminate parental rights, it is not the sole or necessarily the determinative factor. S.H.A. 705 ILCS 405/1-3. In
re Joshua K., 345 Ill. Dec. 743, 939 N.E.2d 586 (App. Ct. 1st Dist. 2010).
In a termination of parental rights proceeding, the State must prove parental unfitness by clear and convincing evidence,
and the trial court's findings must be given great deference because of its superior opportunity to observe the witnesses
and evaluate their credibility. S.H.A. 750 ILCS 50/1(D). In re A.L., 409 Ill. App. 3d 492, 351 Ill. Dec. 28, 949 N.E.2d
1123 (4th Dist. 2011).
Trial court's finding that the termination of father's parental rights was in child's best interest was not against the mani-
fest weight of the evidence; child had been in her foster home since she was 10 days old, the home was safe and appro-
priate with no signs of abuse or neglect, and child considered her foster mother to be her mother and her foster brother
to be her brother. In re L.W., 383 Ill. App. 3d 1011, 323 Ill. Dec. 239, 893 N.E.2d 253 (1st Dist. 2008), appeal denied,
judgment vacated, 229 Ill. 2d 667, 323 Ill. Dec. 738, 894 N.E.2d 764 (2008).
At the best interest stage of proceedings to terminate a parent's rights, the parent's rights must yield to the best interest of
the child. In re L.W., 383 Ill. App. 3d 1011, 323 Ill. Dec. 239, 893 N.E.2d 253 (1st Dist. 2008), appeal denied, judgment
vacated, 229 Ill. 2d 667, 323 Ill. Dec. 738, 894 N.E.2d 764 (2008).
Once a child is placed in temporary custody, a trial court must make a finding of abuse, neglect or dependence before it
conducts an adjudication of wardship, and the State's burden is to prove the allegations of abuse, neglect or dependency
by a preponderance of the evidence. In re L.W., 383 Ill. App. 3d 1011, 323 Ill. Dec. 239, 893 N.E.2d 253 (1st Dist.
2008), appeal denied, judgment vacated, 229 Ill. 2d 667, 323 Ill. Dec. 738, 894 N.E.2d 764 (2008).
Although the probate court is not statutorily required to enter findings of fact in issuing a judgment involuntarily termi-
nating parental rights, in light of the serious and permanent nature of termination of parental rights proceedings, a trial
court's termination order should include the findings of fact and conclusions of law necessary to support its decision; a
judgment terminating the relationship between a parent and child is impossible to review on appeal if it is nothing more
than a mere recitation of the conclusions the governing termination statute requires the trial court to reach. West's A.I.C.
31-35-2-8. In re A.K., 924 N.E.2d 212 (Ind. Ct. App. 2010).
A petitioner who seeks to terminate a father's parental rights because the father has failed without reasonable cause to
provide support to a child's mother in the last six months of her pregnancy bears the burden of proof on all elements of
the case, including lack of reasonable cause. West's K.S.A. 59-2136(h)(1)(D). In re Adoption of B.B.M., 224 P.3d 1168
(Kan. 2010).
Termination of father's parental rights was in the best interests of his children, where father sexually molested or emo-
tionally abused the children. In re B.E.Y., 40 Kan. App. 2d 842, 196 P.3d 439 (2008).
When an appellate court reviews a trial court's determination to terminate a parent's rights, it should consider whether,
after review of all the evidence, viewed in the light most favorable to the state, it is convinced that a rational factfinder
could have found it highly probable, i.e., by clear and convincing evidence, that the parent's rights should be terminated.
In re B.E.Y., 40 Kan. App. 2d 842, 196 P.3d 439 (2008).
If the state seeks to terminate the sacrosanct relationship between parent and child, parents are entitled to fundamentally
fair procedures. A.P. v. Com., 270 S.W.3d 418 (Ky. Ct. App. 2008).
While the State has an urgent interest in a child's welfare and in providing the child with a permanent home, in the con-
text of a parental rights termination case, the State's interest must favor preservation over severance of biological famil-
ial bonds as long as there is reason to believe a positive, nurturing parent-child relationship exists. State ex rel. H.A.B.,
49 So. 3d 345 (La. 2010).
Trial court could not award father custody of child, in proceedings on petition by city department of social services to
find that child was a child in need of assistance (CINA), without first specifically finding that there was no likelihood
Page 40
that father would neglect child, since father had neglected child's siblings. In re Deontay J., 408 Md. 152, 968 A.2d
1067 (2009).
A judge has the equitable authority to order visitation between a child and a parent whose parental rights have been ter-
minated, where such visitation is in the child's best interest. In re Adoption of Ilona, 459 Mass. 53, 944 N.E.2d 115
(2011).
Father's willful absence from child's life and failure to voluntarily offer monetary support, even while child was in foster
care and even if to avoid mother, were not automatic grounds for termination of father's parental rights, but evidence of
neglect, and father was still entitled under due process principles to notice and meaningful participation in a process af-
fecting his parental rights. In re Rood, 483 Mich. 73, 763 N.W.2d 587 (2009).
Biological father of child born out of wedlock was not entitled to withdraw his relinquishment of parental rights and
consent to child's adoption, where relinquishment and consent were not procured by fraud, duress, or undue influence,
where at time father signed consent form both he and child's mother agreed to adoption of child by mother's cohabitant;
father only sought to reclaim his rights after child's maternal grandmother intervened in proceedings on cohabitant's pe-
tition to adopt child and sought to adopt child herself, and for sole purpose of again relinquishing those rights in favor of
grandmother. In re Adoption of P.B.H., 787 So. 2d 1268 (Miss. 2001).
Satisfaction of one statutory ground for termination of parental rights is sufficient to sustain the judgment. V.A.M.S. §
211.447. In re Adoption of C.M.B.R., 332 S.W.3d 793 (Mo. 2011).
Evidence supported finding that father was unfit at the time of termination of parental rights hearing, where termination
was within 14 months of the initial finding that father had sexually abused the children, evidence showed no additional
services were likely to bring about a lasting parental adjustment and family reunification, and there was no evidence that
defendant had received counseling or treatment, or had repented of or reformed his behavior. In re K.R.G., 248 S.W.3d
651 (Mo. Ct. App. S.D. 2008).
Termination of mother's parental rights did not violate public policy of state requiring protection of children in a family
environment and preservation of the unity and welfare of the family whenever possible; mother's imprisonment for her
criminal conduct already had resulted in disruption of unity of family for as much as two years, clinical psychologist
who evaluated mother predicted it would take her an additional year after her release from prison to get stabilized on
medications and undergo psychotherapy to a point where she might start to be able to parent, and children's court-ap-
pointed attorney testified it would be in children's best interests to terminate mother's parental rights. In re B.S., 2009
MT 113, 350 Mont. 132, 206 P.3d 74 (2009).
Termination of father's parental rights was warranted; trial court was informed of child's placements and placement fail-
ures in a series of foster homes and at inpatient treatment center for children with severe emotional illness, father could
not care for the children because of his incarceration, and Department of Public Health and Human Services (DPHHS)
had made reasonable efforts to avoid placement of the children or to make it possible to safely return the children to the
home. In re B.S., 2009 MT 98, 350 Mont. 86, 206 P.3d 565 (2009).
Before a court may order the termination of parental rights, the petitioning party must prove a statutory ground for ter-
mination beyond a reasonable doubt. In re Jack L., 161 N.H. 611, 20 A.3d 332 (2011).
The dominant consideration in termination proceedings is the welfare of the child, which prevails over the interests of
the parents. In re Jack L., 161 N.H. 611, 20 A.3d 332 (2011).
A trial court retains jurisdiction to terminate parental rights during the pendency of a custody order appeal in the same
case; overruling In re Hopkins, 163 N.C. App. 38, 592 S.E.2d 22, and In re J.C.S., 164 N.C. App. 96, 595 S.E.2d 155..
In re R.T.W., 359 N.C. 539, 614 S.E.2d 489 (2005).
Termination of parental rights involves a two-stage process; at the adjudicatory stage, the petitioner has the burden of
establishing by clear and convincing evidence that at least one of the statutory grounds exists, if the trial court deter-
mines that grounds for termination exist, it proceeds to the dispositional stage, and must consider whether terminating
Page 41
parental rights is in the best interests of the child. West's N.C.G.S.A. § 7B-1111. In re L.H., 708 S.E.2d 191 (N.C. Ct.
App. 2011).
In making reasonable efforts to reunite a parent with a child, the state is not required to exhaust every potential solution
before seeking termination of parental rights. NDCC 27-20-32.2(1). In re T.T., 2011 ND 111, 798 N.W.2d 678 (N.D.
2011).
In determining whether deprivation of a child is likely to continue, as grounds for terminating parental rights, a juvenile
court may consider the amount of contact the parent has had with the child. NDCC 27-20-44(1)(c)(1). In re A.B., 2010
ND 249, 792 N.W.2d 539 (N.D. 2010).
Upon a showing that a child's deprivation is likely to continue, in an action to terminate parental rights, it must be
shown that the child is suffering or will probably suffer some serious physical, mental, moral, or emotional harm.
NDCC 27-20-44(1)(c)(1). In re A.B., 2010 ND 249, 792 N.W.2d 539 (N.D. 2010).
Juvenile court's finding that the causes and conditions of child's deprivation would probably cause him to suffer serious
physical, mental, moral, or emotional harm was not clearly erroneous, in proceeding to terminate father's parental rights;
child suffered from "Adjustment Disorder with Depressed Mood," father's criminal history, drug and alcohol use, and
lack of cooperation with social services indicated that father would probably contribute to child's mental health prob-
lems, and child would likely experience serious emotional harm if he was reunited with father but was separated from
his half-sister, who was not father's child. NDCC 27-20-44(1)(c). In re D.H., 2010 ND 103, 783 N.W.2d 12 (N.D.
2010).
In proceeding to terminate parental rights, evidence must demonstrate that as a result of the continued deprivation, the
child is suffering, or will in the future probably suffer physical, mental, moral, or emotional harm. NDCC 27-20-44(1)
(c). In re K.J., 2010 ND 46, 779 N.W.2d 635 (N.D. 2010).
Substantive due process forbids termination of parental rights in the absence of a demonstration of a compelling state
interest in the form of specific findings of existing or threatened harm to the child. U.S.C.A. Const.Amend. 14. In re
BTW, 2010 OK 69, 241 P.3d 199 (Okla. 2010), as revised, (Oct. 14, 2010).
Incarcerated father was not capable of meeting the needs of his two-year old child and would be unable to do so within
a reasonable time, as required in order to terminate father's parental rights on grounds of parental incapacity, where fa-
ther was incarcerated prior to child's birth, father was in pre-release status but had not been paroled, father's maximum
sentence continued for another nine years, corrections counselor could not provide an estimated release date, father had
not in the past been successful in maintaining a home free of drugs and alcohol, though father had received disability
payments while incarcerated he made no arrangements for any of the payments to go to child's benefit, father had no vi-
able kinship care options, and father's resolve to parent the child was doubtful given father's parenting history with his
other seven children when he was not incarcerated. 23 Pa.C.S.A. § 2511(a)(2). In re Z.P., 2010 PA Super 56, 994 A.2d
1108 (2010).
Determination that father was unfit parent and that his parental rights should be terminated was clearly erroneous and
did not comport with father's due process right to have his parental unfitness proved by clear and convincing evidence;
although trial justice addressed mother's substance abuse problem, trial justice made no findings specifically relating to
father's unfitness at all, trial justice's notation of father's physical limitations and his apparent "symbiotic" relationship
with his wife did not establish how father was unfit to parent, and there was evidence that father took active interest in
children's well-being and had attempted to change his wife's behavior. U.S.C.A. Const.Amend. 14; Gen.Laws 1956, §
15-7-7(a). In re Steven D., 23 A.3d 1138 (R.I. 2011).
Trial court findings are given great weight on appeal in proceeding to terminate parental rights and will not be disturbed
unless it can be shown that they are clearly wrong or the trial justice overlooked or misconceived material evidence.
Gen.Laws 1956, § 15-7-7. In re Julian D., 18 A.3d 477 (R.I. 2011).
Evidence supported trial court's finding that child had been in Department of Children, Youth and Families (DCYF)
custody or care for at least 12 months, that father was offered services to correct situation which led to placement, and
Page 42
that there was no substantial probability of child's returning safely to parental care within reasonable period, as would
warrant termination of father's parental rights; case plan included sexual-offender treatment to address father's prior sex-
ual relationship with child's underage mother, completing case-plan goals was precondition of reunification, and since
father refused to comply with treatment, child could not be returned home. Gen.Laws 1956, § 15-7-7(a)(3). In re Julian
D., 18 A.3d 477 (R.I. 2011).
A parent's genuine love for his or her child, or an existence of a bond between parent and child, is not sufficient to over-
come the child's fundamental right to a safe and nurturing environment, for the purpose of deciding whether to termi-
nate parental rights. Gen.Laws 1956, § 15-7-7. In re Dayvon G., 10 A.3d 448 (R.I. 2010).
The Supreme Court applies a deferential standard when reviewing a decree terminating parental rights: the Court exam-
ines the record to determine whether legally competent evidence exists to support the findings of the trial justice. In re
Daniel D., 9 A.3d 651 (R.I. 2010).
Once a Family Court justice finds that the parent abandoned his or her child, as grounds for termination of parental
rights, the best interests of the child outweigh all other considerations. Gen.Laws 1956, § 15-7-7(a)(4). In re Daniel D.,
9 A.3d 651 (R.I. 2010).
A court must make a finding of unfitness before it may terminate the rights of a parent. Gen.Laws 1956, § 15-7-7. In re
Charles L., 6 A.3d 1089 (R.I. 2010).
Grounds for termination of parental rights (TPR) must be proved by clear and convincing evidence. Stinecipher v.
Ballington, 366 S.C. 92, 620 S.E.2d 93 (Ct. App. 2005).
Termination of parental rights on ground that the child has been removed from the parent, has been out of the home for
a period of six months, and parent has not remedied conditions that led to removal, does not suggest that an attempt to
remedy alone is adequate to preserve parental rights; rather the attempt must have, in fact, remedied the conditions.
Code 1976, § 20-7-1572(2). Department of Social Services v. Phillips, 365 S.C. 572, 618 S.E.2d 922 (Ct. App. 2005).
Clear and convincing evidence supported finding that termination of parental rights of mother and father was in child's
best interest; parents' explanation for the physical abuse inflicted upon child was not credible, parents' statements and
denials were contradicted by both the child's statements and those of his prior siblings detailing past physical and sexual
abuse, child provided detailed statements of sexual abuse by father, and mother was aware of this conduct and did noth-
ing to prevent it. In re J.B., 2008 SD 80, 755 N.W.2d 496 (S.D. 2008).
By their plain language, statute requiring the court, "[i]f the court does not order termination of the parent-child relation-
ship," to either (1) deny the petition or (2) render any order in the best interest of the child, and statute providing that a
court may appoint the Department of Family and Protective Services as a child's conservator "without terminating the
rights of the parent of the child" if the court makes certain findings, apply only when the court does not order termina-
tion of the parent-child relationship, and thus statutes had no application where mother's rights had, in fact, been termi-
nated and Department of Family and Protective Services appointed as child's sole managing conservator. In re J.A.J.,
243 S.W.3d 611 (Tex. 2007).
Termination of parental rights under endangerment provision of termination statute must be based on more than a single
act or omission; the statute requires a voluntary, deliberate, and conscious course of conduct by the parent; it is not nec-
essary, however, that the parent's conduct be directed at the child or that the child actually suffer injury. V.T.C.A., Fam-
ily Code § 161.001(1)(E). In re M.E.-M.N., 342 S.W.3d 254 (Tex. App. Fort Worth 2011), reh'g overruled, (June 16,
2011).
Evidence was sufficient to support termination of father parental rights based on father knowingly engaging in criminal
conduct that resulted in his conviction for an offense and imprisonment and inability to care for child for not less than
two years from the date of filing the petition; father was convicted of a criminal offense and at the time of trial had been
incarcerated for four years, child had previously been removed from the care of paternal grandmother, and no other pa-
ternal relative had been identified who could care for child. V.T.C.A., Family Code § 161.001(1)(Q). In re N.R.T., 338
S.W.3d 667 (Tex. App. Amarillo 2011).
Page 43
In proceedings to terminate parental rights, the trial court must find that both the statutory ground for termination and
the best interests element are established by clear and convincing evidence, and proof of one element does not relieve
the petitioner of the burden of proving the other. V.T.C.A., Family Code § 161.001(1). In re L.J.N., 329 S.W.3d 667
(Tex. App. Corpus Christi 2010).
Termination of parental rights may not be based solely on the best interest of the child; statutory elements must be es-
tablished. V.T.C.A., Family Code § 161.001(1, 2). Jordan v. Dossey, 325 S.W.3d 700 (Tex. App. Houston 1st Dist.
2010), petition for review filed, (Aug. 16, 2010).
Evidence supported finding that biological father of child born out of wedlock knew that mother was pregnant with his
child and that he voluntarily abandoned child, thus supporting termination of father's parental rights; although father tes-
tified that maternal grandmother told him that child's birthdate foreclosed the possibility of his being the father, mater-
nal grandmother denied such claim, witness testified that father had told her that he called mother shortly after child's
birth and that mother confirmed father's paternity and asked him to stay out of their lives, and father contacted mother
after being informed by doctor to tell any potential mothers of his medical condition. V.T.C.A., Family Code §
161.001(1)(H). In re C.J.O., 325 S.W.3d 261 (Tex. App. Eastland 2010), review denied, (Dec. 17, 2010).
Fact that parents appealing a termination of parental rights order in proceedings involving the Texas Department of
Family and Protective Services (TDFPS) were statutorily required to file a statement of points appealed, while parents
involved in private termination suits avoided additional appeal requirement of statement of points, did not violate
mother's equal protection rights, despite mother's contention that parents involved in TDFPS termination cases were
more likely to be indigent; all parents involved in a TDFPS termination suit, whether indigent or not, faced the same ap-
peal requirements. In re R.J.S., 219 S.W.3d 623 (Tex. App. Dallas 2007), review denied, (July 9, 2007).
Due process requires that a necessity for termination of parental rights be shown by clear and convincing evidence.
U.S.C.A. Const.Amend. 14. In re T.N., 180 S.W.3d 376 (Tex. App. Amarillo 2005).
Although the term "endanger," for purposes of section providing for termination of parental rights if court finds that par-
ent has engaged in conduct that endangered the physical or emotional well being of the child, means more than a threat
of metaphysical injury or the possible ill effects of a less-than-ideal environment, it is not necessary that the conduct be
directed at the child or that the child actually suffers injury. In re T.N., 180 S.W.3d 376 (Tex. App. Amarillo 2005).
For purposes of section providing for termination of parental rights if court finds that parent has engaged in conduct that
endangered the physical or emotional well being of the child, endangerment of a child does not have to be established as
an independent proposition but can be inferred from parental misconduct alone. In re T.N., 180 S.W.3d 376 (Tex. App.
Amarillo 2005).
Even if multiple grounds for termination of parental rights are alleged, only one ground is required to terminate parental
rights. V.T.C.A., Family Code § 161.001(1). In re T.N., 180 S.W.3d 376 (Tex. App. Amarillo 2005).
Evidence supported finding that it was in the best interest of the children to terminate mother's parental rights; mother
repeatedly failed to provide proper parental care, she was unemployed, she did not have stable housing, she did not un-
dertake drug treatment or individual therapy because she claimed to have "a lot" going on, and she had a history of drug
use, and the children were living in a therapeutic foster home in which their behavior had been improving, and their ed-
ucational, emotional, and medical needs were being met. State ex rel. R.D., 2011 UT App 132, 253 P.3d 1126 (Utah Ct.
App. 2011).
Evidence supported finding that father was unable to adequately parent child, in support of order terminating father's
custodial rights to child and placing child with maternal aunt and uncle; father suffered from mental illness, during his
improvement period he required hospitalization for treatment of his mental illness, he did not have a stable source of in-
come, and he did not have stable housing. West's Ann.W.Va.Code, 49-6-5(a), (b)(6). In re Nelson B., 225 W. Va. 680,
695 S.E.2d 910 (2010).
Page 44
Rational basis test applied to substantive due process analysis of statute under which father's parental rights were termi-
nated, where father did not have a protected liberty interest because he failed to assume parental, emotional, or financial
responsibility for the child, since father had actual custody of four year old child for only the first four months of her
life, never had legal custody, provided no financial or material support, visited her no more than three times, and each
visit was of short duration, father's calls to child were infrequent, and there was no evidence that father sent child cards,
or birthday or holiday gifts. U.S.C.A. Const.Amend. 14; W.S.A. 48.415(6). In re Gwenevere T., 2011 WI 30, 797
N.W.2d 854 (Wis. 2011).
In considering totality of circumstances of whether parent against whom petition for involuntary termination of parental
rights was filed has assumed parental responsibility, fact finder can and should consider the reasons why a parent has
not supported or cared for her child. W.S.A. 48.415(6). In re Gwenevere T., 2011 WI 30, 797 N.W.2d 854 (Wis. 2011).
Evidence is clear and convincing, as necessary to establish statutory elements required to support termination of
parental rights, if it would persuade a trier of fact that the truth of the contention is highly probable. West's Wyo.S-
tat.Ann. § 14-2-309. In re KMJ, 2010 WY 142, 242 P.3d 968 (Wyo. 2010).

231
Construction and Application by State Courts of the Federal Adoption and Safe Families Act and Its Implementing State
Statutes, 10 A.L.R.6th 173
Parent's involuntary confinement, or failure to care for child as result thereof, as evincing neglect, unfitness, or the like
in dependency or divestiture proceeding, 79 A.L.R. 3d 417
Sexual abuse of child by parent as ground for termination of parent's right to child, 58 A.L.R. 3d 1074.
Physical abuse of child by parent as ground for termination of parent's right to child, 53 A.L.R. 3d 605.
231.
3d 231
Grounds for termination of parental rights, 32 Am. Jur. Proof of Facts 3d 83.
Child Neglect, 3 Am. Jur. Proof of Facts 2d 265.
Am. Jur. Legal Forms 2d, Adoption §§ 9:22 to 9:32
Am. Jur. Pleading and Practice Forms, Adoption §§ 123 to 171
Am. Jur. Pleading and Practice Forms, Parent and Child §§ 123 to 135, 143, 145
Adler, The Meanings of Permanence: A Critical Analysis of the Adoption and Safe Families Act of 1997, 38 Harv. J. on
Legis. 1 (2001)
Bean, Reasonable Efforts: What State Courts Think, 36 U. Tol. L. Rev. 321 (2005)
DeVault, Notes and Comments, Reasonable Efforts Not So Reasonable: The Termination of the Parental Rights of a
Developmentally Disabled Mother, 10 Roger Williams U. L. Rev. 763 (2005)
Gendell, In Search of Permanency: A Reflection on the First 3 Years of the Adoption and Safe Families Act Implemen-
tation, 39 Fam. & Conciliation C. Rev. 25 (2001)
Page 45
Heideman, Avoiding the Need to "Unscramble The Egg:" A Proposal for the Automatic Stay of Subsequent Adoption
Proceedings When Parents Appeal a Judgment Terminating Their Parental Rights, 24 St. Louis U. Pub. L. Rev. 445
(2005)
Hort, Is Twenty-Two Months Beyond the Best Interest of the Child?ASFA's Guidelines for the Termination of Parental
Rights, 28 Fordham Urb. L.J. 1879 (2001)
Moye, City Hall Can Be Beaten: Litigation Strategies for Child and Family Advocates under the Adoption and Safe
Families Act of 1997, 4 J.L. & Fam. Stud. 303 (2002)
Moye, It's a Hard Knock Life: Does the Adoption and Safe Families Act of 1997 Adequately Address Problems in the
Child Welfare System?, 39 Harv. J. on Legis. 375 (2002)
Wexler, Take the Child and Run: Tales from the Age of ASFA, 36 New Eng. L. Rev. 129 (2001)
Wilhelm, Permanency at What Cost?Five Years of Imprudence Under the Adoption and Safe Families Act of 1997, 16
Notre Dame J.L. Ethics & Pub. Pol'y 617 (2002)
Zavez, The Adoption and Safe Families Act: Implementation and Case Law with a Focus on 15/22 Month Termina-
tions, 28 Vt. B.J. 37 (2002)
Page 46
18 of 145 DOCUMENTS

Parent and Child

III. Parental Rights and Duties, In General
A. In General
§ 17 Generally
The commonly understood general obligations of parenthood entail these minimum attributes:
.expression of love and affection for the child
.expression of personal concern over the health, education and general well-being of the child
.the duty to supply the necessary food, clothing, and medical care
.the duty to provide an adequate domicile
.the duty to furnish social and religious guidance n1
The supremacy of parents in their own home as regards the control of their children is generally recognized, n2 though
because the best interests of a child and the best interests of even a loving parent can clash, parental authority over chil-
dren, even where the parent is not generally unfit, is not without limits. n3 Parental rights do not spring full-blown from
the biological connection between a parent and a child; they require relationships more enduring. n4 Parents have a rec-
ognized liberty interest in raising their children, n5 and such interest is of considerable importance and far more precious
than property rights. n6 Parents have a fundamental right to autonomy in child rearing decisions, n7 including whether or
not a relationship with a child's grandparents, n8 or another third party, n9 is in the child's best interest. In peacetime it is
usually provided by Congress that a minor cannot enlist for military service without parental consent. n10
FOOTNOTES:
n1 State v. Miranda, 245 Conn. 209, 715 A.2d 680 (1998); In re Adoption of C.D.M., 2001 OK 103, 39 P.3d 802 (Okla. 2001).
n2 Odell v. Lutz, 78 Cal. App. 2d 104, 177 P.2d 628 (2d Dist. 1947); Hobbs v. Germany, 94 Miss. 469, 49 So. 515 (1909); School Bd. Dist.
No. 18, Garvin County v. Thompson, 1909 OK 136, 24 Okla. 1, 103 P. 578 (1909).
n3 Gonzalez v. Reno, 212 F.3d 1338 (11th Cir. 2000), reh'g and reh'g en banc denied, 215 F.3d 1243 (11th Cir. 2000) and cert. denied, 530
U.S. 1270, 120 S. Ct. 2737, 147 L. Ed. 2d 1001 (2000) (applying Florida law).
n4 Doe v. Brown, 331 S.C. 491, 489 S.E.2d 917 (1997).
n5 Morrell v. Mock, 270 F.3d 1090 (7th Cir. 2001), reh'g and reh'g en banc denied, (Dec. 12, 2001); In re Adoption of A.F.M., 15 P.3d 258
(Alaska 2001); State v. Wilder, 2000 ME 32, 748 A.2d 444 (Me. 2000); In re T.B., 1999 MT 174, 295 Mont. 234, 983 P.2d 929 (1999); In re
Interest of Tabatha R., 255 Neb. 818, 587 N.W.2d 109 (1998); Zivich v. Mentor Soccer Club, Inc., 82 Ohio St. 3d 367, 696 N.E.2d 201
(1998); In Interest of Nadia S., 219 Wis. 2d 296, 581 N.W.2d 182 (1998).
n6 Morrell v. Mock, 270 F.3d 1090 (7th Cir. 2001), reh'g and reh'g en banc denied, (Dec. 12, 2001).
Page 47
n7 In re Custody of Smith, 137 Wash. 2d 1, 969 P.2d 21 (1998), cert. granted, 527 U.S. 1069, 120 S. Ct. 11, 144 L. Ed. 2d 842 (1999) and
judgment aff'd, 530 U.S. 57, 120 S. Ct. 2054, 147 L. Ed. 2d 49 (2000).
Related References:
Should parents be permitted to authorize genetic testing for their children? 31 Fam LQ 2:321 (1997).
n8 Hoff v. Berg, 1999 ND 115, 595 N.W.2d 285 (N.D. 1999);
As to rights of parents as against others with regard to custody, see §§ 32, 33.
As to grandparents' visitation rights where parents are not divorced or separated, see § 40.
As to grandparents' visitation rights where parents are divorced or separated, see 24A Am. Jur. 2d, Divorce and Separation § 977.
n9 Hoff v. Berg, 1999 ND 115, 595 N.W.2d 285 (N.D. 1999); In re Custody of Smith, 137 Wash. 2d 1, 969 P.2d 21 (1998), cert. granted,
527 U.S. 1069, 120 S. Ct. 11, 144 L. Ed. 2d 842 (1999) and judgment aff'd, 530 U.S. 57, 120 S. Ct. 2054, 147 L. Ed. 2d 49 (2000).
n10 53 Am. Jur. 2d, Military and Civil Defense § 63.
SUPPLEMENT:
Cases
Unwarranted state interference with the relationship between parent and child violates substantive due process.
U.S.C.A. Const.Amend. 14. Crowe v. County of San Diego, 593 F.3d 841 (9th Cir. 2010).
A parent has a fundamental liberty interest in the care, custody, and management of his or her child. (Per Bolin, J., with
one Justice concurring, three Justices concurring specially, and one Justice concurring in the result.) Ex parte M.D.C.,
39 So. 3d 1117 (Ala. 2009).
In general, neither the legislature nor the courts may properly intervene in parental decisionmaking absent significant
harm to the child threatened by or resulting from those decisions. Global Travel Marketing, Inc. v. Shea, 908 So. 2d 392
(Fla. 2005).
Parents have a fundamental liberty interest, protected by both the Florida and federal constitutions, in determining the
care and upbringing of their children. Florida Dept. Of Children And Families v. F.L., 880 So. 2d 602 (Fla. 2004).
While parental rights are fundamental, the parental right is not absolute, but is subject to the overriding principle that it
is the ultimate welfare or best interest of the child which must prevail. In re E.R., 49 So. 3d 846 (Fla. Dist. Ct. App. 2d
Dist. 2010).
Parents possess the fundamental right to make decisions concerning the care, custody, and control of their children with-
out unwarranted state intrusion. In re Sophia G.L., 229 Ill. 2d 143, 321 Ill. Dec. 748, 890 N.E.2d 470 (2008).
Parents have a fundamental liberty interest in the care, custody, and control of their children. Hojnowski v. Vans Skate
Park, 187 N.J. 323, 901 A.2d 381 (2006).
Right to raise one's child is regarded as essential and fundamental. In re B.P., 191 Ohio App. 3d 518, 2010-Ohio-6458,
946 N.E.2d 818 (4th Dist. Adams County 2010).
Natural parents have a fundamental liberty interest in the care, custody, and management of their children. U.S.C.A.
Const.Amend. 14. In re Dayvon G., 10 A.3d 448 (R.I. 2010).
Natural parents have a fundamental liberty interest in the care, custody, and management of their children. U.S.C.A.
Const.Amend. 14. In re Charles L., 6 A.3d 1089 (R.I. 2010).
Page 48
Parents have a fundamental state constitutional due process right to make decisions concerning the care and control of
their children. West's U.C.A. Const. Art. 1, § 7. Jensen ex rel. Jensen v. Cunningham, 2011 UT 17, 250 P.3d 465 (Utah
2011).
REFERENCE: West's Key Number Digest, Child Custody [westkey]8, 23, 30, 46, 100 to 107
West's Key Number Digest, Child Support [westkey]52, 115 to 120
West's Key Number Digest, Parent and Child [westkey]1, 2.5, 13.5(3), 14
A.L.R. Digest: Parent and Child §§ 3, 4
West's Key Number Digest, Parent and Child [westkey]1, 2.5, 13.5(3)
Page 49
19 of 145 DOCUMENTS

Parent and Child

A. In General
§ 18 Power of state
Parental rights are not absolute and are subject to reasonable regulation. n1 The state, as parens patriae, has a wide range
of power for limiting parental freedom and authority in things affecting the child's welfare. n2 The parents, as natural
guardians, are responsible to the state for the child's well-being. n3 The natural rights of a parent to the custody and con-
trol of his infant child are subject to the power of the state, and may be restricted and regulated by appropriate legisla-
tive or judicial action. n4 Only a compelling state interest justifies burdening the parent's fundamental right to enjoy a re-
lationship with his child, and the state must bear the burden of demonstrating the necessity for doing so. n5
A parent cannot be deprived of his parental rights without due process of law. n6
FOOTNOTES:
n1 Nunez by Nunez v. City of San Diego, 114 F.3d 935 (9th Cir. 1997).
n2 Prince v. Massachusetts, 321 U.S. 158, 64 S. Ct. 438, 88 L. Ed. 645 (1944); Miller v. Hedrick, 158 Cal. App. 2d 281, 322 P.2d 231 (4th
Dist. 1958); In re N. H., 135 Vt. 230, 373 A.2d 851 (1977).
n3 Turner v. Turner, 167 Cal. App. 2d 636, 334 P.2d 1011 (2d Dist. 1959).
n4 Stanley v. Illinois, 405 U.S. 645, 92 S. Ct. 1208, 31 L. Ed. 2d 551 (1972); Hammer v. Hammer, 16 Alaska 203, 1956 WL 3454 (Terr.
Alaska 1956); Porter v. Porter, 60 Fla. 407, 53 So. 546 (1910); Risting v. Sparboe, 179 Iowa 1133, 162 N.W. 592 (1917); State v. Garber,
197 Kan. 567, 419 P.2d 896 (1966); State ex rel. Paul v. Peniston, 235 La. 579, 105 So. 2d 228 (1958); Hersey v. Hersey, 271 Mass. 545,
171 N.E. 815, 70 A.L.R. 518 (1930); Bryant v. Brown, 151 Miss. 398, 118 So. 184, 60 A.L.R. 1325 (1928); Ex parte Badger, 286 Mo. 139,
226 S.W. 936, 14 A.L.R. 286 (1920); Ex parte Alderman, 157 N.C. 507, 73 S.E. 126 (1911); City of Eastlake v. Ruggiero, 7 Ohio App. 2d
212, 36 Ohio Op. 2d 345, 220 N.E.2d 126 (7th Dist. Lake County 1966); Looper v. McManus, 1978 OK CIV APP 26, 581 P.2d 487 (Okla.
Ct. App. Div. 2 1978); In re N. H., 135 Vt. 230, 373 A.2d 851 (1977).
As to depriving parents of custody, see § 36.
As to juvenile delinquency statutes as an assertion of a state's power as parens patriae, see 47 Am. Jur. 2d, Juvenile Courts and Delinquent
and Dependent Children § 35.
n5 Hoff v. Berg, 1999 ND 115, 595 N.W.2d 285 (N.D. 1999).
n6 Arizona State Dept. of Public Welfare v. Barlow, 80 Ariz. 249, 296 P.2d 298 (1956); Sinquefield v. Valentine, 159 Miss. 144, 132 So.
81, 76 A.L.R. 238 (1931); Goldstein v. Lavine, 100 Misc. 2d 126, 418 N.Y.S.2d 845 (Sup 1979); Lacher v. Venus, 177 Wis. 558, 188 N.W.
613, 24 A.L.R. 403 (1922).
SUPPLEMENT:
Page 50
Cases
Unwarranted state interference with the relationship between parent and child violates substantive due process.
U.S.C.A. Const.Amend. 14. Crowe v. County of San Diego, 608 F.3d 406 (9th Cir. 2010).
Social workers and police officers had a reasonable objective basis to believe that an emergency situation existed re-
garding threat of abuse to eleven-month-old infant and her five-year-old sister, given the facts they had at the time of re-
moval, and therefore, they did not violate parents' procedural due process right by removing the children without prior
notice and a hearing; younger child had been taken to the emergency room twice within one week, she had a broken arm
and some sort of hip injury, medical personnel found the mother's explanation for the injuries incongruous with the na-
ture of the injuries, they were concerned enough to make a report to appropriate agency, and child was then placed with
a relative who sided with the parents' position that the doctors were to blame and that there was no possibility that any-
one could have abused child, thereby making it likely that older child would be targeted for abuse, and that younger
child's safety remained threatened. Arredondo v. Locklear, 371 F. Supp. 2d 1281 (D.N.M. 2005)
For purposes of determining the limits of parental rights under the state constitutional due process clause, the state's in-
terest in protecting children is especially strong in the case where a child's life is endangered. West's U.C.A. Const. Art.
1, § 7. Jensen ex rel. Jensen v. Cunningham, 2011 UT 17, 250 P.3d 465 (Utah 2011).
Power of court or other public agency to order medical treatment over parental religious objections for child whose life
is not immediately endangered, 21 A.L.R. 5th 248.
Validity and application of statute allowing endangered child to be temporarily removed from parental custody, 38
A.L.R. 4th 756.
Power of court or other public agency to order medical treatment for child over parental objections not based on reli-
gious grounds, 97 A.L.R. 3d 421.
Page 51
20 of 145 DOCUMENTS

Parent and Child

A. In General
§ 19 Medical procedures performed over parents' objections
Where parents, because of their religious beliefs, or for other reasons, fail to provide or refuse to permit medical treat-
ment which the child requires, the state may take custody from the parents in order to provide such treatment. n1 The
court's power to interfere may include treatment for mental or emotional ills, as well as purely physical ailments. n2
However, the state, concerned for the medical needs of children, cannot willfully disregard the right of parents to make
decisions concerning treatment to be given to their children. n3 Unless the parents are found unfit and deprived of cus-
tody, the court cannot order a surgical operation for the child over their objection. n4 Cases involving the power of a state
body to have a child taken for medical treatment despite the religious objections of the parents in a non-emergency or a
non-life-threatening situation focus primarily on the nature of the treatment in question. Courts have ordered that chil-
dren receive needed dentistry, n5 that a child's tonsils be removed, n6 that a child be treated for hydrocephalus n7 and can-
cer, n8 and that a child receive a blood transfusion over the religious objection of his or her parents. n9 However, other
courts have held that in a non-emergency situation, a blood transfusion will not be ordered over the religious objections
of a parent, n10 and where the treatment for a condition is itself extremely risky, invasive, and life-threatening, a court
will not order that a child undergo it over the religious objections of the parents. n11
FOOTNOTES:
n1 People ex rel. Wallace v. Labrenz, 411 Ill. 618, 104 N.E.2d 769, 30 A.L.R.2d 1132 (1952); Custody of a Minor, 378 Mass. 732, 393
N.E.2d 836 (1979); Morrison v. State, 252 S.W.2d 97 (Mo. Ct. App. 1952); In re Vasko, 238 A.D. 128, 263 N.Y.S. 552 (2d Dep't 1933);
Mitchell v. Davis, 205 S.W.2d 812, 12 A.L.R.2d 1042 (Tex. Civ. App. Dallas 1947), writ refused.
A parent has no power to forbid the saving of his child's life. Application of President and Directors of Georgetown College, Inc., 331 F.2d
1000, 9 A.L.R.3d 1367 (D.C. Cir. 1964).
n2 In re Carstairs, 115 N.Y.S.2d 314 (Dom. Rel. Ct. 1952); In re Weintraub, 166 Pa. Super. 342, 71 A.2d 823 (1950).
n3 Bendiburg v. Dempsey, 909 F.2d 463 (11th Cir. 1990).
n4 In re Hudson, 13 Wash. 2d 673, 126 P.2d 765 (1942).
n5 In re Karwath, 199 N.W.2d 147 (Iowa 1972).
n6 Matter of Gregory S, 85 Misc. 2d 846, 380 N.Y.S.2d 620 (Fam. Ct. 1976).
n7 Matter of Jensen, 54 Or. App. 1, 633 P.2d 1302 (1981).
n8 In re Willmann, 24 Ohio App. 3d 191, 493 N.E.2d 1380 (1st Dist. Hamilton County 1986); Matter of Hamilton, 657 S.W.2d 425 (Tenn.
Ct. App. 1983).
Page 52
n9 Muhlenberg Hospital v. Patterson, 128 N.J. Super. 498, 320 A.2d 518 (Law Div. 1974); J.V. v. State, 516 So. 2d 1133 (Fla. Dist. Ct.
App. 1st Dist. 1987); People ex rel. Wallace v. Labrenz, 411 Ill. 618, 104 N.E.2d 769, 30 A.L.R.2d 1132 (1952); Matter of McCauley, 409
Mass. 134, 565 N.E.2d 411 (1991); Matter of Cabrera, 381 Pa. Super. 100, 552 A.2d 1114 (1989); O.G. v. Baum, 790 S.W.2d 839 (Tex.
App. Houston 1st Dist. 1990).
n10 In re E.G., 133 Ill. 2d 98, 139 Ill. Dec. 810, 549 N.E.2d 322 (1989) (17-year-old "mature minor" also objected to transfusion); In re
Green, 448 Pa. 338, 292 A.2d 387, 52 A.L.R.3d 1106 (1972).
n11 Newmark v. Williams, 588 A.2d 1108, 21 A.L.R.5th 857 (Del. 1991).
SUPPLEMENT:
Cases
When a child's life or health is endangered by his or her parents' decisions regarding the child's medical care, the state
may, in some circumstances, temporarily intervene without violating the parents' due process rights. West's U.C.A.
Const. Art. 1, § 7; U.C.A.1953, 62A-4a-201 (2004). Jensen ex rel. Jensen v. Cunningham, 2011 UT 17, 250 P.3d 465
(Utah 2011).
Page 53
21 of 145 DOCUMENTS

Parent and Child

A. In General
§ 20 Rights of respective parents
Generally, the rights of the father and mother, as parents, are equal. This is evidenced by the adoption of statutes in
many jurisdictions making the father and mother joint guardians over their children, or expressly providing that the fa-
ther and mother shall have the joint and equal right to the custody, control, and services of the child. n1 A transfer of the
parental status and rights from the father to the mother may be made by agreement, tacit or express, between them. n2
On the death of one parent, the surviving parent automatically assumes the right to custody of the couple's children. n3
If a man abandons his wife and children, he forfeits his rights, or transfers them to the mother, in whose care the chil-
dren remain. n4
The relative rights of the father and mother may be fixed by a decree of court, either in proceedings directly concerning
the custody of the child n5 or in divorce proceedings between the parents. n6
Neither parent has a superior right to determine the surname of a child, nor a legal entitlement to have a child receive his
or her surname. n7 Where a father and mother disagree as to what their child's surname should be, there is no special
right that a father has in having the child bear his name, but the best interest of the child is paramount, and the husband
has no greater interest than the wife in the use of the surname. n8
FOOTNOTES:
n1 § 21.
n2 McGarr v. National & Providence Worsted Mills, 24 R.I. 447, 53 A. 320 (1902).
For agreements as to custody, see § 31.
n3 Southwestern Gas & Elec. Co. v. Denney, 190 Ark. 934, 82 S.W.2d 17 (1935); Matter of K.M., 280 Mont. 256, 929 P.2d 870 (1996);
Carr v. Prader, 725 A.2d 291 (R.I. 1999).
A divorced noncustodial parent who has not been judicially determined to be unfit for custody prior to the death of the ex-spouse and whose
parental rights have not been terminated obtains custody rights of the couple's children upon the death of the ex-spouse. S.W. v. Duncan,
2001 OK 39, 24 P.3d 846 (Okla. 2001).
n4 Yost v. Grand Trunk Ry. Co., 163 Mich. 564, 128 N.W. 784 (1910); Magnuson v. O'Dea, 75 Wash. 574, 135 P. 640 (1913).
n5 § 26
n6 24A Am. Jur. 2d, Divorce and Separation §§ 1001 et seq.

Page 54
n7 57 Am. Jur. 2d, Name § 14.
n8 Pizziconi v. Yarbrough, 177 Ariz. 422, 868 P.2d 1005 (Ct. App. Div. 1 1993); In re Marriage of Schiffman, 28 Cal. 3d 640, 169 Cal.
Rptr. 918, 620 P.2d 579 (1980); In re Marriage of Gulsvig, 498 N.W.2d 725 (Iowa 1993); Lassiter-Geers v. Reichenbach, 303 Md. 88, 492
A.2d 303 (1985); Application of Saxton, 309 N.W.2d 298 (Minn. 1981); Cohee v. Cohee, 210 Neb. 855, 317 N.W.2d 381 (1982); Keegan v.
Gudahl, 525 N.W.2d 695, 40 A.L.R.5th 901 (S.D. 1994); In re Wilson, 162 Vt. 281, 648 A.2d 648 (1994).
Rights and remedies of parents inter se with respect to the names of their children, 40 A.L.R. 5th 697.
Page 55
22 of 145 DOCUMENTS

Parent and Child

A. In General
§ 21 Effect of statutes
The modern tendency to equalize the rights of the two parents as to their children has led to the enactment in a number
of jurisdictions of statutes by which the father and mother are declared to be joint guardians of their children, with equal
rights of custody and control. n1 Such statutes negative the idea that each parent is so far the agent or representative of
the other, as regards the rearing of their minor children, as to make the negligence of one imputable to the other. n2
Statutes of this kind cannot be invoked to defeat the effect of partial emancipation by the father. n3 Joint guardianship
continues after the parents have separated. n4
FOOTNOTES:
n1 Southwestern Gas & Elec. Co. v. Denney, 190 Ark. 934, 82 S.W.2d 17 (1935); Antedomenico v. Antedomenico, 142 Conn. 558, 115
A.2d 659 (1955) (overruled on other grounds by, Hao Thi Popp v. Lucas, 182 Conn. 545, 438 A.2d 755 (1980)); Risting v. Sparboe, 179
Iowa 1133, 162 N.W. 592 (1917); Denton v. James, 107 Kan. 729, 193 P. 307, 12 A.L.R. 1146 (1920); Schneider v. Schneider, 160 Md. 18,
152 A. 498, 72 A.L.R. 449 (1930); Jacobs v. Jacobs, 136 Minn. 190, 161 N.W. 525 (1917); Sinquefield v. Valentine, 159 Miss. 144, 132 So.
81, 76 A.L.R. 238 (1931); Herrell v. St. Louis-San Francisco Ry. Co., 324 Mo. 38, 23 S.W.2d 102, 69 A.L.R. 470 (1929); Leclerc v. Leclerc,
85 N.H. 121, 155 A. 249, 74 A.L.R. 1348 (1931); Cafaro v. Cafaro, 118 N.J.L. 123, 191 A. 472 (N.J. Ct. Err. & App. 1937); Kellogg v. Bur-
dick, 187 N.Y. 355, 80 N.E. 207 (1907); Ex parte Bryant, 106 Or. 359, 210 P. 454 (1922); Dovi v. Dovi, 245 Wis. 50, 13 N.W.2d 585, 151
A.L.R. 1368 (1944).
n2 Illingworth v. Madden, 135 Me. 159, 192 A. 273, 110 A.L.R. 1090 (1937); Herrell v. St. Louis-San Francisco Ry. Co., 324 Mo. 38, 23
S.W.2d 102, 69 A.L.R. 470 (1929).
n3 Dunlap v. Dunlap, 84 N.H. 352, 150 A. 905, 71 A.L.R. 1055 (1930).
n4 Boardman v. Boardman, 135 Conn. 124, 62 A.2d 521, 13 A.L.R.2d 295 (1948).
SUPPLEMENT:
Cases
Former lesbian domestic partner had standing to petition to establish parental relationship with child who was born to
former partner, while they were living together, under gender-neutral application of Uniform Parentage Act (UPA) pro-
vision according presumption of paternity to man who receives child into his home and openly holds out child as his
natural child. West's Ann.Cal.Fam. Code § 7611(d). Charisma R. v. Kristina S., 140 Cal. App. 4th 301, 44 Cal. Rptr. 3d
332 (1st Dist. 2006), as modified, (June 22, 2006).
Page 56

Page 57
23 of 145 DOCUMENTS

Parent and Child

A. In General
§ 22 Protection and care
Generally, only biological and adoptive parents are legally responsible for the welfare of their children. n1 It is the right
and duty of parents under the law of nature as well as the common law and the statutes of many states to protect their
children; n2 to care for them in sickness and in health; and to do whatever may be necessary for their care, maintenance,
and preservation. n3 Parents are not required to do the impossible in caring for their children, n4 but are bound to provide
such reasonable care and protection as an ordinarily prudent person, solicitous for the welfare of a child, would deem
necessary. n5 A parent's failure to act can violate the duty to protect a child from abuse. n6 The duty of care is not neces-
sarily dependent on custody. n7 Absent emergency circumstances, a noncustodial parent must consult with the custodial
parent of a child before subjecting the child to a medical procedure that may have a significant effect on the child's emo-
tional development. n8
FOOTNOTES:
n1 T.P.D. v. A.C.D., 981 P.2d 116 (Alaska 1999).
n2 State v. Joyce, 361 So. 2d 406 (Fla. 1978); Beigler v. Chamberlin, 138 Minn. 377, 165 N.W. 128 (1917); Plaxico v. Michael, 735 So. 2d
1036 (Miss. 1999); School Bd. Dist. No. 18, Garvin County v. Thompson, 1909 OK 136, 24 Okla. 1, 103 P. 578 (1909); In re Moorehead's
Estate, 289 Pa. 542, 137 A. 802, 52 A.L.R. 1251 (1927); Mitchell v. Davis, 205 S.W.2d 812, 12 A.L.R.2d 1042 (Tex. Civ. App. Dallas
1947), writ refused; State v. Rooney, 788 A.2d 490 (Vt. 2001).
Related References:
Protective custody: Will it eradicate fetal abuse and lead to the perfect womb? 35 Houston LR 1:227 (1999).
n3 In re Adoption of B.M.W., 268 Kan. 871, 2 P.3d 159 (2000); People v. Pierson, 176 N.Y. 201, 68 N.E. 243 (1903); Owens v. State, 6
Okla. Crim. 110, 116 P. 345 (1911); Weston's Adm'x v. Hospital of St. Vincent of Paul, 131 Va. 587, 107 S.E. 785, 23 A.L.R. 907 (1921).
A child's legal custodian is entitled to make major decisions regarding a child's health. Chandler v. Bishop, 142 N.H. 404, 702 A.2d 813
(1997).
n4 Dattola v. Burt Bros., 288 Pa. 134, 135 A. 736, 51 A.L.R. 205 (1927).
n5 Humphrey v. City of Homestead, 224 So. 2d 739 (Fla. Dist. Ct. App. 3d Dist. 1969); Stehr v. State, 92 Neb. 755, 139 N.W. 676 (1913),
aff'd, 94 Neb. 151, 142 N.W. 670 (1913); People v. Pierson, 176 N.Y. 201, 68 N.E. 243 (1903); Owens v. State, 6 Okla. Crim. 110, 116 P.
345 (1911); Tecker v. Seattle, R & S. Ry. Co., 60 Wash. 570, 111 P. 791 (1910).
n6 State v. Rooney, 788 A.2d 490 (Vt. 2001).
n7 Johnson v. Varney, 2 Ohio St. 2d 161, 31 Ohio Op. 2d 316, 207 N.E.2d 558 (1965).
Page 58
n8 In re Paternity of Cheryl, 434 Mass. 23, 746 N.E.2d 488 (2001).
SUPPLEMENT:
Cases
Parents have a common-law duty to protect their children. State v. Maurice M., 116 Conn. App. 1, 975 A.2d 90 (2009),
certification granted in part, 293 Conn. 926, 980 A.2d 913 (2009).
A person need not have responsibility for a child to exert "control" over that child within meaning of child endanger-
ment statute. I.C.A. § 726.6, subd. 1, par. a. State v. Anspach, 627 N.W.2d 227 (Iowa 2001).
West's Key Number Digest, Parent and Child [westkey]1, 13.5(3)
Page 59
24 of 145 DOCUMENTS

Parent and Child

A. In General
§ 23 Control of education
Except as modified by statute, the general rule is that parents n1 and legal custodians n2 have the right to control the edu-
cation of their children. Parents have a constitutional right to choose the education their children receive. n3 However, the
right is subordinate to the police power of the state and may be restricted and regulated by municipal law providing
minimum educational standards. n4 The state's power in this area is limited. For example, parents have a right to educate
their children elsewhere than in the public schools, provided the state's minimum educational requirements are met. n5 A
law requiring all children of certain ages to attend public schools is unconstitutional as it is an unreasonable interference
with the liberty of parents and guardians to direct the upbringing and education of children under their control. n6
FOOTNOTES:
n1 N.A.H. v. S.L.S., 9 P.3d 354 (Colo. 2000); Denton v. James, 107 Kan. 729, 193 P. 307, 12 A.L.R. 1146 (1920); In re Guardianship of
Faust, 239 Miss. 299, 123 So. 2d 218 (1960); State v. Ferguson, 95 Neb. 63, 144 N.W. 1039 (1914); School Bd. Dist. No. 18, Garvin County
v. Thompson, 1909 OK 136, 24 Okla. 1, 103 P. 578 (1909).
n2 Chandler v. Bishop, 142 N.H. 404, 702 A.2d 813 (1997).
n3 Peter v. Wedl, 155 F.3d 992, 129 Ed. Law Rep. 594 (8th Cir. 1998).
Related References:
Parental rights and responsibilities of control over children's education. 26 J Law & Educ 1:179 (1997).
n4 State v. Garber, 197 Kan. 567, 419 P.2d 896 (1966).
As to education as a governmental function, see 68 Am. Jur. 2d, Schools § 6.
n5 State v. Garber, 197 Kan. 567, 419 P.2d 896 (1966); In re Guardianship of Faust, 239 Miss. 299, 123 So. 2d 218 (1960); Matter of Lash,
92 Misc. 2d 642, 401 N.Y.S.2d 124 (Fam. Ct. 1977).
n6 Pierce v. Society of the Sisters of the Holy Names of Jesus and Mary, 268 U.S. 510, 45 S. Ct. 571, 69 L. Ed. 1070, 39 A.L.R. 468 (1925).
The state lacks any general power to standardize its children by forcing them to accept instruction from public teachers only. Peter v. Wedl,
155 F.3d 992, 129 Ed. Law Rep. 594 (8th Cir. 1998).
SUPPLEMENT:
Cases
Page 60
Due Process Clause's protection of parents' liberty interest in having a degree of control over their children's education
did not extend to noncustodial divorced father's desire to be present on school grounds to monitor school's protection of
his children from bullies, nor to father's desire for access to his children's educational records, which were allegedly
available only to custodial mother; mother did not join father's action, father already possessed right to copies of school
records under state law, and father's cited interests were outweighed by state interests, including need for autonomy.
Crowley v. McKinney, 400 F.3d 965, 196 Ed. Law Rep. 50 (7th Cir. 2005).
Fourteenth Amendment prevents state from denying parents the right to choose private schools for their children's edu-
cation. Pelletier v. Maine Principals' Ass'n., 261 F. Supp. 2d 10, 177 Ed. Law Rep. 992 (D. Me. 2003).
Non-custodial parent retains no decision-making authority pertaining to the education of the child, where (1) the custo-
dial parent is granted exclusive custody of the child and (2) the divorce decree and custody order are silent as to the
right to control such decisions. Fuentes v. Board of Educ. of City of New York, 12 N.Y.3d 309, 879 N.Y.S.2d 818, 907
N.E.2d 696 (2009).
Page 61
25 of 145 DOCUMENTS

Parent and Child

A. In General
§ 24 Religious training
The religious training of minor children, or lack of it, is a matter solely within the parents' n1 or the legal custodian's n2
control, one over which the courts generally have no authority, n3 and parents have standing to protect n4 that constitution-
ally guaranteed right. n5 A decree that minor children be free to attend the church of their own choice is wholly beyond
the powers of the court. n6 Nevertheless, the state has a wide range of power for limiting parental freedom and authority
in things affecting the child's welfare and this includes, to some extent, matters of conscience and religious conviction. n7
The religious authority of the parents generally is held to be equal, n8 and has frequently been equalized by statute. n9
In custody proceedings involving contests between natural parents of a child the courts generally refuse to recognize
that either parent has a primary or controlling right to determine the religious faith of the child, but make decisions
based on the welfare of the child. However, courts may properly take religious factors into account in determining what
course is best for the child, and may mold the decree to protect the child from the deleterious effect of any religious con-
flict between the parents. n10
An agreement between parents, antenuptial or otherwise, as to the religious training to be given their children, usually
has no binding effect in proceedings involving custody. n11
FOOTNOTES:
n1 Doe v. Madison School Dist. No. 321, 177 F.3d 789, 135 Ed. Law Rep. 387 (9th Cir. 1999); People ex rel. Portnoy v. Strasser, 303 N.Y.
539, 104 N.E.2d 895 (1952).
Related References:
Free exercise of religion: The conflict between a parent's rights and a minor child's right in determining the religion of
the child. 34 U Louisville J Fam L 1:219 (1997).
n2 Chandler v. Bishop, 142 N.H. 404, 702 A.2d 813 (1997).
n3 Denton v. James, 107 Kan. 729, 193 P. 307, 12 A.L.R. 1146 (1920).
n4 Doe v. Madison School Dist. No. 321, 177 F.3d 789, 135 Ed. Law Rep. 387 (9th Cir. 1999).
n5 Knowlton v. Baumhover, 182 Iowa 691, 166 N.W. 202, 5 A.L.R. 841 (1918); In re Guardianship of Faust, 239 Miss. 299, 123 So. 2d 218
(1960).
Page 62
Related References:
The child's best interests vs. the parent's free exercise of religion. 32 Colum J L&SP 1:73 (1999).
n6 In re Guardianship of Faust, 239 Miss. 299, 123 So. 2d 218 (1960).
n7 Prince v. Massachusetts, 321 U.S. 158, 64 S. Ct. 438, 88 L. Ed. 645 (1944).
As to the authority of the state to order medical treatment over parents' religious objection, see § 19.
n8 Donahue v. Donahue, 142 N.J. Eq. 701, 61 A.2d 243 (Ct. Err. & App. 1948).
n9 § 21.
n10 24A Am. Jur. 2d, Divorce and Separation § 935.
n11 McLaughlin v. McLaughlin, 20 Conn. Supp. 278, 132 A.2d 420 (Super. Ct. 1957); Stanton v. Stanton, 213 Ga. 545, 100 S.E.2d 289, 66
A.L.R.2d 1401 (1957); Lynch v. Uhlenhopp, 248 Iowa 68, 78 N.W.2d 491 (1956); Denton v. James, 107 Kan. 729, 193 P. 307, 12 A.L.R.
1146 (1920); Dumais v. Dumais, 152 Me. 24, 122 A.2d 322 (1956); Boerger v. Boerger, 26 N.J. Super. 90, 97 A.2d 419 (Ch. Div. 1953).
Related References:
"Mom, do I have to go to church?" The noncustodial parent's obligation to carry out the custodial parent's religious
plans. 31 Fam LQ 3:585 (1998).
Postdivorce disputes concerning the religious upbringing of children. 9 Divorce Litig 7:135 (1998).
West's Key Number Digest, Child Custody [westkey]30, 46, 104
Religion as factor in child custody and visitation cases, 22 A.L.R. 4th 971.
Page 63
26 of 145 DOCUMENTS

Parent and Child

A. In General
§ 25 Discipline
A parent, being charged with the training and education of his child, has the right to adopt such disciplinary measures
for the child as will enable him to discharge his parental duty. n1 Accordingly, he has the right to correct the child by rea-
sonable and timely punishment, n2 including corporal punishment. n3 A parent has a wide discretion in the performance of
such functions, n4 but the right of parental discipline has its limits, n5 and if the limits are exceeded, the parent may be
criminally liable for assault or other offenses, n6 for violation of penal statutes prohibiting child abuse, n7 or even, if death
results, for murder or manslaughter. n8
The courts, however, are not in full agreement as to how the limits are defined. The rule recognized by many courts is
that a parent may, without criminal liability, inflict such punishment as is reasonable under the given facts and circum-
stances. n9 Under this view, the reasonableness or excessiveness of the punishment is a question of fact for the jury. n10
The totality of the circumstances test, typically an objective standard, is employed to determine when parental discipline
crosses the line from moderate and reasonable chastisement to criminal child abuse. n11
FOOTNOTES:
n1 Turner v. Turner, 167 Cal. App. 2d 636, 334 P.2d 1011 (2d Dist. 1959); In Interests of W.G., 349 N.W.2d 487 (Iowa 1984); Roe v. Doe,
29 N.Y.2d 188, 324 N.Y.S.2d 71, 272 N.E.2d 567 (1971); State v. Spiegel, 39 Wyo. 309, 270 P. 1064, 64 A.L.R. 289 (1928).
n2 In Interests of W.G., 349 N.W.2d 487 (Iowa 1984); Carpenter v. Com., 186 Va. 851, 44 S.E.2d 419 (1947).
n3 State v. Hunt, 2 Ariz. App. 6, 406 P.2d 208 (1965); People v. Whitehurst, 9 Cal. App. 4th 1045, 12 Cal. Rptr. 2d 33 (4th Dist. 1992); In
Interests of W.G., 349 N.W.2d 487 (Iowa 1984).
Related References:
Spanking and other corporal punishment of children by parents: Overvaluing pain, undervaluing children. 35 Houston
LR 1:147 (1999).
n4 Emery v. Emery, 45 Cal. 2d 421, 289 P.2d 218 (1955).
Related References:
Spare the rod, embrace our humanity: Toward a new legal regime prohibiting corporal punishment of children. 31 U
Mich J L Reform 2:353 (1999).
n5 Appeal of E.S., 82 Pa. Commw. 168, 474 A.2d 432 (1984).

Page 64
n6 Summers v. State, 99 Ga. App. 183, 108 S.E.2d 140 (1959); People v. Green, 155 Mich. 524, 119 N.W. 1087 (1909); State v. Koonse,
123 Mo. App. 655, 101 S.W. 139 (1907); Fields v. State, 160 Tex. Crim. 545, 272 S.W.2d 520 (1954).
As to criminal liability for assault and battery by a parent upon his child, see 6 Am. Jur. 2d, Assault and Battery § 32.
n7 People v. Peabody, 46 Cal. App. 3d 43, 119 Cal. Rptr. 780 (5th Dist. 1975); Hunter v. State, 172 Ind. App. 397, 360 N.E.2d 588 (1st
Dist. 1977); State v. Sumler, 395 So. 2d 766 (La. 1981); State v. Fuentes, 91 N.M. 554, 577 P.2d 452 (Ct. App. 1978); State v. Rogers, 44
Ohio App. 2d 289, 73 Ohio Op. 2d 329, 337 N.E.2d 791 (1st Dist. Hamilton County 1975).
n8 40 Am. Jur. 2d, Homicide § 78.
n9 People v. Stewart, 188 Cal. App. 2d 88, 10 Cal. Rptr. 217 (2d Dist. 1961); Summers v. State, 99 Ga. App. 183, 108 S.E.2d 140 (1959);
State v. Severns, 158 Kan. 453, 148 P.2d 488 (1944); Taylor v. Com., 302 S.W.2d 378 (Ky. 1957); State v. Black, 360 Mo. 261, 227 S.W.2d
1006 (1950); Richardson v. State Board of Control of Institutions and Agencies, 98 N.J.L. 690, 121 A. 457 (N.J. Sup. Ct. 1923), aff'd, 99
N.J.L. 516, 123 A. 720 (N.J. Ct. Err. & App. 1924); Carpenter v. Com., 186 Va. 851, 44 S.E.2d 419 (1947); State v. Spiegel, 39 Wyo. 309,
270 P. 1064, 64 A.L.R. 289 (1928).
n10 Clasen v. Pruhs, 69 Neb. 278, 95 N.W. 640 (1903).
n11 Fisher v. State, 367 Md. 218, 786 A.2d 706 (2001).
Validity and construction of penal statute prohibiting child abuse, 1 A.L.R. 4th 38.
Criminal liability for excessive or improper punishment inflicted on child by parent, teacher, or one in loco parentis, 89
A.L.R. 2d 396.
Page 65
27 of 145 DOCUMENTS

Parent and Child

B. Custody; Visitation
§ 26 Generally
Custody embraces the sum of parental rights with respect to the rearing of a child, including his care. It includes the
right to the child's services and earnings, and the right to direct his activities and make decisions regarding his care and
control, education, health, and religion. n1
Definition: The "legal custodian" of a child is one who has been given legal custody by court order. n2
"Legal custody" refers to the responsibility for making major decisions affecting the child's welfare, n3 and is a status
that may be held by a parent who does not have "physical custody," which refers to the responsibility for the physical
care and immediate supervision of the child. n4
Practice Guide: Recognizing that children are not to be treated as property and apportioned between parents, some
courts no longer use the term "custody," but, rather, "parental rights and responsibilities," and no longer adjudicate cus-
tody and visitation, but rather divide parenting time. n5
There is a fundamental n6 constitutional right to the custody of one's children. n7 The custody, care and nurture of the
child reside first in the parents, whose primary function and freedom include preparation for obligations the state can
neither supply nor hinder. n8 The legal custody of a minor is in the parents, or the surviving parent, unless there has been
a court adjudication awarding custody to a third person. n9
Since the right of parents to the custody of their minor children is both a natural and a legal right, n10 the law should not
disturb the parent-child relationship except for the strongest reasons, n11 and only upon a clear showing of a parent's
gross misconduct or unfitness, or of other extraordinary circumstances affecting the welfare of the child. n12
The parental right to custody is unimpaired by the fact that the parent is a nonresident, n13 or that the parent is under age.
n14
Even the appointment of a guardian for the child does not always deprive the parents of custody. n15
What action is in the best interest of the child always governs decisions involving custodial matters. n16 Matters involv-
ing the custody or best interests of a child are equitable in nature and are not for determination by a jury. n17
FOOTNOTES:
n1 Burge v. City and County of San Francisco, 41 Cal. 2d 608, 262 P.2d 6 (1953).
"Child-custody determination" means a judgment, decree, or other order of a court providing for the legal custody, physical custody, or visi-
tation with respect to a child. U.C.C.J.E.A. § 102(3).
As to the rights and duties of a custodian in raising a child, generally, see 24A Am. Jur. 2d, Divorce and Separation § 930.
Page 66
As to jurisdiction in a child custody dispute in the context of a divorce or separation, see 24A Am. Jur. 2d, Divorce and Separation §§ 944 et
seq.
n2 Stills v. Johnson, 272 Ga. 645, 533 S.E.2d 695 (2000), cert. denied, 531 U.S. 1087, 121 S. Ct. 804, 148 L. Ed. 2d 691 (2001).
n3 D.J. v. P.C., 36 P.3d 663 (Alaska 2001); Chandler v. Bishop, 142 N.H. 404, 702 A.2d 813 (1997).
n4 D.J. v. P.C., 36 P.3d 663 (Alaska 2001); Matter of K.M., 280 Mont. 256, 929 P.2d 870 (1996).
n5 N.A.H. v. S.L.S., 9 P.3d 354 (Colo. 2000).
n6 Boswell v. Boswell, 352 Md. 204, 721 A.2d 662 (1998); Matter of Paternity of Vainio, 284 Mont. 229, 943 P.2d 1282 (1997).
n7 Young v. County of Fulton, 160 F.3d 899 (2d Cir. 1998); In re C.R.C., 2001 ND 83, 625 N.W.2d 533 (N.D. 2001); In re Samantha M.,
205 W. Va. 383, 518 S.E.2d 387 (1999).
n8 Troxel v. Granville, 530 U.S. 57, 120 S. Ct. 2054, 147 L. Ed. 2d 49 (2000); Stanley v. Illinois, 405 U.S. 645, 92 S. Ct. 1208, 31 L. Ed. 2d
551 (1972).
n9 Herrera v. Herrera, 409 S.W.2d 395 (Tex. 1966).
n10 Arizona State Dept. of Public Welfare v. Barlow, 80 Ariz. 249, 296 P.2d 298 (1956); In re Ko.W., 774 A.2d 296 (D.C. 2001); Moss v.
Vest, 74 Idaho 328, 262 P.2d 116 (1953); Department of Revenue v. C.M.J., 432 Mass. 69, 731 N.E.2d 501 (2000); In re C.R.C., 2001 ND
83, 625 N.W.2d 533 (N.D. 2001); In re Sweet, 1957 OK 250, 317 P.2d 231 (Okla. 1957).
n11 Wilson v. Mitchell, 48 Colo. 454, 111 P. 21 (1910); In re Ko.W., 774 A.2d 296 (D.C. 2001); State ex rel. Lombardo v. Miller, 232 La.
617, 94 So. 2d 888 (1957); Paton v. Paton, 363 Mich. 192, 108 N.W.2d 876 (1961); Application of Carlson, 181 Neb. 877, 152 N.W.2d 98,
25 A.L.R.3d 1 (1967).
n12 In re C.R.C., 2001 ND 83, 625 N.W.2d 533 (N.D. 2001); Skeadas v. Sklaroff, 84 R.I. 206, 122 A.2d 444 (1956).
As to loss or forfeiture of right to custody, see § 36.
n13 Stafford v. Stafford, 299 Ill. 438, 132 N.E. 452, 20 A.L.R. 827 (1921).
n14 Coats v. Benton, 1920 OK 363, 80 Okla. 93, 194 P. 198, 19 A.L.R. 1038 (1920).
n15 39 Am. Jur. 2d, Guardian and Ward § 98.
n16 Montenegro v. Diaz, 26 Cal. 4th 249, 109 Cal. Rptr. 2d 575, 27 P.3d 289 (2001); Ireland v. Ireland, 246 Conn. 413, 717 A.2d 676
(1998); In re Paternity of IC, 971 P.2d 603 (Wyo. 1999).
n17 Stitham v. Henderson, 2001 ME 52, 768 A.2d 598 (Me. 2001).
SUPPLEMENT:
Research References
West's Key Number Digest, Constitutional Law [westkey]84.1
West's Key Number Digest, Constitutional Law [westkey]274(3.1)

Page 67
West's Key Number Digest, Constitutional Law [westkey]274(5)
A.L.R. Index: Annulment of Marriage
A.L.R. Index: Divorce and Separation
A.L.R. Index: Religion and Religious Societies
A.L.R. Index: Visits and Visitation
A.L.R. Digest: Divorce and Separation §§ 118, 118.7
C.J.S., Parent and Child §§ 14, 28
Child Custody Determination on Termination of Marriage, 34 Am. Jur. Proof of Facts 2d 407
Change in Circumstances Justifying Modification of Child Visitation Rights, 15 Am. Jur. Proof of Facts 2d 659
Change in Circumstances Justifying Modification of Child Custody Order, 6 Am. Jur. Proof of Facts 2d 499
Relocation of Children by the Custodial Parent, 65 Am. Jur. Trials 127
Benning, A Guide for Lower Courts in Factoring Religion into Child Custody Disputes, 45 Drake L. Rev. 733 (1997)
Cherny and Matthew W. Perkins, Religious Issues in Child Custody Proceedings; Separation of Church and State in De-
termining the Best Interests of the Child, 41 Boston B. J. 6 (1997)
Drobac, For the Sake of the Children: Court Consideration of Religion in Child Custody Cases, 50 Stan. L. Rev. 1609
(1998)
Roberts, Religious Issues as a Factor in Missouri Child Custody Determinations, 55 J. Mo. B. 134 (1999)
Smith, Religious Visitation Constraints on the Noncustodial Parent: The Need For National Application of a Uniform
Compelling Interest Test, 71 Ind. L.J. 815 (1996)
Clark, Hornbook on Domestic Relations, 2d
Crouch, Family Law Checklists
Elrod, Child Custody Practice and Procedure
Haralambie, Handling Child Custody, Abuse, and Adoption Cases
Krause, Elrod, Garrison Oldham, Family Law: Cases, Comments and Questions, 4th
Page 68
Cases
Declaratory judgment sought by mother against county and county social services agency, declaring that agency's find-
ings regarding her allegations that father had abused minor daughter were null and void and could not be relied upon for
any purpose, was barred by Rooker"Feldman doctrine as an indirect attack on custody determination already adjudi-
cated in state court, which had deferred to agency findings that abuse allegations were unfounded and based its custody
determination on those findings. Marran v. Marran, 376 F.3d 143 (3d Cir. 2004).
Children, who were only seven and four years of age, respectively, had not yet attained an age or degree of maturity
which would make it appropriate to take their views into account in determining whether they should be returned to
France, pursuant to the Hague Convention on the Civil Aspects of International Child Abduction, as implemented by the
ICARA, after mother wrongfully removed them to the United States. Antunez-Fernandes v. Connors-Fernandes, 259 F.
Supp. 2d 800 (N.D. Iowa 2003).
In general, child custody and visitation orders in family court proceedings are subject to the trial court's broad discre-
tion, and an abuse of discretion is found only where the court exceeds the bounds of reason. In re Marriage of David and
Martha M., 140 Cal. App. 4th 96, 44 Cal. Rptr. 3d 388 (2d Dist. 2006), opinion modified, 2006 WL 1680065 (Cal. App.
2d Dist. 2006).
A judge has the equitable authority to order visitation between a child and a parent whose parental rights have been ter-
minated, where such visitation is in the child's best interest. In re Adoption of Ilona, 459 Mass. 53, 944 N.E.2d 115
(2011).
Natural parents have a fundamental right to the care and custody of their children. In re Adoption of Pushcar, 110 Ohio
St. 3d 332, 2006-Ohio-4572, 853 N.E.2d 647 (2006).
A parent's alienation from her or his other children does not mean it would be detrimental to award custody of the child
in question to the parent, in which event custody may be awarded to a nonparent. R.C. § 2151.23(A)(2). In re B.P., 191
Ohio App. 3d 518, 2010-Ohio-6458, 946 N.E.2d 818 (4th Dist. Adams County 2010).
The best interests of the child must be a paramount consideration of the trial court when considering custody and visita-
tion. Foshee v. Foshee, 2010 OK 85, 247 P.3d 1162 (Okla. 2010).
REFERENCE: U.C.C.J.A. § 102(3)

West's Key Number Digest, Child Custody [westkey]1 to 88, 100, 101, 122, 126, 127, 140, 141, 149, 175 to 178, 181,
182, 185, 187, 188, 192, 200, 203, 204, 217, 219, 263, 270 to 274, 282, 283, 287, 336, 394, 403, 452, 456 to 460, 484,
549 to 662, 775, 823
West's Key Number Digest, Parent and Child [westkey]5(4)
13B Am. Jur. Legal Forms 2d, Parent and Child § 191:63
Nonresidence as affecting one's right to custody of child, 15 A.L.R. 2d 432.
Page 69
28 of 145 DOCUMENTS

Parent and Child

§ 27 Limitations on parents' right to custody
The right of a parent to the custody and control of his child is not an absolute one. n1 Although some courts regard the
right of a fit and proper parent to his child's custody as being somewhat in the nature of a property right, and as being
paramount, in a sense, to the child's theoretical welfare and best interests, n2 the usual view is that the right cannot be
dealt with as though it were a vested property right. n3 Rather, it is in the nature of a trust imposed on the parent for the
child's benefit, n4 and must yield to the superior right of the state whenever the child's welfare requires it. n5 However, the
right of even neglectful parents to physical custody continues until extinguished by judicial process. n6
FOOTNOTES:
n1 V.C. v. M.J.B., 163 N.J. 200, 748 A.2d 539, 80 A.L.R.5th 663 (2000), cert. denied, 531 U.S. 926, 121 S. Ct. 302, 148 L. Ed. 2d 243
(2000); In re Ko.W., 774 A.2d 296 (D.C. 2001); Ex parte Badger, 286 Mo. 139, 226 S.W. 936, 14 A.L.R. 286 (1920); Lessard v. Great Falls
Woolen Co., 83 N.H. 576, 145 A. 782, 63 A.L.R. 1142 (1929); Adams v. Tessener, 354 N.C. 57, 550 S.E.2d 499 (2001); In re C.R.C., 2001
ND 83, 625 N.W.2d 533 (N.D. 2001); Haglund v. Egge, 41 S.D. 433, 171 N.W. 212 (1919); Lippincott v. Lippincott, 97 N.J. Eq. 517, 128
A. 254 (Ct. Err. & App. 1925).
n2 Turner v. Turner, 167 Cal. App. 2d 636, 334 P.2d 1011 (2d Dist. 1959).
n3 People ex rel. Nabstedt v. Barger, 3 Ill. 2d 511, 121 N.E.2d 781, 45 A.L.R.2d 1372 (1954); Collins v. Gilbreath, 403 N.E.2d 921 (Ind. Ct.
App. 4th Dist. 1980); Application of Parker, 208 Or. 680, 302 P.2d 717 (1956); Kenner v. Kenner, 139 Tenn. 211, 201 S.W. 779 (1918);
Stringfellow v. Somerville, 95 Va. 701, 29 S.E. 685 (1898); Lippincott v. Lippincott, 97 N.J. Eq. 517, 128 A. 254 (Ct. Err. & App. 1925).
n4 Collins v. Gilbreath, 403 N.E.2d 921 (Ind. Ct. App. 4th Dist. 1980); Hibbette v. Baines, 78 Miss. 695, 29 So. 80 (1900); Kenner v. Ken-
ner, 139 Tenn. 211, 201 S.W. 779 (1918); Lippincott v. Lippincott, 97 N.J. Eq. 517, 128 A. 254 (Ct. Err. & App. 1925).
n5 Dungan v. Dungan, 239 La. 733, 119 So. 2d 843 (1960); Bryant v. Brown, 151 Miss. 398, 118 So. 184, 60 A.L.R. 1325 (1928); State ex
rel. Cave v. Tincher, 258 Mo. 1, 166 S.W. 1028 (1914).
As to termination of the parent-child relationship, see § 16 (Termination of relationship).
n6 Wicks v. Cox, 146 Tex. 489, 208 S.W.2d 876, 4 A.L.R.2d 1 (1948).

182, 185, 187, 188, 192, 200, 203, 204, 217, 219, 263, 270 to 274, 282, 283, 287, 336, 394, 403, 452, 456 to 460, 484,
549 to 662, 775, 823
Page 70

Award of custody of child where contest is between child's mother and grandparent, 29 A.L.R. 3d 366 § 6[b].
Award of custody of child where contest is between child's father and grandparent, 25 A.L.R. 3d 7.
Page 71
29 of 145 DOCUMENTS

Parent and Child

Present statutes in many jurisdictions make the parents joint guardians of their children with equal rights of custody and
control. n1 Under such a statute, the parents share equally in the parent-child relationship n2 and they stand in equality in a
custody contest. n3 Neither parent has priority in an initial custody determination. n4 The right of each is independent of
that of the other and such right continues after their separation. n5 Under a statute giving the parents a joint right to care
and custody and denying any paramount right to either, a mother caring for her child in her husband's absence acts in
her own right, and not under any authority delegated from him. n6 The general rule that, on the death of either parent, the
surviving parent is entitled to the custody of the children n7 is given express statutory recognition in some jurisdictions. n8
FOOTNOTES:
n1 § 21.
n2 Bedard v. Notre Dame Hospital, 89 R.I. 195, 151 A.2d 690 (1959).
n3 In re H -- -- -- , 24 Ohio Op. 2d 334, 92 Ohio L. Abs. 436, 192 N.E.2d 683 (Juv. Ct. 1963).
n4 Ex parte Byars, 794 So. 2d 345 (Ala. 2001).
n5 Boardman v. Boardman, 135 Conn. 124, 62 A.2d 521, 13 A.L.R.2d 295 (1948).
n6 Illingworth v. Madden, 135 Me. 159, 192 A. 273, 110 A.L.R. 1090 (1937).
n7 § 20.
n8 Risting v. Sparboe, 179 Iowa 1133, 162 N.W. 592 (1917); Leclerc v. Leclerc, 85 N.H. 121, 155 A. 249, 74 A.L.R. 1348 (1931).
SUPPLEMENT:
Cases
Father of minor child had "rights of custody" as to that child, under Panamanian law, which was law of child's habitual
residence at time of his removal to United States by mother, for purpose of Hague Convention on the Civil Aspects of
International Child Abduction, as doctrine of patria potestas which was specifically incorporated into custody agree-
ment, gave father custodial rights greater than mere visitation rights. Lalo v. Malca, 318 F. Supp. 2d 1152 (S.D. Fla.
2004).
Page 72

182, 185, 187, 188, 192, 200, 203, 204, 217, 219, 263, 270 to 274, 282, 283, 287, 336, 394, 403, 452, 456 to 460, 484,
549 to 662, 775, 823
West's Key Number Digest, Child Custody [westkey]287, 549
Page 73
30 of 145 DOCUMENTS

Parent and Child

§ 29 Custody disputes between parents
In a custody dispute between parents, a court should strive to impose as little change from an intact two-parent family as
possible after the parents separate. n1 In a custody dispute between father and mother, the modern view is that neither has
a superior right to custody. n2 A statute providing that no award of custody shall be made solely on the basis of the par-
ent's gender does not prevent consideration of gender in a custody award; the statute simply prohibits gender from being
the "sole" basis of a custody award. n3 Some courts, however, regard the mother as presumptively the more suitable cus-
todian, and therefore, other things being equal, award custody to her for the sake of the child's welfare, especially in the
case of children of "tender years." n4
No precise formula exists for making a child custody determination, but the decision should be balanced and methodi-
cal. n5
FOOTNOTES:
n1 Mosley v. Figliuzzi, 113 Nev. 51, 930 P.2d 1110 (1997).
n2 Fountain v. Fountain, 83 A.D.2d 694, 442 N.Y.S.2d 604 (3d Dep't 1981), order aff'd, 55 N.Y.2d 838, 447 N.Y.S.2d 703, 432 N.E.2d 596
(1982); Devine v. Devine, 398 So. 2d 697 (Ala. Civ. App. 1981); In re Marriage of Carney, 24 Cal. 3d 725, 157 Cal. Rptr. 383, 598 P.2d 36,
3 A.L.R.4th 1028 (1979); Bazemore v. Davis, 394 A.2d 1377 (D.C. 1978); Bregman v. Bregman, 388 So. 2d 1285 (Fla. Dist. Ct. App. 3d
Dist. 1980); In re Marriage of Hanson, 112 Ill. App. 3d 564, 68 Ill. Dec. 268, 445 N.E.2d 912 (5th Dist. 1983); Matter of Adoption of
Thomas, 431 N.E.2d 506 (Ind. Ct. App. 4th Dist. 1982); In re Marriage of Murphy, 592 N.W.2d 681 (Iowa 1999); Grubbs v. Grubbs, 5 Kan.
App. 2d 694, 623 P.2d 546 (1981); Dardar v. Dardar, 417 So. 2d 502 (La. Ct. App. 1st Cir. 1982); McAndrew v. McAndrew, 39 Md. App. 1,
382 A.2d 1081 (1978); In re Marriage of Shepherd, 588 S.W.2d 174 (Mo. Ct. App. S.D. 1979); Bier v. Sherrard, 191 Mont. 215, 623 P.2d
550 (1981); Fleharty v. Fleharty, 202 Neb. 245, 274 N.W.2d 871 (1979); Arnold v. Arnold, 95 Nev. 951, 604 P.2d 109 (1979); Lemay v.
Lemay, 109 N.H. 217, 247 A.2d 189 (1968); Matter of Marriage of Van Dyke, 48 Or. App. 965, 618 P.2d 465 (1980); Hugo v. Hugo, 288
Pa. Super. 1, 430 A.2d 1183 (1981); Fuerstenberg v. Fuerstenberg, 1999 SD 35, 591 N.W.2d 798 (S.D. 1999); Fettig v. Fettig, 619 S.W.2d
262 (Tex. Civ. App. Tyler 1981); In re Marriage of Janovich, 30 Wash. App. 169, 632 P.2d 889 (Div. 1 1981); Gibson v. Gibson, 172 W.
Va. 183, 304 S.E.2d 336 (1983).
n3 Pace v. Pace, 2001 WY 43, 22 P.3d 861 (Wyo. 2001).
n5 Zepeda v. Zepeda, 2001 SD 101, 632 N.W.2d 48 (S.D. 2001).
SUPPLEMENT:
Cases
Page 74
District court abused its discretion in manner in which it determined that returning child to Argentina would not consti-
tute grave risk within meaning of Hague Convention on the Civil Aspects of International Child Abduction, in that it did
not consider totality of circumstances with respect to mother's allegations of child sexual abuse, and it failed to consider
most of mother's evidence related to inaction of Argentine police. In re Application of Adan, 437 F.3d 381 (3d Cir.
2006).
Trial court had subject matter jurisdiction over paternity action filed by mother who was resident of foreign country,
even though child was also resident of foreign country and there was no indication that foreign country declined to exer-
cise jurisdiction, where custody was not an issue because putative father agreed that mother should be awarded primary
permanent residency of child. West's F.S.A. § 61.514(1)(b). Sanchez v. Fernandez, 915 So. 2d 192 (Fla. Dist. Ct. App.
4th Dist. 2005).
Order approving petition filed by mother and mother's same-sex partner for joint custody of child, who was born during
the relationship as result of artificial insemination of mother with donor semen, with parenting time to partner was void
and, therefore, was legal nullity that was subject to mother's collateral attack; trial court lacked statutory authority to
grant petition that did not strictly comply with statutory requirements for stepparent adoption. West's A.I.C. 31-17-2-3,
31-19-15-2. M.S. v. C.S., 938 N.E.2d 278 (Ind. Ct. App. 2010).
The presumption that custody should be granted to the parent who provided most of the primary care during the child's
life, no longer exists. MCA 40-4-212. In re Marriage of Robison, 2002 MT 207, 311 Mont. 246, 53 P.3d 1279 (2002).

182, 185, 187, 188, 192, 200, 203, 204, 217, 219, 263, 270 to 274, 282, 283, 287, 336, 394, 403, 452, 456 to 460, 484,
549 to 662, 775, 823
West's Key Number Digest, [westkey]550 to 662
Custodial parent's relocation as grounds for change of custody, 70 A.L.R. 5th 377.
Validity and construction of provisions for arbitration of disputes as to alimony or support payments or child visitation
or custody matters, 38 A.L.R. 5th 69.
Propriety of awarding custody of child to parent residing or intending to reside in foreign country, 20 A.L.R. 4th 677.
Modern status of maternal preference rule or presumption in child custody cases, 70 A.L.R. 3d 262.
Page 75
31 of 145 DOCUMENTS

Parent and Child

§ 30 Factors affecting choice
The rule that the best interests and welfare of the child govern the right to custody applies in contests between the father
and the mother of the child. n1 A court determining custody considers only those facts that directly affect the child's well-
being, n2 and must avoid assigning too much weight to any one particular factor in determining child custody. n3 It is not
necessary to find one parent unfit to justify a custody ruling in favor of the other parent. n4 In awarding joint custody, the
most important factor to consider is the capacity of the parents to communicate and to reach shared decisions affecting
the child's welfare. n5
The financial condition of the respective parents may be considered. n6 The mere fact of a parent's nonmarital relation-
ship is insufficient to deny him or her custody of the children. n7 One parent's misconduct toward the other will not pre-
clude an award of custody to the offender if the child's best interest is thereby served. n8 A subsequent interracial mar-
riage by the mother is not a compelling reason to warrant a court's denying her the custody of her children. n9 Interfer-
ence by a child's custodian with the visitation rights of the noncustodial parent may constitute a change of circumstances
justifying a change in custody where such change is deemed to be in the best interest of the child. n10 A parent's physical
disability in the form of paralysis does not render the parent per se unfit to have custody or necessarily have an adverse
effect on the child so as to warrant awarding custody to the other parent. n11 It is an abuse of discretion to transfer cus-
tody on the belief that religious affiliation furnished by one parent would be better for the child than the lack of a reli-
gious environment in the other parent's home. n12 Emotional disturbance of a parent adversely affecting a child is ground
for a custody change. n13 The age of a parent may be considered as a factor in child custody proceedings, n14 as may the
preference of the child. n15
FOOTNOTES:
n2 Duffus v. Duffus, 932 P.2d 777 (Alaska 1997).
n3 Brownson v. Allen, 134 Idaho 60, 995 P.2d 830 (2000).
n4 In re Marriage of Cotton, 103 Ill. 2d 346, 83 Ill. Dec. 143, 469 N.E.2d 1077 (1984); Allen v. Allen, 78 Wis. 2d 263, 254 N.W.2d 244
(1977).
n5 Barton v. Hirshberg, 137 Md. App. 1, 767 A.2d 874 (2001); Waller v. Waller, 754 So. 2d 1181 (Miss. 2000).
As to joint custody, generally, see 24A Am. Jur. 2d, Divorce and Separation § 940.

Page 76
n8 Fantony v. Fantony, 21 N.J. 525, 122 A.2d 593 (1956); J. B. v. A. B., 161 W. Va. 332, 242 S.E.2d 248 (1978).
Related References:
Protecting New York's children: An argument for the creation of a rebuttable presumption against awarding a spouse
abuser custody of a child. 60 Albany LR 4:1345 (1997).
n10 24A Am. Jur. 2d, Divorce and Separation §§ 991, 992.
n11 Hatz v. Hatz, 97 A.D.2d 629, 468 N.Y.S.2d 943 (3d Dep't 1983); Warnick v. Couey, 359 So. 2d 801 (Ala. Civ. App. 1978); In re Mar-
riage of Levin, 102 Cal. App. 3d 981, 162 Cal. Rptr. 757 (2d Dist. 1980); Perry v. Perry, 33 N.C. App. 139, 234 S.E.2d 449 (1977).
n14 Hammond v. Hammond, 474 So. 2d 1140 (Ala. Civ. App. 1985); In Interest of Rice, 236 N.W.2d 40 (Iowa 1975); Smith v. Smith, 614
So. 2d 394 (Miss. 1993); Phelps v. Phelps, 337 N.C. 344, 446 S.E.2d 17, 34 A.L.R.5th 751 (1994); Bah v. Bah, 668 S.W.2d 663 (Tenn. Ct.
App. 1983); Puckett v. Puckett, 76 Wash. 2d 703, 458 P.2d 556 (1969).
SUPPLEMENT:
Cases
If handing over custody of abducted child to abusive parent creates "grave risk of harm" to child, in sense that parent
may with some nonnegligible probability injure child, child should not be handed over, however severely law of par-
ent's country might punish such behavior; in such case, any order divesting abducting parent of custody must be condi-
tioned on child's being kept out of custody of abusing parent until merits of custody dispute between parents can be re-
solved by court in abusive parent's country. Van De Sande v. Van De Sande, 431 F.3d 567 (7th Cir. 2005).
Mother did not prove by clear and convincing evidence that return of child, whom mother removed to United States
from France, would expose child to grave risk of psychological harm, as required to support affirmative defense to fa-
ther's petition for return of child following parties' divorce in France, under Hague Convention and International Child
Abduction Remedies Act (ICARA); mother did not show that father was abusive to child or that conditions in which she
would live in France would cause psychological harm, and there was no evidence that child's accommodations in France
would place her in an intolerable situation. Neng Nhia Yi Ly v. Heu, 294 F. Supp. 2d 1062 (D. Minn. 2003).
Mother established by preponderance of the evidence that seven-year-old child was settled in new environment in
United States, as required to state effective affirmative defense to father's petition for child's return to France following
mother's removal of child after parties' divorce in France, under Hague Convention and International Child Abduction
Remedies Act (ICARA); child lived continuously in same city in United States since her removal and had only vague
memories of France, child attended same school regularly and was thriving in academic and extra-curricular activities,
child had developed strong bond with step-father, step-siblings, and step-fathers' extended family in area, and child had
no apparent ties to France other than father's residence there. Neng Nhia Yi Ly v. Heu, 294 F. Supp. 2d 1062 (D. Minn.
2003).
Mother who removed child from France did not show by preponderance of the evidence that child, who was seven years
of age, was of such age and maturity that it would be appropriate for court to give weight to her preferences in deciding
father's petition for return of child to France under Hague Convention and International Child Abduction Remedies Act
Page 77
(ICARA) after mother removed child to United States following parties' divorce in France. Neng Nhia Yi Ly v. Heu,
294 F. Supp. 2d 1062 (D. Minn. 2003).
In deciding child custody issues, the child's best interest is of transcendent importance. Gordon v. Gordon, 174 Md.
App. 583, 923 A.2d 149 (2007).
The Albright factors, used to determine what is in the best interest of the child in regard to custody, are: (1) age, health,
and sex of the child; (2) a determination of the parent who had the continuity of care prior to the separation; (3) which
parent has the best parenting skills and which parent has the willingness and capacity to provide primary child care; (4)
the employment of the parent and responsibilities of that employment; (5) the physical and mental health and age of the
parents; (6) the emotional ties of parent and child; (7) the moral fitness of the parents; (8) the home, school, and com-
munity record of the child; (9) the preference of the child at the age sufficient to express a preference by law; (10) the
stability of home environment and employment of each parent; and (11) other factors relevant to the parent-child rela-
tionship. White v. White, 26 So. 3d 342 (Miss. 2010).
In child custody cases, in addition to the age of the child, the other factors to be considered are as follows: health and
sex of the child; a determination of the parent that has had the continuity of care prior to the separation; which has the
best parenting skills and which has the willingness and capacity to provide primary child care; the employment of the
parent and responsibilities of that employment; physical and mental health and age of the parents; emotional ties of par-
ent and child; moral fitness of parents; the home, school and community record of the child; the preference of the child
at the age sufficient to express a preference by law; stability of home environment and employment of each parent, and
other factors relevant to the parent-child relationship. Lowrey v. Lowrey, 25 So. 3d 274 (Miss. 2009).
Trial court's decision to award mother sole custody of child had sound and substantial basis; record was replete with ex-
amples of father's demonstrated inability to act and communicate in mature and civilized fashion when it came to rela-
tionship with mother, such that joint custody was not a workable option. Golub v. Ganz, 22 A.D.3d 919, 802 N.Y.S.2d
526 (3d Dep't 2005).
There is an overlap between statutory child custody factor which considers sufficiency and stability of each parent's
home environment, impact of extended family, length of time child has lived in each parent's home, and desirability of
maintaining continuity in child's home and community, and factor which considers willingness and ability of each par-
ent to facilitate and encourage a close and continuing relationship between the other parent and the child; latter factor
uses a forward-looking approach to the stability of the family unit, its interrelations and environment, versus the back-
ward-looking former factor. NDCC 14-09-06.2(1)(d, e) (2008). Marsden v. Koop, 2010 ND 196, 789 N.W.2d 531 (N.D.
2010).
Party who willfully alienates a child from the other parent may not be awarded custody based on that alienation. Wolt v.
Wolt, 2010 ND 26, 778 N.W.2d 786 (N.D. 2010).

182, 185, 187, 188, 192, 200, 203, 204, 217, 219, 263, 270 to 274, 282, 283, 287, 336, 394, 403, 452, 456 to 460, 484,
549 to 662, 775, 823
Custodial parent's homosexual or lesbian relationship with third person as justifying modification of child custody or-
der, 65 A.L.R. 5th 591.
Age of parent as factor in awarding custody, 34 A.L.R. 5th 57.
Child custody and visitation rights of person infected with AIDS, 86 A.L.R. 4th 211.
Page 78
Propriety of awarding custody of child to parent residing or intending to reside in foreign country, 20 A.L.R. 4th 677.
Race as factor in custody award or proceedings, 10 A.L.R. 4th 796.
Parent's physical disability or handicap as factor in custody award or proceedings, 3 A.L.R. 4th 1044.
Page 79
32 of 145 DOCUMENTS

Parent and Child

§ 31 Custody agreements between parents
While some opinions intimate the contrary, n1 there is authority that contracts between parents as to the custody of their
children is binding on the parties n2 until it is judicially determined that the child's welfare requires some other disposi-
tion. n3 They are not, however, binding on the courts, since the child's welfare remains the controlling consideration. n4
Considerable weight will be given to stipulations regarding child custody entered with the benefit of counsel, but the
paramount consideration is the welfare and best interests of the children. n5
A parent who, in the best interest of the child, relinquishes custody in good faith because he or she is temporarily unable
to provide for the child should be able to regain custody by proving that the condition which required relinquishment
has been resolved. n6 An exception may be applied if interim custody results in the child becoming totally integrated into
the home of the parent with temporary custody. n7 The courts also consider the present fitness of the parent in determin-
ing that custody is n8 or is not n9 to be regained by the parent.
FOOTNOTES:
n1 Kimberling v. Rogers, 223 Ark. 348, 265 S.W.2d 952 (1954); Com. ex rel. Teitelbaum v. Teitelbaum, 160 Pa. Super. 286, 50 A.2d 713
(1947).
n2 Crocker v. Crocker, 195 F.2d 236 (10th Cir. 1952); Edleson v. Edleson, 179 Ky. 300, 200 S.W. 625, 2 A.L.R. 689 (1918).
A promise affecting the right of custody of a minor child is unenforceable on grounds of public policy unless the disposition as to custody is
consistent with the best interest of the child. Restatement Second, Contracts § 191.
n3 Crocker v. Crocker, 195 F.2d 236 (10th Cir. 1952).
When the subject matter of a stipulated agreement is child custody, the agreement must, in addition to meeting minimal contractual require-
ments, also meet the best interests of the children. Crane v. Crane, 986 P.2d 881 (Alaska 1999).
n5 Frauenshuh v. Giese, 599 N.W.2d 153 (Minn. 1999).
n6 In re Custody of Saloga, 96 Ill. App. 3d 661, 52 Ill. Dec. 128, 421 N.E.2d 991 (2d Dist. 1981); Carter v. Carter, 1982 OK 123, 653 P.2d
207, 35 A.L.R.4th 57 (Okla. 1982).
n7 Carter v. Carter, 1982 OK 123, 653 P.2d 207, 35 A.L.R.4th 57 (Okla. 1982).
n8 Grumlin v. Gray, 246 Ark. 635, 439 S.W.2d 290 (1969); In re Custody of Saloga, 96 Ill. App. 3d 661, 52 Ill. Dec. 128, 421 N.E.2d 991
(2d Dist. 1981).
Page 80
n9 Willette v. Bannister, 351 So. 2d 605 (Ala. Civ. App. 1977).

182, 185, 187, 188, 192, 200, 203, 204, 217, 219, 263, 270 to 274, 282, 283, 287, 336, 394, 403, 452, 456 to 460, 484,
549 to 662, 775, 823
West's Key Number Digest, Child Custody [westkey]34, 140, 263, 570
Right of parent to regain custody of child after temporary conditional relinquishment of custody, 35 A.L.R. 4th 61.
Joint parenting agreement -- General form. 13B Am. Jur. Legal Forms 2d, Parent and Child § 191:63.
Page 81
33 of 145 DOCUMENTS

Parent and Child

§ 32 Rights of parents as against others
In a contest between a parent and a third party, the paramount consideration is, as a rule, the best interest and welfare of
the child, and all other considerations are subordinate, n2 though there is authority that the best interest of the child is not
the proper standard in custody disputes between a natural parent and a third party. n3 One who stands in loco parentis to a
child has standing to assert custodial rights. n4 A parent is entitled to the custody of his child as against one who is not its
parent, and this right is so moving and cogent that it is forfeitable only by misconduct or other factors which substan-
tially affect the child's welfare. n5
Where the custody contest is between a parent and a nonparent, the parent is entitled to custody where he has not aban-
doned the child and is not unfit for custody, and there are no other extraordinary circumstances requiring that he be de-
prived of custody. n6 Custody cannot be awarded to the nonparent unless it is affirmatively shown that the parent is unfit
n7
or has forfeited parental rights, n8 is unable to care properly for the child, n9 or that there are other extraordinary circum-
stances requiring that the parent be denied custody. n10
According to another view, however, the rights of even a fit parent are merely presumptive and must yield when the
best interest of the child require it. n11 Under this view, the sole inquiry must be to determine which custodian would
serve the best interest of the child. n12 Under this view, custody can be awarded to a nonparent, even though this means
denying it to a parent who has in no way been found unfit. n13 In a contest between a parent and a nonparent, the question
as to the custody which would best subserve the welfare and interest of the child rests largely within the sound discre-
tion of the trial court. n14
FOOTNOTES:
n1 T.B. v. L.R.M., 786 A.2d 913 (Pa. 2001).
n2 Custody of a Minor, 389 Mass. 755, 452 N.E.2d 483 (1983); Tyrrell v. Tyrrell, 47 N.Y.2d 937, 419 N.Y.S.2d 969, 393 N.E.2d 1041
(1979); Com. ex rel. Holschuh v. Holland-Moritz, 448 Pa. 437, 292 A.2d 380 (1972); Patrick v. Byerley, 228 Va. 691, 325 S.E.2d 99 (1985);
Mawhinney v. Mawhinney, 66 Wis. 2d 679, 225 N.W.2d 501 (1975).
n3 Barstad v. Frazier, 118 Wis. 2d 549, 348 N.W.2d 479 (1984).
n4 Bodwell v. Brooks, 141 N.H. 508, 686 A.2d 1179 (1996); B.A. v. E.E. ex rel. C.E., 559 Pa. 545, 741 A.2d 1227 (1999); Rubano v. Di-
Cenzo, 759 A.2d 959 (R.I. 2000).
As to persons in loco parentis, generally, see § 9.

Page 82
n5 Raysor v. Gabbey, 57 A.D.2d 437, 395 N.Y.S.2d 290 (4th Dep't 1977); In re Perales, 52 Ohio St. 2d 89, 6 Ohio Op. 3d 293, 369 N.E.2d
1047 (1977); Com. ex rel. Holschuh v. Holland-Moritz, 448 Pa. 437, 292 A.2d 380 (1972); Wilkerson v. Wilkerson, 214 Va. 395, 200
S.E.2d 581 (1973); Barstad v. Frazier, 118 Wis. 2d 549, 348 N.W.2d 479 (1984).
As to third-party custody in a divorce, see 24A Am. Jur. 2d, Divorce and Separation § 943.
n7 Raysor v. Gabbey, 57 A.D.2d 437, 395 N.Y.S.2d 290 (4th Dep't 1977); Jackson v. Fitzgerald, 185 A.2d 724, 98 A.L.R.2d 322 (Mun. Ct.
App. D.C. 1962); Moffitt v. Moffitt, 242 Cal. App. 2d 580, 51 Cal. Rptr. 683 (3d Dist. 1966); Peck v. Shierling, 222 Ga. 60, 148 S.E.2d 491
(1966); State ex rel. Lombardo v. Miller, 232 La. 617, 94 So. 2d 888 (1957); Custody of a Minor, 389 Mass. 755, 452 N.E.2d 483 (1983); In
re Gossette, 42 Ohio St. 2d 143, 71 Ohio Op. 2d 117, 326 N.E.2d 675 (1975); Sutton v. Menges, 186 Va. 805, 44 S.E.2d 414 (1947); Barstad
v. Frazier, 118 Wis. 2d 549, 348 N.W.2d 479 (1984).
n8 Application of Carlson, 181 Neb. 877, 152 N.W.2d 98, 25 A.L.R.3d 1 (1967).
n9 In re Wakefield, 365 Mo. 415, 283 S.W.2d 467 (1955); Barstad v. Frazier, 118 Wis. 2d 549, 348 N.W.2d 479 (1984).
n10 Sorentino v. Family and Children's Soc. of Elizabeth, 74 N.J. 313, 378 A.2d 18 (1977), judgment aff'd, 77 N.J. 483, 391 A.2d 497
(1978); Barstad v. Frazier, 118 Wis. 2d 549, 348 N.W.2d 479 (1984).
n12 Borsdorf v. Mills, 49 Ala. App. 658, 275 So. 2d 338 (Civ. App. 1973); Matter of Kowalzek, 37 N.C. App. 364, 246 S.E.2d 45 (1978),
appeal dismissed, review denied, 295 N.C. 734, 248 S.E.2d 863 (1978); In re Snellgrose, 432 Pa. 158, 247 A.2d 596 (1968).
Once a third party has been determined to be a psychological parent to a child, he or she stands in parity with the legal parent, and custody
and visitation issues between them are to be determined on a best interests standard giving weight to the statutory factors. V.C. v. M.J.B.,
163 N.J. 200, 748 A.2d 539, 80 A.L.R.5th 663 (2000), cert. denied, 531 U.S. 926, 121 S. Ct. 302, 148 L. Ed. 2d 243 (2000).
n14 Lewis v. Lewis, 257 Ala. 565, 60 So. 2d 145 (1952); Graves v. French, 209 Ark. 564, 191 S.W.2d 590 (1946); Crater v. Crater, 135
Cal. 633, 67 P. 1049 (1902); Stiwinter v. Roberts, 153 Conn. 240, 215 A.2d 413 (1965); Wise v. Brewster, 179 So. 2d 882 (Fla. Dist. Ct.
App. 1st Dist. 1965); Guinn v. Trammell, 216 Ga. 388, 116 S.E.2d 551 (1960); Mahan v. Hendricks, 181 Ind. 630, 99 N.E. 418 (1912); Hal-
stead v. Halstead, 259 Iowa 526, 144 N.W.2d 861 (1966); Matter of Kowalzek, 37 N.C. App. 364, 246 S.E.2d 45 (1978), appeal dismissed,
review denied, 295 N.C. 734, 248 S.E.2d 863 (1978); Casteel v. Mandel, 415 S.W.2d 512 (Tex. Civ. App. Dallas 1967); Sutton v. Menges,
186 Va. 805, 44 S.E.2d 414 (1947); Frame v. Wehn, 120 W. Va. 208, 197 S.E. 524 (1938); State ex rel. Tuttle v. Hanson, 274 Wis. 423, 80
N.W.2d 387 (1957).
SUPPLEMENT:
Cases
State law did not provide mother with clear and mandatory procedural protections after emergency removal proceedings
sufficient to create clearly established liberty interest to state initiated hearing following her children's removal and
placement, and thus social worker who handled removal and placement was entitled to qualified immunity from liability
under § 1983 for alleged violation of mother's procedural due process rights, where state law was not clear as to whether
signatures of both parents were necessary, and children were placed in custody of their father before expiration of pe-
riod specified under state law for filing petition after voluntary removal. Shiraki v. Cannella, 83 Fed. Appx. 896 (9th
Cir. 2003).
The constitutional right of parents and children to live together without governmental interference is well established,
and Fourteenth Amendment guarantees that parents will not be separated from their children without due process of law
except in emergencies. Santos v. County of Los Angeles Department of Children and Family Services, 299 F. Supp. 2d
1070 (C.D. Cal. 2004).
Page 83
Fourteenth Amendment's Due Process Clause provides a blanket protection against the loss of parental custody without
some sort of a hearing. Suboh v. Borgioli, 298 F. Supp. 2d 192 (D. Mass. 2004).
Trial court properly considered whether former foster parent, who had previously served as foster parent to minor child
along with child's future adoptive mother, met his burden of demonstrating psychological parent status, in proceeding
on his petition for custody of child, based on time period following adoption of child rather than previous time period
during which he had served as foster parent; temporary nature of foster parenting along with compensation for services
associated with it would render it difficult to determine whether former foster parent became psychological parent or
served child's needs in different capacity. Osterkamp v. Stiles, 235 P.3d 178 (Alaska 2010).
Trial court, considering claim of de facto parent status asserted in child custody proceedings by lesbian partner of child's
adoptive mother, properly considered evidence of events that occurred before enactment of statute recognizing de facto
parent-child relationships, where such statute expressly provided that it was intended to have retroactive effect and re-
quired a court to look back in time to determine whether a de facto parent-child relationship had been established. 13
West's Del.C. § 8-201(c). Smith v. Guest, 16 A.3d 920 (Del. 2011).
There is a presumption that fit parents act in the best interests of their children. Global Travel Marketing, Inc. v. Shea,
908 So. 2d 392 (Fla. 2005).
Natural parents have the superior right to custody above all others if they are fit for the charge and have not given up the
right. Pennington v. Marcum, 266 S.W.3d 759 (Ky. 2008), as modified, (Oct. 24, 2008).
Nonparental visitation statutes, which were narrowly tailored to serve state's compelling interest in protecting child's
best interest, did not unconstitutionally infringe on father's fundamental right to make decisions concerning care, cus-
tody, and control of his child; statutes limited parties who could petition court for visitation, limited application of
statutes to cases where there was specified predicate event or condition, and not only allowed trial court to afford
parental decisions the requisite special weight, but also allowed court to take into to consideration best interest of child
and balance that interest against parent's desires. R.C. §§ 3109.051(D), 3109.11, 3109.12. Harrold v. Collier, 107 Ohio
St. 3d 44, 2005-Ohio-5334, 836 N.E.2d 1165 (2005), cert. denied, 126 S. Ct. 1474, 164 L. Ed. 2d 248 (U.S. 2006).
Ohio courts are obligated to afford some special weight to the wishes of parents of minor children when considering pe-
titions for nonparental visitation made pursuant to Ohio's nonparental visitation statutes. R.C. §§ 3109.11, 3109.12. Har-
rold v. Collier, 107 Ohio St. 3d 44, 2005-Ohio-5334, 836 N.E.2d 1165 (2005), cert. denied, 126 S. Ct. 1474, 164 L. Ed.
2d 248 (U.S. 2006).
Record did not establish that award of custody to father posed risk of substantial harm to children, and thus, trial court
erred in granting custody of children to maternal grandparents and aunt; although father fell behind on child support, his
failure to make full payment was not willful, father was prepared and able to move to three-bedroom trailer if he re-
ceived custody of children, father lived in same school district that children were in presently, so they would not have to
change schools, and, although father, who failed to visit children for six-month period in alleged attempt to allow
mother to return to old patterns so as to gain evidence for obtaining custody, exercised poor judgment, evidence pre-
sented did not rise to showing, by clear and convincing evidence, that children would be subjected to risk of substantial
harm. Elmore v. Elmore, 173 S.W.3d 447 (Tenn. Ct. App. 2004), appeal denied, (June 20, 2005).

182, 185, 187, 188, 192, 200, 203, 204, 217, 219, 263, 270 to 274, 282, 283, 287, 336, 394, 403, 452, 456 to 460, 484,
549 to 662, 775, 823
Page 84
Definition: Persons other than biological parents are "third parties" for purposes of child custody disputes. n1
Award of custody of child where contest is between natural parent and stepparent, 10 A.L.R. 4th 767.
Award of custody of child where contest is between child's parents and grandparents, 31 A.L.R. 3d 1187 § 6.
Award of custody of child where contest is between child's mother and grandparent, 29 A.L.R. 3d 366 § 6[a].
Page 85
34 of 145 DOCUMENTS

Parent and Child

§ 33 Presumptions and burden of proof
In a custody contest between a parent and a nonparent, the law raises a strong presumption that the child's welfare will
be best served by being in the custody of a parent or parents. n1 In such a contest, the mere showing of the parental rela-
tionship, without more, makes out a prima facie case in favor of the parent. n2 The burden is on those resisting the
parental right of custody to show the existence of circumstances which would deprive the parent of that right. n3
More than a mere preponderance of evidence is required in order to overcome the presumption favoring the parent. The
standard of proof required has been variously described as clear, n4 clear and conclusive, n5 plain and certain, n6 strong and
satisfactory, n7 cogent and convincing, n8 substantial, n9 or clear and convincing. n10 However, there is authority that a pre-
ponderance of the evidence is sufficient. n11
FOOTNOTES:
n4 Newman v. Sample, 205 So. 2d 650 (Miss. 1968); In re Guardianship of Hight, 1944 OK 143, 194 Okla. 214, 148 P.2d 475 (1944).
n5 In re Sweet, 1957 OK 250, 317 P.2d 231 (Okla. 1957).
n6 Wilson v. Mitchell, 48 Colo. 454, 111 P. 21 (1910); Pinney v. Sulzen, 91 Kan. 407, 137 P. 987 (1914); Jamison v. Gilbert, 1913 OK 541,
38 Okla. 751, 135 P. 342 (1913); Pierce v. Jeffries, 103 W. Va. 410, 137 S.E. 651, 51 A.L.R. 1502 (1927).
n7 Peck v. Shierling, 222 Ga. 60, 148 S.E.2d 491 (1966).
n8 James v. James, 230 Va. 51, 334 S.E.2d 551 (1985); Whiteman v. Robinson, 145 W. Va. 685, 116 S.E.2d 691 (1960).
n9 Shorty v. Scott, 87 N.M. 490, 535 P.2d 1341 (1975).
n10 Moss v. Vest, 74 Idaho 328, 262 P.2d 116 (1953); Wilkerson v. Wilkerson, 214 Va. 395, 200 S.E.2d 581 (1973).
n11 In re Perales, 52 Ohio St. 2d 89, 6 Ohio Op. 3d 293, 369 N.E.2d 1047 (1977).
SUPPLEMENT:
Page 86
Cases
District court erred in determining that father satisfied his burden of proof as to his custody rights under Argentine law,
in proceeding under Hague Convention on the Civil Aspects of International Child Abduction, where record was un-
clear as to terms of parties' apparent agreement among themselves, district court did not examine Argentine law, and
mere fact that father filed criminal complaint in Argentina against mother for kidnapping was insufficient to establish
that he had custody. In re Application of Adan, 437 F.3d 381 (3d Cir. 2006).
Removal of children from their mother based on findings that children were abused because mother shot and killed
roommate in the children's presence, had a loaded gun and spent ammunition in the home, and failed to take child for
treatment for ringworm did not violate substantive due process or the Fourth Amendment. Richards v. City of New
York, 2003 WL 21036365 (S.D. N.Y. 2003).
When the record shows that domestic violence has occurred and the court so finds, it is plain error for the court in child
custody action not to make findings as to whether the domestic violence amounted to a history of perpetrating domestic
violence, and if such a history is found, then the path charted in statute, creating rebuttable presumption that parent with
a history of perpetrating domestic violence will not be awarded sole or joint custody of the child, must be followed.
Puddicombe v. Dreka, 167 P.3d 73 (Alaska 2007).
Presumption that it is in the best interest of children to remain in the care and custody of their parents may be rebutted
upon a showing either that the parent is unfit or that exceptional circumstances exist which would make continued cus-
tody with the parent detrimental to the best interest of the child. In re Shirley B., 419 Md. 1, 18 A.3d 40 (2011).
When a custody or visitation dispute exists between a parent and a third party, a presumption exists that it is in the best
interest of children to remain in the care and custody of their parents; however, such parental right is not absolute, as the
presumption that protects it may be rebutted upon a showing either that the parent is "unfit" or that "exceptional circum-
stances" exist which would make continued custody with the parent detrimental to the best interest of the child. In re
Adoption/Guardianship of Rashawn H., 402 Md. 477, 937 A.2d 177 (2007).
Trial court properly placed burden of proving that visitation would be in the best interest of minor child on maternal
grandparents and gave due deference to father's wishes and concerns regarding visitation before determining that it was
in child's best interest to grant motion for grandparent visitation, even though trial court did not use the words "special
weight" in considering father's wishes. R.C. §§ 3109.051(D), 3109.11, 3109.12. Harrold v. Collier, 107 Ohio St. 3d 44,
2005-Ohio-5334, 836 N.E.2d 1165 (2005), cert. denied, 126 S. Ct. 1474, 164 L. Ed. 2d 248 (U.S. 2006).

182, 185, 187, 188, 192, 200, 203, 204, 217, 219, 263, 270 to 274, 282, 283, 287, 336, 394, 403, 452, 456 to 460, 484,
549 to 662, 775, 823
West's Key Number Digest, Child Custody [westkey]452, 456 to 460, 633
Page 87
35 of 145 DOCUMENTS

Parent and Child

§ 34 Transfer of custody to third person
Since children cannot be bought and sold, n1 and since the parent is subject to obligations which he cannot throw off by
any act of his own, n2 agreements by which the parents, or one of them, transfer custody of a child to a third person, with
the provision or informal understanding that custody will not be reclaimed, are not generally considered legally binding
contracts, n3 unless they are supported by other express statutory provisions. n4 This is especially true in the case of a par-
ent who, having been compelled by poverty or unfavorable circumstances to surrender the custody of his child, wishes
to reclaim the child when his circumstances are improved. n5 It seems, however, that the courts are free to enforce such
agreements where to do so would be in the best interest of the child. n6 The parent, accordingly, will not be permitted to
regain custody unless he can show that such a change of custody will materially promote the child's welfare. n7
FOOTNOTES:
n1 Com. ex rel. Berg v. Catholic Bureau, 167 Pa. Super. 514, 76 A.2d 427 (1950); Hooks v. Bridgewater, 111 Tex. 122, 229 S.W. 1114, 15
A.L.R. 216 (1921).
n2 Clark v. Clark, 122 Md. 114, 89 A. 405 (1913); Buchanan v. Buchanan, 170 Va. 458, 197 S.E. 426, 116 A.L.R. 688 (1938).
n3 Clark v. White, 102 Ark. 93, 143 S.W. 587 (1912); Hernandez v. Thomas, 50 Fla. 522, 39 So. 641 (1905); Clark v. Clark, 122 Md. 114,
89 A. 405 (1913); Walker v. Williams, 214 Miss. 34, 58 So. 2d 79 (1952); Com. ex rel. Berg v. Catholic Bureau, 167 Pa. Super. 514, 76
A.2d 427 (1950); Ziezel v. Hutchinson, 91 N.J. Eq. 325, 109 A. 300 (Ct. Err. & App. 1920).
As to adoption agreements, see 2 Am. Jur. 2d, Adoption §§ 43 et seq.
n4 Child Sav. Institute v. Knobel, 327 Mo. 609, 37 S.W.2d 920, 76 A.L.R. 1068 (1931); Tillman v. Tillman, 84 S.C. 552, 66 S.E. 1049
(1910); Stanford v. Gray, 42 Utah 228, 129 P. 423 (1912).
n5 Stapleton v. Poynter, 111 Ky. 264, 23 Ky. L. Rptr. 76, 62 S.W. 730 (1901); State ex rel. Kearney v. Steel, 121 La. 215, 46 So. 215
(1908); Hibbette v. Baines, 78 Miss. 695, 29 So. 80 (1900).
n6 Brown v. De Witt, 320 Mich. 156, 30 N.W.2d 818 (1948); Ex parte Swall, 36 Nev. 171, 134 P. 96 (1913).
n7 Horton v. Gilmer, 266 Ala. 124, 94 So. 2d 393 (1957).
SUPPLEMENT:
Research References
West's Key Number Digest, Jury [westkey]10, 19.5

Page 88
A.L.R. Index: Abuse of Persons
A.L.R. Index: Jury and Jury Trial
A.L.R. Index: Juvenile Courts and Delinquent Children
A.L.R. Index: Neglect of Child
A.L.R. Index: Termination of Parental Rights
A.L.R. Digest: Jury §§ 5, 23
A.L.R. Digest: Juvenile Delinquents and Dependents §§ 2, 9
C.J.S., Juries §§ 12, 14, 21, 22, 29, 30, 45, 122
C.J.S., Parent and Child § 38
3d 231
Relinquishment of Parental Claim to Child -- Adoption Proceedings, 10 Am. Jur. Proof of Facts 2d 635
Undue Influence in Obtaining Parent's Consent to Adoption of Child, 8 Am. Jur. Proof of Facts 2d 481
Failure to Report Suspected Case of Child Abuse, 6 Am. Jur. Proof of Facts 2d 345
Professional Liability for Failure to Report Child Abuse, 38 Am. Jur. Trials 1
Juvenile Court Proceedings, 14 Am. Jur. Trials 619
15A Am. Jur. Pleading and Practice Forms, Jury §§ 20, 21
15A Am. Jur. Pleading and Practice Forms, Juvenile Courts and Delinquent and Dependent Children §§ 57 to 61
19 Am. Jur. Pleading and Practice Forms, Parent and Child §§ 121 to 135
Cases
To be proven unfit for custody requires clear and convincing evidence the parent or de facto custodian has engaged in
conduct similar to activity that could result in the termination of parental rights by the state. Allen v. Devine, 2007 WL
1519044 (Ky. Ct. App. 2007).
Whether a de facto custodian has waived the superior right to custody depends upon the facts of each case and requires
consideration of all relevant factors. Allen v. Devine, 2007 WL 1519044 (Ky. Ct. App. 2007).
Page 89
While the psychological bond between a child and a third party is a factor in finding exceptional circumstances that
would warrant granting custody or visitation to third party, it is not determinative. Janice M. v. Margaret K., 404 Md.
661, 948 A.2d 73 (2008).
In father's appeal of trial court's decision to grant custody of children to maternal grandmother after mother was mur-
dered by third party, remand was warranted for purpose of allowing trial court to reconsider, in light of Court of Ap-
peals's decision in McDermott v. Dougherty, its finding that exceptional circumstances existed that would overcome
presumption that biological parent should be awarded custody of children; McDermott decision, which was issued after
trial court's ruling, set forth factors to consider when determining whether parental custody would be detrimental to
child, and trial court did not consider factors set forth in McDermott decision. B.G. v. M.R, 165 Md. App. 532, 885
A.2d 937 (2005).
Factors that courts should consider in determining whether parental custody will be detrimental to the child vis-a-vis
third-party custody include the (1) length of time the child has been away from the biological parent, (2) the age of the
child when care was assumed by the third party, (3) the possible emotional effect on the child of a change of custody,
(4) the period of time which elapsed before the parent sought to reclaim the child, (5) the nature and strength of the ties
between the child and the third party custodian, (6) the intensity and genuineness of the parent's desire to have the child,
and (7) the stability and certainty as to the child's future in the custody of the parent. B.G. v. M.R, 165 Md. App. 532,
885 A.2d 937 (2005).
Factors that courts may consider in determining whether parental custody will be detrimental to the child vis-a-vis third-
party custody include the stability of the child's current home environment, whether there is an ongoing family unit, and
the child's physical, mental, and emotional needs. B.G. v. M.R, 165 Md. App. 532, 885 A.2d 937 (2005).

182, 185, 187, 188, 192, 200, 203, 204, 217, 219, 263, 270 to 274, 282, 283, 287, 336, 394, 403, 452, 456 to 460, 484,
549 to 662, 775, 823
West's Key Number Digest, Child Custody [westkey]42, 126, 149
Right of parent to regain custody of child after temporary conditional relinquishment of custody, 35 A.L.R. 4th 61.
Page 90
36 of 145 DOCUMENTS

Parent and Child

§ 35 Surrender of child on promise to give or leave property
A transaction which in substance amounts to a sale of a child is contrary to public policy. n1 In a number of jurisdictions,
however, the courts have held that a contract, whether an adoption contract n2 or merely an agreement for the transfer of
the custody of the child, is not brought within this rule merely because it provides for the surrender by a parent of his
child to another in consideration of the latter's promise to give or leave money or property to the parent n3 or to the child,
n4
where it appears that the contract is in fact one which promotes the child's welfare and best interest. On the other
hand, there is authority that public policy precludes enforcement of such a contract, upon the ground that the law should
not encourage the relinquishment by parents of their children merely for the children's enrichment. n5 According to the
weight of authority, the fact that it is not in compliance with the customary or statutory mode of adoption does not in-
validate an agreement to give a child a share in the promisor's estate in consideration of the surrender of the child by its
parents. n6
FOOTNOTES:
n1 Enders v. Enders, 164 Pa. 266, 30 A. 129 (1894).
n2 2 Am. Jur. 2d, Adoption §§ 43 et seq.
n3 Clark v. Clark, 122 Md. 114, 89 A. 405 (1913).
n4 2 Am. Jur. 2d, Adoption § 47.
n5 Hooks v. Bridgewater, 111 Tex. 122, 229 S.W. 1114, 15 A.L.R. 216 (1921).
n6 Crawford v. Wilson, 139 Ga. 654, 78 S.E. 30 (1913); Chehak v. Battles, 133 Iowa 107, 110 N.W. 330 (1907); Odenbreit v. Utheim, 131
Minn. 56, 154 N.W. 741 (1915); Fisher v. Davidson, 271 Mo. 195, 195 S.W. 1024 (1917).

182, 185, 187, 188, 192, 200, 203, 204, 217, 219, 263, 270 to 274, 282, 283, 287, 336, 394, 403, 452, 456 to 460, 484,
549 to 662, 775, 823
Page 91
Page 92
37 of 145 DOCUMENTS

Parent and Child

§ 36 Loss or forfeiture of right
A parent's interest in retaining custody of his children is both legally cognizable and substantial, n1 and may not be over-
ridden in the absence of persuasive evidence that the children's well-being requires that custody be placed elsewhere. n2
To ensure the best interest of the child, the power of the state transcends the right of the natural parents; if they are unfit
to have custody, their children may be taken from them. n3 While a fit and suitable parent is entitled to custody of his or
her child, it is equally true that where fitness and suitability are absent he or she loses this right. n4 Under this power, leg-
islation may be enacted whereby the state may assume custody where parents abandon their children, or neglect them in
such manner that they are likely to become public charges, or where the parents otherwise prove to be unsuitable. n5
Such legislation has been held constitutional, n6 though there is authority to the contrary. n7
There is a strong presumption that the best interest of a minor is usually served by keeping custody in the natural par-
ents. n8 If unfitness of the parent is clearly established, the parental right may then be disregarded and, if necessary, some
other person appointed to have the custody of the child. n9 There is authority that the due process protections of the state
and federal constitutions prohibit the termination of a natural parent's rights, unless the parent is unfit. n10 However, there
is authority that other factors which have significant impact on the well-being of the child can justify a finding in favor
of the nonparent, even though the parent has not been shown to have been unfit. n11
FOOTNOTES:
n1 § 17.
n2 In re Ko.W., 774 A.2d 296 (D.C. 2001).
n3 Barry v. Sparks, 306 Mass. 80, 27 N.E.2d 728, 128 A.L.R. 983 (1940); Eggleston v. Landrum, 210 Miss. 645, 50 So. 2d 364, 23
A.L.R.2d 696 (1951); In re D. L. W., 530 S.W.2d 388 (Mo. Ct. App. 1975); Gomez v. Savage, 254 Neb. 836, 580 N.W.2d 523 (1998); In re
Adoption of R. I., 468 Pa. 287, 361 A.2d 294 (1976); Bough v. Bough, 263 S.W.2d 573 (Tex. Civ. App. San Antonio 1953).
As to the termination of the parent-child relationship, see § 16.
n4 Adams v. Tessener, 354 N.C. 57, 550 S.E.2d 499 (2001).
n5 In re J. Z., 190 N.W.2d 27, 53 A.L.R.3d 592 (N.D. 1971); In re Adoption of R. I., 468 Pa. 287, 361 A.2d 294 (1976); De Witt v. Brooks,
143 Tex. 122, 182 S.W.2d 687 (1944); In re N. H., 135 Vt. 230, 373 A.2d 851 (1977).
n6 Matter of VMS, 446 N.E.2d 632 (Ind. Ct. App. 1st Dist. 1983); In re Interest of Spradlin, 214 Neb. 834, 336 N.W.2d 563 (1983); In re
Huber, 57 N.C. App. 453, 291 S.E.2d 916 (1982), appeal dismissed, review denied, 306 N.C. 557, 294 S.E.2d 223 (1982).
n7 Davis v. Smith, 266 Ark. 112, 583 S.W.2d 37 (1979); Linn v. Linn, 205 Neb. 218, 286 N.W.2d 765 (1980).
Page 93
n8 Wiley v. Spratlan, 543 S.W.2d 349 (Tex. 1976).
n9 Neville v. Reed, 134 Ala. 317, 32 So. 659 (1902); In re Baby Girl M., 37 Cal. 3d 65, 207 Cal. Rptr. 309, 688 P.2d 918 (1984); In Interest
of Price, 7 Kan. App. 2d 477, 644 P.2d 467 (1982); Ex parte Badger, 286 Mo. 139, 226 S.W. 936, 14 A.L.R. 286 (1920); Gomez v. Savage,
254 Neb. 836, 580 N.W.2d 523 (1998); In re Diana P., 120 N.H. 791, 424 A.2d 178, 21 A.L.R.4th 522 (1980); Fischer v. Meader, 95 N.J.L.
59, 111 A. 503 (N.J. Sup. Ct. 1920); In re Moody, 21 Or. App. 396, 535 P.2d 102 (1975); In re Adoption of R. I., 468 Pa. 287, 361 A.2d 294
(1976); Fletcher v. Travis County Child Welfare Dept., 539 S.W.2d 184 (Tex. Civ. App. Austin 1976).
As to the power of a juvenile court to take a child away from his or her parents and award custody to someone else, see 47 Am. Jur. 2d, Ju-
venile Courts and Delinquent and Dependent Children § 10.
n10 In Interest of J.L.W., 102 Wis. 2d 118, 306 N.W.2d 46 (1981).
n11 Albright v. Com. ex rel. Fetters, 491 Pa. 320, 421 A.2d 157 (1980).
As to the awarding of custody to a third-party in a divorce proceeding where a parent has not been deemed unfit, see 24A Am. Jur. 2d, Di-
vorce and Separation § 943.
SUPPLEMENT:
Cases
A trial court must first consider whether it has jurisdiction to make a child custody order under the Uniform Child Cus-
tody Jurisdiction Act (UCCJA) before it can exert the exclusive original jurisdiction granted in the termination of
parental rights statute; thus, the district court may assert its jurisdiction only if to do so would be compatible with the
UCCJA. West N.C.G.S.A. § 7A"289.23; West N.C.G.S.A. § 50A"201. In re J.B., 164 N.C. App. 394, 595 S.E.2d 794
(2004).

182, 185, 187, 188, 192, 200, 203, 204, 217, 219, 263, 270 to 274, 282, 283, 287, 336, 394, 403, 452, 456 to 460, 484,
549 to 662, 775, 823
Validity and application of statute allowing endangered child to be temporarily removed from parental custody, 38
A.L.R. 4th 756.
Standing of foster parent to seek termination of rights of foster child's natural parents, 21 A.L.R. 4th 535.
Page 94
38 of 145 DOCUMENTS

Parent and Child

§ 37 Burden of proof
The burden of proof imposed upon the state is to establish that termination of the parental relationship is necessary by
clear and convincing evidence, n1 or beyond a reasonable doubt, n2 or by a preponderance of the evidence. n3 It is not
enough that such a transfer would be in the child's best interest, or that the nonparent is a better qualified custodian. n4
FOOTNOTES:
n1 Santosky v. Kramer, 455 U.S. 745, 102 S. Ct. 1388, 71 L. Ed. 2d 599 (1982); New Jersey Division of Youth and Family Services v.
Wunnenburg, 149 N.J. Super. 64, 372 A.2d 1376 (Juv. & Dom. Rel. Ct. 1977), judgment aff'd, 169 N.J. Super. 417, 404 A.2d 1252 (App.
Div. 1979); Matter of John AA, 89 A.D.2d 738, 453 N.Y.S.2d 942 (3d Dep't 1982); In re Jamie M., 134 Cal. App. 3d 530, 184 Cal. Rptr.
778 (3d Dist. 1982); In re Interest of Mosier, 205 Neb. 340, 288 N.W.2d 22 (1980); In Interest of R. W. B., 241 N.W.2d 546 (N.D. 1976); In
re Adoption of P., 475 Pa. 197, 380 A.2d 311 (1977); Ziegler v. Tarrant County Child Welfare Unit, 680 S.W.2d 674 (Tex. App. Fort Worth
1984), writ refused n.r.e., (Mar. 20, 1985); State, In Interest of Pitts, 535 P.2d 1244 (Utah 1975); Rocka v. Roanoke County Dept. of Public
Welfare, 215 Va. 515, 211 S.E.2d 76 (1975).
n2 In re Diana P., 120 N.H. 791, 424 A.2d 178, 21 A.L.R.4th 522 (1980).
n3 Hernandez v. State ex rel. Arizona Dept. of Economic Security, 23 Ariz. App. 32, 530 P.2d 389 (Div. 2 1975); People In Interest of M.
B. v. J. B., 188 Colo. 370, 535 P.2d 192 (1975); In re McAhren's Adoption, 460 Pa. 63, 331 A.2d 419 (1975); Fletcher v. Travis County
Child Welfare Dept., 539 S.W.2d 184 (Tex. Civ. App. Austin 1976).
n4 People ex rel. Portnoy v. Strasser, 303 N.Y. 539, 104 N.E.2d 895 (1952); Blow v. Lottman, 75 S.D. 127, 59 N.W.2d 825 (1953) (over-
ruled by, Matter of Termination of Parental Rights of P.A.M., 505 N.W.2d 395 (S.D. 1993)) and (overruling recognized by, In re Guardian-
ship and Conservatorship for T.H.M., 2002 SD 13, 2002 WL 123357 (S.D. 2002)) and (overruling recognized by, Meldrum v. Novotny,
2002 SD 15, 2001 WL 1748563 (S.D. 2002)); Whiteman v. Robinson, 145 W. Va. 685, 116 S.E.2d 691 (1960).
SUPPLEMENT:
Cases
Prior action for divorce between husband and wife was neither an adjudication nor a voluntary acknowledgement of pa-
ternity, and, thus, subsequent order declaring that husband was not child's biological father was result of an original ac-
tion to establish paternity, rather than an action to modify to which statute of limitations for filing such action would ap-
ply. A.C.A. § 9-10-115(f) (2000). State Office of Child Support Enforcement v. Willis, 347 Ark. 6, 59 S.W.3d 438
(2001).
A legal impediment to an identified prospective adoptive parent's eligibility to adopt is a relevant issue in termination of
parental rights proceedings when a social worker's opinion that a child is likely to be adopted is based in part on the
willingness or commitment of an identified prospective adoptive parent to adopt. West's Ann.Cal.Fam. Code §§ 8601-
8603. In re G.M., 181 Cal. App. 4th 552, 2010 WL 298385 (5th Dist. 2010).
Page 95
When a parent fails to maintain a normal parental relationship without just cause for a period of one year, prima facie
evidence of abandonment exists, supporting termination of parental rights; there is no universal standard for what con-
stitutes a "normal parental relationship," and whether such a relationship exists depends on the facts and circumstances
of each case. West's I.C.A. §§ 16-2002(5), 16-2005(a). Doe v. Doe, 244 P.3d 190 (Idaho 2010).
Statutory basis for terminating parental rights, namely that there was no reasonable expectation of significant improve-
ment in parent's conduct in immediately foreseeable future, considering child's age, did not require proof that teenage
mother lacked psychological and mental capacity to develop required skills to adequately parent child by time she
reached age of majority. KRS 625.090(2)(e, g). Com., Cabinet for Health and Family Services v. T.N.H., 302 S.W.3d
658 (Ky. 2010).
Evidence was sufficient to establish abandonment, so as to support termination of father's parental rights; although there
were protection from abuse orders extant, and father was in military, he made no effort to contact or demonstrate intent
to parent child before entry of orders, he never attempted to modify orders to permit him to legally contact child, he vio-
lated orders multiple times by contacting mother, but did not ask about child, ask for photo, inquire into her health, ac-
tivities, or education, and never sent child card or gift, and he did not provide child support, have his own family contact
child to establish relationship, contact mother's attorney, or contact mother after order expired. 22 M.R.S.A. §§ 4002(1-
A), 4055(1)(B)(2)(b)(iii). In re Adoption of Lily T., 2010 ME 58, 997 A.2d 722 (Me. 2010).
Substantial evidence supported finding that father engaged in conduct that was contrary to his parental relationship,
which supported award of parental interest to child's step-father after child's mother died; the Department of Health and
Human Services Child Support Enforcement Division report indicated that father had paid only 25-30% of the child
support he owed, and witnesses testified that father missed many visitation opportunities with child, and step-father fi-
nancially supported child, regularly helped her with her homework, attended her sporting events and school activities,
provided transportation to school and other places, prepared meals for her, and took care of her while her mother
worked. MCA 40-4-211, 40-4-228(2). In re A.P.P., 2011 MT 50, 359 Mont. 386, 251 P.3d 127 (2011).
Evidence failed to establish that parents had mental or emotional illness or mental deficiency that rendered them unable
to provide for children's physical, emotional, and mental needs, as sole ground relied upon by court in terminating
parental rights; there were no allegations of drug use and no evidence that children had insufficient food available, ac-
cording to all reports, food and formula were always adequate, mother testified that she kept child clean and well-
dressed, many examples of "complete lack of parenting skills" were, in fact, hypercritical observations of parents, and
psychologist who performed psychological evaluations on family concluded that parents could parent child as long as
child did not have any "significant medical problems." V.T.C.A., Family Code § 161.001. In re A.L.M., 300 S.W.3d
914 (Tex. App. Texarkana 2009), reh'g overruled, (Dec. 15, 2009).

182, 185, 187, 188, 192, 200, 203, 204, 217, 219, 263, 270 to 274, 282, 283, 287, 336, 394, 403, 452, 456 to 460, 484,
549 to 662, 775, 823
West's Key Number Digest, Child Custody [westkey]452, 633, 775, 823
West's Key Number Digest, Child Support [westkey]192, 336, 403, 484, 660
Page 96
39 of 145 DOCUMENTS

Parent and Child

§ 38 Right of visitation
The right of visitation derives from the right of custody n1 and is controlled by the same legal principles. Thus, as in cus-
tody cases, the best interest and welfare of the child is the controlling consideration, n2 not the wishes or desires of the
parents. n3 A parent's right of visitation is not absolute. n4 Visitation with the noncustodial parent is presumed to be in the
child's best interest and is not merely a privilege of the noncustodial parent, but a right of the child. n5 A court is required
to grant a noncustodial parent rights of visitation which will enable the maintenance of a beneficial parent-child rela-
tionship, allowing a restriction or denial of this right only if visitation is likely to endanger the child's physical or emo-
tional health. n6 A trial judge has wide discretion to make determinations concerning the visitation of a child. n7
FOOTNOTES:
n1 Jackson v. Fitzgerald, 185 A.2d 724, 98 A.L.R.2d 322 (Mun. Ct. App. D.C. 1962); Boswell v. Boswell, 352 Md. 204, 721 A.2d 662
(1998); Julien v. Gardner, 1981 OK 54, 628 P.2d 1165 (Okla. 1981); D.G. v. D.M.K., 1996 SD 144, 557 N.W.2d 235 (S.D. 1996); In re Pa-
ternity of IC, 971 P.2d 603 (Wyo. 1999).
As to factors affecting the choice between parents in a custody dispute, see § 30.
n2 Montenegro v. Diaz, 26 Cal. 4th 249, 109 Cal. Rptr. 2d 575, 27 P.3d 289 (2001); Ireland v. Ireland, 246 Conn. 413, 717 A.2d 676
(1998); Rodriguez v. Rodriguez, 295 So. 2d 328 (Fla. Dist. Ct. App. 3d Dist. 1974); Temple v. Temple, 52 Ill. App. 3d 851, 10 Ill. Dec. 706,
368 N.E.2d 192 (3d Dist. 1977); Browning v. Tarwater, 215 Kan. 501, 524 P.2d 1135 (1974); Smith v. Trosclair, 321 So. 2d 514 (La. 1975);
In re Mark M., 365 Md. 687, 782 A.2d 332 (2001); E.N.O. v. L.M.M., 429 Mass. 824, 711 N.E.2d 886 (1999); Poll v. Poll, 256 Neb. 46, 588
N.W.2d 583 (1999) (disapproved of by, Gibilisco v. Gibilisco, 263 Neb. 27, 637 N.W.2d 898 (2002)); Lo Presti v. Lo Presti, 40 N.Y.2d 522,
387 N.Y.S.2d 412, 355 N.E.2d 372, 90 A.L.R.3d 217 (1976); Stoppler v. Stoppler, 633 N.W.2d 142, 2001 ND 148 (N.D., Aug 29, 2001);
Harmon v. Harmon, 1997 OK 91, 943 P.2d 599 (Okla. 1997); Com. ex rel. Zaffarano v. Genaro, 500 Pa. 256, 455 A.2d 1180 (1983); Suddes
v. Spinelli, 703 A.2d 605 (R.I. 1997); Hybertson v. Hybertson, 1998 SD 83, 582 N.W.2d 402 (S.D. 1998); Oehl v. Oehl, 221 Va. 618, 272
S.E.2d 441 (1980); Matter of Marriage of Cabalquinto, 100 Wash. 2d 325, 669 P.2d 886 (1983); State ex rel. Jeanne U. v. Canady, 210 W.
Va. 88, 554 S.E.2d 121 (2001); Krause v. Krause, 58 Wis. 2d 499, 206 N.W.2d 589 (1973); In re Paternity of IC, 971 P.2d 603 (Wyo. 1999).
As to visitation rights in divorce proceedings, see 24A Am. Jur. 2d, Divorce and Separation §§ 973 et seq.
n3 Stoppler v. Stoppler, 633 N.W.2d 142, 2001 ND 148 (N.D., Aug 29, 2001).
n4 In re D.M., 771 A.2d 360 (D.C. 2001).
A noncustodial parent has a right to liberal visitation with his or her child at reasonable times and under reasonable conditions, but this right
is not absolute and must yield to the good of the child. Boswell v. Boswell, 352 Md. 204, 721 A.2d 662 (1998).
A divorced parent in a correctional facility has no absolute right to visitation with the child in the facility. Harmon v. Harmon, 1997 OK 91,
943 P.2d 599 (Okla. 1997).
n5 McDowell v. McDowell, 2001 ND 176, 635 N.W.2d 139 (N.D. 2001).

Page 97
n6 K.L.G. v. S.L.N., 2001 ND 33, 622 N.W.2d 232 (N.D. 2001); Laurence v. Nelson, 785 A.2d 519 (R.I. 2001).
The total suspension of a parent's child visitation rights is justified only under the most severe circumstances. Hawk v. Hawk, 203 W. Va.
48, 506 S.E.2d 85 (1998).
n7 Wolinski v. Browneller, 115 Md. App. 285, 693 A.2d 30 (1997); Brown v. Brown, 260 Neb. 954, 621 N.W.2d 70 (2000); Chandler v.
Bishop, 142 N.H. 404, 702 A.2d 813 (1997); Hybertson v. Hybertson, 1998 SD 83, 582 N.W.2d 402 (S.D. 1998); Pace v. Pace, 2001 WY
43, 22 P.3d 861 (Wyo. 2001).
SUPPLEMENT:
Research References
West's Key Number Digest, Constitutional Law [westkey]84.1
West's Key Number Digest, Constitutional Law [westkey]274(3.1)
West's Key Number Digest, Constitutional Law [westkey]274(5)
A.L.R. Index: Annulment of Marriage
A.L.R. Index: Religion and Religious Societies
A.L.R. Index: Visits and Visitation
A.L.R. Digest: Divorce and Separation §§ 118, 118.7
C.J.S., Parent and Child §§ 14, 28
Change in Circumstances Justifying Modification of Child Visitation Rights, 15 Am. Jur. Proof of Facts 2d 659
Change in Circumstances Justifying Modification of Child Custody Order, 6 Am. Jur. Proof of Facts 2d 499
Relocation of Children by the Custodial Parent, 65 Am. Jur. Trials 127
Smith, Religious Visitation Constraints on the Noncustodial Parent: The Need For National Application of a Uniform
Compelling Interest Test, 71 Ind. L.J. 815 (1996)
Clark, Hornbook on Domestic Relations, 2d
Crouch, Family Law Checklists

Page 98
Cases
To overcome presumption that the siblings of a child in placement are entitled to visitation with that child, the Division
of Youth and Family Services (DYFS) is required to show that visitation would be inconsistent with the health, safety,
and physical and psychological welfare of the child, and is inappropriate to the individual circumstances of the child's
physical or mental development. N.J.S.A. 9:6B-4. In re D.C., 203 N.J. 545, 4 A.3d 1004 (2010).

182, 185, 187, 188, 192, 200, 203, 204, 217, 219, 263, 270 to 274, 282, 283, 287, 336, 394, 403, 452, 456 to 460, 484,
549 to 662, 775, 823
Restrictions on parent's child visitation rights based on parent's sexual conduct, 2000 A.L.R. 5th 1.
Grandparents' visitation rights where child's parents are living, 71 A.L.R. 5th 99.
Custodial parent's relocation as grounds for change of custody, 70 A.L.R. 5th 377.
Grandparents' visitation rights where child's parents are deceased, or where status of parents is unspecified, 69 A.L.R.
5th 1.
Validity and construction of provisions for arbitration of disputes as to alimony or support payments or child visitation
or custody matters, 38 A.L.R. 5th 69 §§ 5, 8.
Denial or restriction of visitation rights to parent charged with sexually abusing child, 1 A.L.R. 5th 776.
Child custody and visitation rights of person infected with AIDS, 86 A.L.R. 4th 211.
Parent's or relative's rights of visitation of adult against latter's wishes, 40 A.L.R. 4th 846.
Visitation rights of homosexual or lesbian parent, 36 A.L.R. 4th 997.
Interference by custodian of child with noncustodial parent's visitation rights as ground for change of custody, 28
A.L.R. 4th 9.
Right of jailed or imprisoned parent to visit from minor child, 15 A.L.R. 4th 1234.
Visitation rights of persons other than natural parents or grandparents, 1 A.L.R. 4th 1270.
Denial of child visitation rights, 2 Am. Jur. Proof of Facts 2d 791.
Page 99
40 of 145 DOCUMENTS

Parent and Child

§ 39 Denial to noncustodial parent
A parent denied custody does not thereby lose his natural right to visit his children, though the right may be denied if
the best interest of the child so demands. n1 Visitation with a noncustodial parent should only be denied in cases of
abuse, neglect, or harm to the child, as evidenced by a specific showing of detriment. n2 A noncustodial parent cannot be
deprived of visitation rights solely by reason of his inability to pay child support, n3 though there is authority that deliber-
ate nonsupport is a valid reason for denying visitation rights. n4 The restriction of visitation privileges because of reli-
gious differences must be based upon firm proof of a deleterious effect on the children. n5 A parent's homosexuality does
not necessarily create a bar to reasonable rights of visitation, though if the court determines that the homosexual parent's
activities are not in the best interest of the child, the court may limit that parent's visitation rights. n6
Following the termination of parental rights, a parent is not entitled to visitation privileges, and this result is not uncon-
stitutional. n7
FOOTNOTES:
As to the right of visitation by a natural parent after the child is adopted, see 2 Am. Jur. 2d, Adoption § 174.
Parent's right of visitation after appointment of guardian, see 39 Am. Jur. 2d, Guardian and Ward § 77.
n2 Boswell v. Boswell, 352 Md. 204, 721 A.2d 662 (1998).
In an appropriate case, a trial court may impose restrictions on a child's overnight visitation in the presence of non-spouses. Eldridge v. El-
dridge, 42 S.W.3d 82 (Tenn. 2001).
Supervised visitation should be ordered when necessary to protect the best interests of the child. Keith A. v. Jennifer J.A., 201 W. Va. 736,
500 S.E.2d 552 (1997).
n7 In re Robert J., 129 Cal. App. 3d 894, 181 Cal. Rptr. 188 (1st Dist. 1982).
Page 100
SUPPLEMENT:
Cases
Only in exceptional cases should visitation be denied to a parent of a deprived child. In re BTW, 2008 OK 80, 195 P.3d
896 (Okla. 2008), as corrected, (Sept. 24, 2008).

182, 185, 187, 188, 192, 200, 203, 204, 217, 219, 263, 270 to 274, 282, 283, 287, 336, 394, 403, 452, 456 to 460, 484,
549 to 662, 775, 823
Page 101
41 of 145 DOCUMENTS

Parent and Child

§ 40 By third parties
Grandparents and other relatives may have a legal right of visitation, but some jurisdictions do not bestow a legal right
upon grandparents to custody or visitation. n1 Visitation rights may be awarded to, or in favor of, the grandparents, if
such visitation is in the child's best interest. n2 Custodial parents generally have veto power over visitation between the
children and nonparental third parties, although some jurisdictions apply a common-law right of visitation to persons
who have stood in loco parentis for a period of time. n3
Visitation rights are sometimes awarded to nonparents with the parents' consent, or without serious objection by them,
in which case they are then generally upheld against later or collateral attack. n4 In some jurisdictions, statutes have been
enacted giving to grandparents of minor children whose parents are deceased, divorced, or separated, visitation rights. n5
FOOTNOTES:
n4 Minge v. Minge, 226 Ark. 262, 289 S.W.2d 189 (1956); Benner v. Benner, 113 Cal. App. 2d 531, 248 P.2d 425 (2d Dist. 1952); Ferrell
v. Ruege, 397 So. 2d 723 (Fla. Dist. Ct. App. 1st Dist. 1981); Scott v. Scott, 154 Ga. 659, 115 S.E. 2 (1922) (disapproved of by, Price v.
Dawkins, 242 Ga. 41, 247 S.E.2d 844 (1978)); McKinney v. Cox, 18 Ill. App. 2d 609, 153 N.E.2d 98 (3d Dist. 1958); Com. ex rel. Good-
man v. Dratch, 192 Pa. Super. 1, 159 A.2d 70 (1960).
n5 Globman v. Globman, 158 N.J. Super. 338, 386 A.2d 390 (App. Div. 1978); Barry v. Barrale, 598 S.W.2d 574 (Mo. Ct. App. W.D.
1980); Lo Presti v. Lo Presti, 40 N.Y.2d 522, 387 N.Y.S.2d 412, 355 N.E.2d 372, 90 A.L.R.3d 217 (1976); In re Griffiths, 47 Ohio App. 2d
238, 1 Ohio Op. 3d 307, 353 N.E.2d 884 (7th Dist. Mahoning County 1975) (relatives).
In an action by maternal grandparents who sought visitation with children of their deceased daughter, the trial court properly refused to grant
the grandparents such visitation rights where the father was still alive, and where the statute only provided for grandparental visitation when
both parents were deceased or if they were divorced. Julien v. Gardner, 1981 OK 54, 628 P.2d 1165 (Okla. 1981).
SUPPLEMENT:
Cases
Woman lacked standing to bring action against biological mother of minor, seeking visitation with child, who was con-
ceived by artificial insemination during the woman's 12-year intimate domestic relationship with mother, under third
party visitation statutes, as such statutes have been declared facially unconstitutional. West's RCWA 26.09.240,
Page 102
26.10.160(3). In re Parentage of L.B., 155 Wash. 2d 679, 122 P.3d 161 (2005), cert. denied, 2006 WL 271809 (U.S.
2006).

182, 185, 187, 188, 192, 200, 203, 204, 217, 219, 263, 270 to 274, 282, 283, 287, 336, 394, 403, 452, 456 to 460, 484,
549 to 662, 775, 823
Petition or application -- By sibling or grandparent -- For visitation rights with regard to child of deceased parent 19
Am. Jur. Pleading and Practice Forms, Parent and Child § 74
Page 103
42 of 145 DOCUMENTS

Parent and Child

C. Services and Earnings of Children
§ 41 Generally
In return for his duty of support, a parent is entitled to the services of his children during their minority. n1 Also, he may
avail himself of this either by requiring the child's services himself, at home or in the parent's business, or by permitting
him to work for others and claiming his earnings. n2 Accordingly, until the child reaches majority or is emancipated, his
wages belong to the parent. n3
The right constitutes property, and its destruction through the death of the child is an injury to property. n4 The right is
one of which the parent cannot be deprived except by due process of law, n5 and it is not affected by any contract or act
of the child. n6 The parent's right, however, is subject to the paramount authority of the state to protect the child's wel-
fare. n7
Where a parent voluntarily relinquishes his right to his child's earnings and permits the child to earn for himself, the
child may receive his earnings and appropriate them at pleasure; this waiver or relinquishment of the parent's right to his
child's earnings is sometimes called partial emancipation. n8 In some jurisdictions, employers are authorized by statute to
pay wages directly to a minor employee until notified to the contrary by the parent. n9 In the absence of such a statute, if
a person employs a child to labor without his parent's consent, he is liable to the parent for the wages. n10 However, if the
parent knows of the contract of employment and makes no objection to it, and no demand for the child's wages, he is
deemed to have consented to the payment of such wages to the child. n11
Where an employer makes a contract with a minor as to the amount of wages, the parent may either adopt the contract
and claim whatever is due under it or repudiate it and claim the reasonable value of the services rendered. n12
FOOTNOTES:
n1 N.A.H. v. S.L.S., 9 P.3d 354 (Colo. 2000); Vaupel v. Bellach, 261 Iowa 376, 154 N.W.2d 149 (1967); Rohm v. Stroud, 386 Mich. 693,
194 N.W.2d 307 (1972); Petition of Parks, 267 Minn. 468, 127 N.W.2d 548 (1964); Mitchell v. Mosher, 362 S.W.2d 532 (Mo. 1962); Peot
v. Ferraro, 83 Wis. 2d 727, 266 N.W.2d 586 (1978).
n2 Swift & Co. v. Johnson, 138 F. 867 (C.C.A. 8th Cir. 1905); Pawnee Farmers' Elevator Co. v. Powell, 76 Colo. 1, 227 P. 836, 37 A.L.R. 6
(1924); Cain v. Garner, 169 Ky. 633, 185 S.W. 122 (1916); Lessard v. Great Falls Woolen Co., 83 N.H. 576, 145 A. 782, 63 A.L.R. 1142
(1929); McGarr v. National & Providence Worsted Mills, 24 R.I. 447, 53 A. 320 (1902); Kenner v. Kenner, 139 Tenn. 211, 201 S.W. 779
(1918); Bombardier v. Goodrich, 94 Vt. 208, 110 A. 11, 9 A.L.R. 1028 (1920); American Products Co. v. Villwock, 7 Wash. 2d 246, 109
P.2d 570, 132 A.L.R. 1010 (1941); Comer v. Ritter Lumber Co., 59 W. Va. 688, 53 S.E. 906 (1906).
n3 Reyna v. Vowell, 470 F.2d 494 (5th Cir. 1972) (applying Texas law); Mitchell v. Mosher, 362 S.W.2d 532 (Mo. 1962); Smith v. Simp-
son, 260 N.C. 601, 133 S.E.2d 474 (1963); Immel v. Richards, 154 Ohio St. 52, 42 Ohio Op. 128, 93 N.E.2d 474 (1950); Hines v. Cheshire,
36 Wash. 2d 467, 219 P.2d 100 (1950).
n4 Iszler v. Jorda, 80 N.W.2d 665, 64 A.L.R.2d 696 (N.D. 1957).

Page 104
n5 Kennedy v. Meara, 127 Ga. 68, 56 S.E. 243 (1906).
n6 Roxana Petroleum Co. v. Cope, 1928 OK 442, 132 Okla. 152, 269 P. 1084, 60 A.L.R. 837 (1928).
n7 Starnes v. Albion Mfg. Co., 147 N.C. 556, 61 S.E. 525 (1908).
n8 Smith v. Simpson, 260 N.C. 601, 133 S.E.2d 474 (1963); Hines v. Cheshire, 36 Wash. 2d 467, 219 P.2d 100 (1950).
n10 Smith v. Gilbert, 80 Ark. 525, 98 S.W. 115 (1906); Culberson v. Alabama Const. Co., 127 Ga. 599, 56 S.E. 765 (1907); Illinois Cent.
R. Co. v. Sanders, 104 Miss. 257, 61 So. 309 (1913).
n11 Culberson v. Alabama Const. Co., 127 Ga. 599, 56 S.E. 765 (1907); Lottinville v. Dwyer, 68 R.I. 263, 27 A.2d 305 (1942).
n12 Wardrobe v. Miller, 53 Cal. App. 370, 200 P. 77 (3d Dist. 1921); Culberson v. Alabama Const. Co., 127 Ga. 599, 56 S.E. 765 (1907).
REFERENCE: West's Key Number Digest, Child Custody [westkey]101

9B Am. Jur. Legal Forms 2d, Infants § 144:41
Parent's consent to employment of minor and relinquishment of right to earnings. 9B Am. Jur. Legal Forms 2d, Infants
§ 144:41.
Page 105
43 of 145 DOCUMENTS

Parent and Child

C. Services and Earnings of Children
According to some authorities the father has, as against the mother, the superior right to the services and earnings of the
child. n1 This is not necessarily true, however, in jurisdictions in which there are statutes making the parents joint
guardians, or otherwise equalizing their parental rights. n2 Statutes sometimes provide that the father and mother of a le-
gitimate unmarried minor child are equally entitled to the child's earnings. n3
FOOTNOTES:
n1 Pyle v. Waechter, 202 Iowa 695, 210 N.W. 926, 49 A.L.R. 557 (1926); Soper v. Igo, Walker & Co., 121 Ky. 550, 28 Ky. L. Rptr. 519,
89 S.W. 538 (1905); White v. Holding, 217 N.C. 329, 7 S.E.2d 825 (1940).
n2 § 21.
n3 Iszler v. Jorda, 80 N.W.2d 665, 64 A.L.R.2d 696 (N.D. 1957).

9B Am. Jur. Legal Forms 2d, Infants § 144:41
Notice to employer of minor -- Parents' claim of wages due minor. 13B Am. Jur. Legal Forms 2d, Parent and Child §
191:151.
Page 106
44 of 145 DOCUMENTS

Parent and Child

D. Property and Property Rights
§ 43 Generally
A parent has no title to the property of his minor child, nor any custody or control over it. n1 Where the parent has relin-
quished his right to the child's earnings, property purchased by the child with those earnings belongs to the child. n2 Par-
ents owe a fiduciary duty to their children as regards their children's property. n3 In some jurisdictions, statutes require a
parent to obtain judicial permission to sell a minor child's assets worth more than a specified amount. n4
Although it has been said that a parent has at least a moral duty to see that the child's property rights are fully protected,
n5
a parent has no authority to sell, pledge, or transfer his child's property, n6 or to make contracts with respect to it. n7
Where he does undertake to handle the property, he may be required to give a bond. n8 Land purchased by the parent
with money of the child will be impressed with a constructive trust in favor of the child. n9
Property furnished by a parent to his child for the purpose of support and maintenance, or education, unless in some def-
inite way given to the child as his own property, or unless the child has been emancipated, from which a gift may be im-
plied, remains the property of the parent, who is entitled to recover for damage thereto or loss thereof. n10
FOOTNOTES:
n1 Wood & Henderson v. Claiborne, 82 Ark. 514, 102 S.W. 219 (1907); Emery v. Emery, 45 Cal. 2d 421, 289 P.2d 218 (1955); Shuck v.
Shuck, 77 N.D. 628, 44 N.W.2d 767 (1950).
n2 Hines v. Cheshire, 36 Wash. 2d 467, 219 P.2d 100 (1950).
n3 Murphy v. Murphy, 1997 ME 103, 694 A.2d 932 (Me. 1997); Sinquefield v. Valentine, 159 Miss. 144, 132 So. 81, 76 A.L.R. 238
(1931); Rose Funeral Home v. Julian, 176 Tenn. 534, 144 S.W.2d 755, 131 A.L.R. 858 (1940).
n4 Rodriguez v. Montalvo, 871 F.2d 163 (1st Cir. 1989) (applying Puerto Rico law).
n5 Loesch, to Use of Harleysville Mut. Cas. Co. v. Vassiliades, 17 N.J. Super. 306, 86 A.2d 14 (App. Div. 1952).
n6 Bombardier v. Goodrich, 94 Vt. 208, 110 A. 11, 9 A.L.R. 1028 (1920).
n7 Fassitt v. Seip, 249 Pa. 576, 95 A. 273, 6 A.L.R. 1671 (1915).
n8 Pacheco v. Delgardo, 46 Ariz. 401, 52 P.2d 479, 103 A.L.R. 494 (1935).
n9 Conkling v. New York Life Ins & Trust Co., 262 F. 620 (App. D.C. 1919); Oree v. Gage, 38 Cal. App. 212, 175 P. 799 (1st Dist. 1918);
Manning v. Manning, 135 Ga. 597, 69 S.E. 1126 (1911); Koehler v. Koehler, 75 Ind. App. 510, 121 N.E. 450 (Div. 2 1919).
Page 107
n10 Semple School for Girls v. Yielding, 16 Ala. App. 584, 80 So. 158 (1918); Cy Carney Appliance Co. v. True, 226 Ark. 961, 295
S.W.2d 768, 61 A.L.R.2d 1264 (1956); Shoemaker v. Jackson, 128 Iowa 488, 104 N.W. 503 (1905); Withey v. Pere Marquette R. Co., 141
Mich. 412, 104 N.W. 773 (1905).
SUPPLEMENT:
Cases
Minor television actor's disaffirmance of contract with personal manager, which mother signed and which provided that
minor's disaffirmance would not serve to void or avoid mother's obligations under the agreement, did not permit mother
to escape liability under contract. Berg v. Traylor, 148 Cal. App. 4th 809, 56 Cal. Rptr. 3d 140 (2d Dist. 2007).
REFERENCE: West's Key Number Digest, Parent and Child [westkey]7 to 9, 13.5
A.L.R. Digest: Parent and Child § 1.5
Parent's rights with respect to clothing, books, toys, and the like purchased for, or furnished to, child, 61 A.L.R. 2d
1270.
Page 108
45 of 145 DOCUMENTS

Parent and Child

D. Property and Property Rights
§ 44 Compromise or release of child's rights by parent
A parent has no authority, unless he has been appointed guardian of the child, to compromise or release claims or causes
of action belonging to the child. n1
Although a parent may release his own cause of action for loss of services resulting from an injury to the child, he has,
as a general rule, no authority to enter into any contract of compromise or release affecting the cause of action which the
child itself has for the injury. n2
FOOTNOTES:
n1 Reo v. U.S. Postal Service, 98 F.3d 73 (3d Cir. 1996) (applying New Jersey law); Salmeron v. U.S., 724 F.2d 1357 (9th Cir. 1983);
Burge v. City and County of San Francisco, 41 Cal. 2d 608, 262 P.2d 6 (1953); Myers v. Anderson, 145 Kan. 775, 67 P.2d 542 (1937); Fas-
sitt v. Seip, 249 Pa. 576, 95 A. 273, 6 A.L.R. 1671 (1915); Hawkins ex rel. Hawkins v. Peart, 2001 UT 94, 37 P.3d 1062 (Utah 2001).
As to the effect of a release by the child himself, see 42 Am. Jur. 2d, Infants § 58.
n2 Arnold v. Amtrak, 13 Fed. Appx. 573 (9th Cir. 2001) (applying Washington law); Pacheco v. Delgardo, 46 Ariz. 401, 52 P.2d 479, 103
A.L.R. 494 (1935); Leslie v. Proctor & Gamble Mfg. Co., 102 Kan. 159, 169 P. 193 (1917).
SUPPLEMENT:
Cases
Generally, a parent has no right, in the absence of authorization from a court, to release or compromise causes of action
belonging to a minor. Galloway v. State, 790 N.W.2d 252 (Iowa 2010).
REFERENCE: West's Key Number Digest, Parent and Child [westkey]7 to 9, 13.5
A.L.R. Digest: Parent and Child § 1.5
West's Key Number Digest, Parent and Child [westkey]7, 13.5
Page 109
46 of 145 DOCUMENTS

Parent and Child

E. Support and Maintenance of Child, In General; Liability for Expenses Regarding Child
1. In General
§ 45 Generally; basis of duty
A duty to support and maintain minor children is universally recognized as resting upon the parents of such children. n1
Even in the absence of statute, parents are under a legal as well as a moral duty to support, maintain, and care for their
minor children. n2 This duty is frequently imposed by statute. n3
The parental duty to support minor children is usually accompanied by n4 the parental right to the custody, control, ser-
vices, and earnings of such children, and is often spoken of as correlative or reciprocal to that right. n5
Minor children to whom the parental duty of support and maintenance is owed have a corresponding right to that sup-
port. n6
FOOTNOTES:
n1 Benson v. Benson, 977 P.2d 88 (Alaska 1999); Little v. Little, 193 Ariz. 518, 975 P.2d 108 (1999); Fonken v. Fonken, 334 Ark. 637, 976
S.W.2d 952 (1998); Moss v. Superior Court (Ortiz), 17 Cal. 4th 396, 71 Cal. Rptr. 2d 215, 950 P.2d 59 (1998); Bowie v. Nicholson, 705
A.2d 290 (D.C. 1998); In re Marriage of Hoak, 364 N.W.2d 185 (Iowa 1985); Doughty v. Engler, 112 Kan. 583, 211 P. 619, 30 A.L.R. 1065
(1923); Watson v. Watson, 183 Ky. 516, 209 S.W. 524, 3 A.L.R. 1575 (1919); Poydras v. Poydras, 155 So. 2d 221, 1 A.L.R.3d 317 (La. Ct.
App. 1st Cir. 1963); Drummond v. State to Use of Drummond, 350 Md. 502, 714 A.2d 163 (1998); Com. v. Brasher, 359 Mass. 550, 270
N.E.2d 389 (1971); Lufkin v. Harvey, 131 Minn. 238, 154 N.W. 1097 (1915); Hirsch v. Hirsch, 37 N.Y.2d 312, 372 N.Y.S.2d 71, 333
N.E.2d 371 (1975); Plott v. Plott, 313 N.C. 63, 326 S.E.2d 863 (1985); Mosbrucker v. Mosbrucker, 1997 ND 72, 562 N.W.2d 390 (N.D.
1997); School Bd. Dist. No. 18, Garvin County v. Thompson, 1909 OK 136, 24 Okla. 1, 103 P. 578 (1909); Larson v. Diveglia, 549 Pa. 118,
700 A.2d 931 (1997); Featherstone v. Brooks, 220 Va. 443, 258 S.E.2d 513 (1979).
As to the duty of support resting on persons in loco parentis, see § 9
As to the duty to support children as set forth in the Uniform Civil Liability for Support Act, see 23 Am. Jur. 2d, Desertion and Nonsupport
§ 71.
n2 Dunbar v. Dunbar, 190 U.S. 340, 23 S. Ct. 757, 47 L. Ed. 1084 (1903); Maschauer v. Downs, 289 F. 540, 32 A.L.R. 1461 (App. D.C.
1923); Osborn v. Weatherford, 27 Ala. App. 258, 170 So. 95 (1936); Barrett v. Barrett, 44 Ariz. 509, 39 P.2d 621 (1934); Pacific Gold
Dredging Co. v. Industrial Acc. Commission, 184 Cal. 462, 194 P. 1, 13 A.L.R. 725 (1920); Ward v. Goodrich, 34 Colo. 369, 82 P. 701
(1905); Brown v. Brown, 132 Ga. 712, 64 S.E. 1092 (1909); Iroquois Iron Co. v. Industrial Commission, 294 Ill. 106, 128 N.E. 289, 12
A.L.R. 924 (1920); In re Glass' Estate, 175 Kan. 246, 262 P.2d 934 (1953); Rounds Bros. v. McDaniel, 133 Ky. 669, 118 S.W. 956 (1909);
Drummond v. State to Use of Drummond, 350 Md. 502, 714 A.2d 163 (1998); Creeley v. Creeley, 258 Mass. 460, 155 N.E. 424, 52 A.L.R.
285 (1927); Lufkin v. Harvey, 131 Minn. 238, 154 N.W. 1097 (1915); Rawlings v. Rawlings, 121 Miss. 140, 83 So. 146, 7 A.L.R. 1259
(1919); Worthington v. Worthington, 212 Mo. App. 216, 253 S.W. 443 (1923); Wells v. Wells, 227 N.C. 614, 44 S.E.2d 31, 1 A.L.R.2d 905
(1947); State v. Langford, 90 Or. 251, 176 P. 197 (1918); Gully v. Gully, 111 Tex. 233, 231 S.W. 97, 15 A.L.R. 564 (1921); Buchanan v.
Buchanan, 170 Va. 458, 197 S.E. 426, 116 A.L.R. 688 (1938).
As to the awarding of child support in the context of a divorce or separation, see 24A Am. Jur. 2d, Divorce and Separation §§ 1001 et seq.
Page 110
n3 Yarborough v. Yarborough, 290 U.S. 202, 54 S. Ct. 181, 78 L. Ed. 269, 90 A.L.R. 924 (1933); Haas v. Chater, 79 F.3d 559 (7th Cir.
1996), reh'g en banc granted, opinion vacated, (May 15, 1996) and on reh'g en banc, 89 F.3d 838 (7th Cir. 1996) (applying Indiana law);
Benson v. Benson, 977 P.2d 88 (Alaska 1999); Ex parte Madalina, 174 Cal. 693, 164 P. 348, 1 A.L.R. 1629 (1917); Chapin v. Cummings,
191 Ga. 408, 12 S.E.2d 312 (1940); Drummond v. State to Use of Drummond, 350 Md. 502, 714 A.2d 163 (1998); Hersey v. Hersey, 271
Mass. 545, 171 N.E. 815, 70 A.L.R. 518 (1930); Kulcsar v. Petrovic, 20 Ohio App. 3d 104, 484 N.E.2d 1365 (9th Dist. Wayne County
1984); Roxana Petroleum Co. v. Cope, 1928 OK 442, 132 Okla. 152, 269 P. 1084, 60 A.L.R. 837 (1928); State v. Langford, 90 Or. 251, 176
P. 197 (1918); Rose Funeral Home v. Julian, 176 Tenn. 534, 144 S.W.2d 755, 131 A.L.R. 858 (1940); Gully v. Gully, 111 Tex. 233, 231
S.W. 97, 15 A.L.R. 564 (1921).
n4 Barry v. Sparks, 306 Mass. 80, 27 N.E.2d 728, 128 A.L.R. 983 (1940); Roxana Petroleum Co. v. Cope, 1928 OK 442, 132 Okla. 152,
269 P. 1084, 60 A.L.R. 837 (1928).
n5 Alcorn v. Alcorn, 183 Ark. 342, 35 S.W.2d 1027 (1931); Blades v. Szatai, 151 Md. 644, 135 A. 841, 50 A.L.R. 232 (1927); Lessard v.
Great Falls Woolen Co., 83 N.H. 576, 145 A. 782, 63 A.L.R. 1142 (1929); Roe v. Doe, 29 N.Y.2d 188, 324 N.Y.S.2d 71, 272 N.E.2d 567
(1971); Walker v. Walker, 204 N.C. 210, 167 S.E. 818 (1933); Roxana Petroleum Co. v. Cope, 1928 OK 442, 132 Okla. 152, 269 P. 1084,
60 A.L.R. 837 (1928).
As to statutes imposing a duty on a parent charged with custody, see § 55.
n6 Barrett v. Barrett, 44 Ariz. 509, 39 P.2d 621 (1934); Doughty v. Engler, 112 Kan. 583, 211 P. 619, 30 A.L.R. 1065 (1923); Lacy v.
Arvin, 140 Md. App. 412, 780 A.2d 1180 (2001); Dyer v. State, 58 Okla. Crim. 317, 52 P.2d 1080 (1935); Buchanan v. Buchanan, 170 Va.
458, 197 S.E. 426, 116 A.L.R. 688 (1938).
The right to child support is the right of the child; the legal status of his caretaker has no impact on that right. Hight v. Tucker, 757 A.2d 756
(D.C. 2000).
As to action by child against parent for enforcement of parental obligation, see § 74.
SUPPLEMENT:
Cases
Child support is a right that belongs to the child, and may not be contracted away by the parents; it is not a requirement
imposed by one parent on the other, but rather it is a dual obligation imposed on the parents by the State. Dechant v.
Florida Dept. of Revenue ex rel. Rees, 915 So. 2d 215 (Fla. Dist. Ct. App. 3d Dist. 2005).
After an adjudication of paternity, an illegitimate child's legal relationship to the father with regard to financial support
is no different than that of a legitimate child born to a marriage that ended in divorce. (Per concurring opinion of Diaz,
J., with two Justices joining and three Justices joining in part.) Moulds v. Bradley, 791 So. 2d 220 (Miss. 2001).
Section of Family Court Act that establishes support liability when a spouse or a stepchild is a recipient of public assis-
tance makes it clear that a parent's duty to support is not abrogated by a child's receipt of public assistance; section does
not otherwise limit a parent's existing support obligation. McKinney's Family Court Act § 415. Dutchess County Dept.
of Social Services ex rel. Day v. Day, 96 N.Y.2d 149, 726 N.Y.S.2d 54, 749 N.E.2d 733 (2001).
If the issue of paternity was raised, or could have been raised, in a prior action, a party to that action is barred from chal-
lenging paternity at a later date. Neely v. Thomasson, 365 S.C. 345, 618 S.E.2d 884 (2005).
REFERENCE: West's Key Number Digest, Child Custody [westkey]8, 20 to 33, 289, 326 to 329, 505, 700 to 789
West's Key Number Digest, Child Support [westkey]1, 7 to 10, 20 to 125, 140 to 165, 237, 243, 250 to 256, 298, 301,
358, 375 to 409, 440 to 498, 500 to 510, 619
West's Key Number Digest, Parent and Child [westkey]3.5, 7, 7.5, 11, 16
A.L.R. Digest: Parent and Child § 1.5, 3, 12
Page 111
Child Support Obligations of Former Same-Sex Partners, 5 A.L.R.6th 303

Statutory change of age of majority as affecting pre-existing status or rights, 75 A.L.R. 3d 228.
Custody and Visitation of Children by Gay and Lesbian Parents, 64 Am Jur. Proof of Facts 3d 403
Loco Parentis Status, 28 Am. Jur. Proof of Facts 2d 545
Child custody litigation, 22 Am. Jur. Trials 347.
Complaint, petition, or declaration -- By parent against other parent -- For support of children 19 Am. Jur. Pleading and
Practice Forms, Parent and Child § 85.
Recent Cases, Family Law -- Unmarried Couples -- Massachusetts Supreme Judicial Court Holds that a Former Domes-
tic Partner Need Not Fulfill Promises to Support a Child Born After the Relationship Has Dissolved. -- T.F. v. B.L.,
813 N.E.2D 1244 (MASS. 2004), 118 Harv. L. Rev. 1039 (2004)
Ball, Lesbian and Gay Families: Gender Nonconformity and the Implications of Difference, 31 Cap. U. L. Rev. 691
(2003)
Faulkner, Applying Old Law to New Births: Protecting the Interests of Children Born Through New Reproductive
Technology, 2 J. High Tech. L. 27 (2003)
Logue, The Facts of Life for Gay and Lesbian Parents: Compelling Equal Treatment Under the Law, 25-FALL Fam.
Advoc. 43 (2002)
Jacobs, Micah Has One Mommy and One Legal Stranger: Adjudicating Maternity for Nonbiological Lesbian Coparents,
50 Buff. L. Rev. 341 (2002)
Richman, Lovers, Legal Strangers, and Parents: Negotiating Parental and Sexual Identity in Family Law, 36 Law &
Soc'y Rev. 285 (2002)
Page 112
47 of 145 DOCUMENTS

Parent and Child

1. In General
§ 46 What law governs
The parent is, in the state of his domicile, amenable to its law concerning the duty of support owed to his child. n1 An or-
der or decree for child support is binding only on a person over whom a court has personal jurisdiction. n2 Some cases
take the view that the character and extent of the obligation are controlled by the law of the parent's domicile, rather
than that of the child's residence. n3 This rule has been recognized by the United States Supreme Court. n4 There is au-
thority, however, that the duty of support is to be determined by the law of the child's domicile, n5 where, for example, a
father has abandoned the child and where the child has therefore, by operation of law, taken the domicile of the mother.
n6
The law of the state where the child resides, this being the place where support is needed, can impose a duty of sup-
port on a nonresident parent. n7 The parent's duty of support, which may be assumed to exist in all the states, n8 is owed to
the child wherever the parent entitled to its control and custody places the child, or wherever, in disregard of his
parental duty and obligation, he permits the child to remain unprovided for. n9 Since the state in which the child resides
has an undoubted interest in the child's support and maintenance, its courts are likely, in practice, to apply its own law
concerning the duties of the parent, if he is subject to its jurisdiction, not only where his residence or domicile is in such
state, n10 but also where it is in another state. n11 There is authority that the presence of the child and one parent in one
state might make this state the most convenient forum for the support action, although this fact does not confer personal
jurisdiction over a nonresident defendant-father. n12 When the full extent of the parent's duty has been judicially deter-
mined by a court of the parent's domicile, the judgment is entitled to full faith and credit and the state of the child's resi-
dence can impose no additional obligation. n13
FOOTNOTES:
n1 Commonwealth v. Acker, 197 Mass. 91, 83 N.E. 312 (1908); Coler v. Corn Exchange Bank, 250 N.Y. 136, 164 N.E. 882, 65 A.L.R. 879
(1928), aff'd, 280 U.S. 218, 50 S. Ct. 94, 74 L. Ed. 378 (1930).
n3 Berkley v. Berkley, 246 S.W.2d 804, 34 A.L.R.2d 1456 (Mo. 1952).
n4 Yarborough v. Yarborough, 290 U.S. 202, 54 S. Ct. 181, 78 L. Ed. 269, 90 A.L.R. 924 (1933); State of Cal. v. Copus, 158 Tex. 196, 309
S.W.2d 227, 67 A.L.R.2d 758 (1958).
n5 Drazin v. Drazin, 31 A.D.2d 531, 295 N.Y.S.2d 183 (1st Dep't 1968).
n6 Simonds v. Simonds, 154 F.2d 326, 13 A.L.R.2d 1138 (App. D.C. 1946).
As to the domicile of the child where the parents have separate domicilees, see 25 Am. Jur. 2d, Domicile §§ 41 et seq.
Page 113
n7 Durfee v. Durfee, 293 Mass. 472, 200 N.E. 395 (1936); State v. Carr, 107 N.H. 477, 225 A.2d 178 (1966).
Related References:
Interstate collection of child support and federalism: Why the states have authority and what they need to do to keep it.
(United States v. Schroeder, 894 F Supp 360 (D Ariz 1995)), 11 BYU J Public L 1:103 (1997).
n8 Dunbar v. Dunbar, 190 U.S. 340, 23 S. Ct. 757, 47 L. Ed. 1084 (1903); Dean v. Dean, 241 N.Y. 240, 149 N.E. 844, 42 A.L.R. 1398
(1925).
n9 In re Fowles, 89 Kan. 430, 131 P. 598 (1913); Dean v. Dean, 241 N.Y. 240, 149 N.E. 844, 42 A.L.R. 1398 (1925).
n10 Spencer v. Spencer, 97 Minn. 56, 105 N.W. 483 (1906); Geary v. Geary, 102 Neb. 511, 167 N.W. 778, 20 A.L.R. 809 (1918), error dis-
missed, 251 U.S. 535, 40 S. Ct. 55, 64 L. Ed. 401 (1919).
n11 State v. Wellman, 102 Kan. 503, 170 P. 1052 (1918); State v. Sanner, 81 Ohio St. 393, 90 N.E. 1007 (1910).
n12 Miller v. Kite, 313 N.C. 474, 329 S.E.2d 663 (1985).
n13 Yarborough v. Yarborough, 290 U.S. 202, 54 S. Ct. 181, 78 L. Ed. 269, 90 A.L.R. 924 (1933).
358, 375 to 409, 440 to 498, 500 to 510, 619
West's Key Number Digest, Child Custody [westkey]8, 20 to 33
Father's liability for support of child furnished after entry of decree of absolute divorce not providing for support, 69
A.L.R. 2d 203 § 15.
Conflict of laws as to right of child or third person against parent for support of child, 34 A.L.R. 2d 1460.
Page 114
48 of 145 DOCUMENTS

Parent and Child

1. In General
§ 47 Uniform Interstate Family Support Act
Under the Uniform Interstate Family Support Act, in a proceeding to establish, enforce, or modify a support order or to
determine parentage, a state court can exercise personal jurisdiction over a nonresident individual if:
.The individual is personally served within the state n1
.The individual submits to the jurisdiction of the state by consent, by entering a general appearance, or by filing a
responsive document having the effect of waiving any contest to personal jurisdiction n2
.The individual resided with the child in the state n3
.The individual resided in the state and provided prenatal expenses or support for the child n4
.The child resides in the state as a result of the acts or directives of the individual n5
.The child was conceived in the state n6
.The individual asserted parentage in the state n7
A support order can be issued by a state if the individual seeking the order resides in another state, or if the support en-
forcement agency seeking the order is located in another state. n8 Personal service with process variously has been held
sufficient n9 and insufficient n10 to support a court's exercise of personal jurisdiction under § 201 of the U.I.F.S.A.. The
exercise of personal jurisdiction under § 201(2) of the U.I.F.S.A.is supported by:
.a nonresident's entering into and complying with a consent judgment regarding child support n11
.entering a general appearance in a child support proceeding n12
.a nonresident's having resided with the child in the state at one time n13
.the child having been conceived in the state n14
FOOTNOTES:
n1 U.I.F.S.A. § 201(1).
n2 U.I.F.S.A. § 201(2).
n3 U.I.F.S.A. § 201(3).
n4 U.I.F.S.A. § 201(4).
Page 115
n5 U.I.F.S.A. § 201(5).
n6 U.I.F.S.A. § 201(6).
n7 U.I.F.S.A. § 201(7).
n8 U.I.F.S.A. § 401(a).
n9 In re Marriage of Erickson, 98 Wash. App. 892, 991 P.2d 123 011(Div. 3 2000).
n10 Clemens v. Clemens, 25 Conn. L. Rptr. 621, 1999 WL 997882 Conn. Super. Ct. 1999).
n11 Jurado v. Brashear, 764 So. 2d 1066 (La. Ct. App. 1st Cir. 2000), writ granted, 765 So. 2d 345 (La. 2000) and judgment aff'd in part,
rev'd in part on other grounds, 782 So. 2d 575 (La. 2001).
n12 Letellier v. Letellier, 1999 WL 732487 (Tenn. Ct. App. 1999), appeal granted, (Mar. 6, 2000) and rev'd on other grounds, 40 S.W.3d
490, 90 A.L.R.5th 707 (Tenn. 2001); Franklin v. Com., Dept. of Social Services, Div. of Child Support Enforcement ex rel. Franklin, 27 Va.
App. 136, 497 S.E.2d 881 (1998).
n13 Child Support Enforcement Div. of Alaska v. Brenckle, 424 Mass. 214, 675 N.E.2d 390 (1997); Abu-Dalbouh v. Abu-Dalbouh, 547
N.W.2d 700 (Minn. Ct. App. 1996); State ex rel. Mahoney v. St. John, 964 P.2d 1242 (Wyo. 1998).
n14 Perdomo v. Fuller, 1999 OK CIV APP 11, 974 P.2d 185 (Okla. Civ. App. Div. 3 1998); Letellier v. Letellier, 1999 WL 732487 (Tenn.
Ct. App. 1999), appeal granted, (Mar. 6, 2000) and rev'd on other grounds, 40 S.W.3d 490, 90 A.L.R.5th 707 (Tenn. 2001).
SUPPLEMENT:
Cases
The Uniform Interstate Family Support Act (UIFSA) ensures that in every case only one state exercises jurisdiction
over child support at any given time. Stone v. Davis, 148 Cal. App. 4th 596, 55 Cal. Rptr. 3d 833 (3d Dist. 2007).
The Uniform Interstate Family Support Act (UIFSA) contemplates interstate cooperation to effect an expeditious collec-
tion of child support across state borders, and provides unity and structure in each state's approach to the modification
and enforcement of child support orders. Campbell v. Campbell, 391 N.J. Super. 157, 917 A.2d 302 (App. Div. 2007).
358, 375 to 409, 440 to 498, 500 to 510, 619
Construction and Application of Uniform Interstate Family Support Act, 90 A.L.R. 5th 1.
Page 116
49 of 145 DOCUMENTS

Parent and Child

1. In General
§ 48 Character and extent of parental obligation
When a minor child is living with, and being supported by, both of his natural parents, the statutory responsibility for
the child's support is solely that of the natural parents. n1 The legal duty of a parent to support his minor children is af-
fected by many considerations. His health, his means, his station in life, as well as similar considerations on the part of
the child, have a bearing upon it. n2 The tests of the parent's ability to furnish adequate support are ordinarily compara-
tive rather than absolute. The relative size of the income or means of the parent and of the child must be considered. n3
The earning capacity and total financial circumstances of each parent, and not merely his or her actual income, must be
considered in determining the amount of child support to be paid by a parent. n4 A parent who is unable to support his
child is not liable. n5
A parent is not relieved of his child-support duty merely because of outstanding debts he has incurred. n6 A parent's vol-
untary assumption of additional obligations cannot be the basis for denying support for an earlier child. n7
Where a child support order or agreement specifies twenty-one years as the age at which a father's duty to make support
payments will end and the age of majority is lowered by statute from twenty-one to eighteen years, the duty of support
terminates at the new age of majority, though there is also authority that the duty continues until the child reaches age
twenty-one. n8
A parent who is incarcerated for a crime other than nonsupport is entitled to have his obligation to pay child support
suspended during the period of his incarceration unless it is affirmatively shown that the parent has income or assets to
make support payments. n9
The fact that the parent is himself an infant does not excuse him from the performance of his obligation to support his
family. n10
FOOTNOTES:
n1 Weinand v. Weinand, 260 Neb. 146, 616 N.W.2d 1 (2000).
In an intact family, the law assumes that the parents will provide for the children as well as they can. Kiken v. Kiken, 149 N.J. 441, 694 A.2d
557 (1997).
n2 State v. Moran, 99 Conn. 115, 121 A. 277, 36 A.L.R. 862 (1923); Com. ex rel. Gitman v. Gitman, 428 Pa. 387, 237 A.2d 181 (1967);
Evans v. Evans, 125 Tenn. 112, 140 S.W. 745 (1911); Springstun v. Springstun, 131 Wash. 109, 229 P. 14, 40 A.L.R. 595 (1924); Edwards
v. Edwards, 97 Wis. 2d 111, 293 N.W.2d 160 (1980).
As to conditions under which a parent will be permitted to resort to the independent means of a child in order to provide support, see § 63
Page 117
n3 Williams v. Williams, 261 N.C. 48, 134 S.E.2d 227 (1964); Cooper v. Cooper, 513 S.W.2d 229 (Tex. Civ. App. Houston 1st Dist. 1974).
n5 Smith v. Workmen's Compensation Appeals Bd., 245 Cal. App. 2d 292, 53 Cal. Rptr. 816 (4th Dist. 1966); Haugen v. Swanson, 222
Minn. 203, 23 N.W.2d 535 (1946).
n6 Hampshire v. Hampshire, 70 Idaho 522, 223 P.2d 950, 21 A.L.R.2d 1159 (1950).
n9 Foster v. Foster, 99 A.D.2d 284, 471 N.Y.S.2d 867 (2d Dep't 1984).
n10 Land v. State, 71 Fla. 270, 71 So. 279 (1916); Willits v. Willits, 76 Neb. 228, 107 N.W. 379 (1906); Cochran v. Cochran, 196 N.Y. 86,
89 N.E. 470 (1909).
SUPPLEMENT:
Cases
A custodial parent's waiver of a child's right to all support would clearly be contrary to public policy and unenforceable
by the courts because it is not in the best interests of the child. Dechant v. Florida Dept. of Revenue ex rel. Rees, 915
So. 2d 215 (Fla. Dist. Ct. App. 3d Dist. 2005).
358, 375 to 409, 440 to 498, 500 to 510, 619
Excessiveness or adequacy of money awarded as child support, 27 A.L.R. 4th 864.
Statutory change of age of majority as affecting pre-existing status or rights, 75 A.L.R. 3d 228.
Page 118
50 of 145 DOCUMENTS

Parent and Child

1. In General
§ 49 Obligation as limited to "necessaries"
Parents have a duty to provide their children with the basic necessities of life. n1 Child support is not to provide for the
accumulation of capital by children, but is to provide for their reasonable needs. n2 The amount of child support is based
largely on the reasonable needs of the child for health, education, and maintenance. n3 The parent's duty of support is not
limited to those bare necessities required to sustain life, but includes also maintenance in accordance with the child's
station in life and customary mode of living, n4 and if a parent can afford more than the mere necessities, he will be re-
quired to pay more. n5 However, extravagant demands need not be met, even if the parent has unlimited means. n6
What constitutes reasonable needs for a child varies with the circumstances of the parties involved. n7 The kind and
amount of food, clothing, shelter, etc., necessary must generally be determined upon the facts in each case, taking into
consideration the pecuniary resources of the parent, n8 and generally the means, ability, social position, and circum-
stances of the particular parent and child. What are necessaries in the particular case is ordinarily, therefore, a mixed
question of fact and law, and is usually left to a jury to decide. n9
FOOTNOTES:
n1 Willers ex rel. Powell v. Willers, 255 Neb. 769, 587 N.W.2d 390 (1998).
n2 Smith v. Smith, 341 Ark. 590, 19 S.W.3d 590 (2000).
n7 Moulds v. Bradley, 791 So. 2d 220 (Miss. 2001).
n8 De Brauwere v. De Brauwere, 203 N.Y. 460, 96 N.E. 722 (1911).
n9 Osborn v. Weatherford, 27 Ala. App. 258, 170 So. 95 (1936); State v. Moran, 99 Conn. 115, 121 A. 277, 36 A.L.R. 862 (1923); Long v.
Carter, 39 N.M. 255, 44 P.2d 1040 (1935); Crafts v. Carr, 24 R.I. 397, 53 A. 275 (1902); Esteb v. Esteb, 138 Wash. 174, 244 P. 264, 47
A.L.R. 110 (1926), opinion supplemented on reh'g, 138 Wash. 174, 246 P. 27 (1926).
Page 119
SUPPLEMENT:
Cases
The law of necessaries, rather than the rule provided in child support guidelines, applies to determine the amount of an
award of retroactive child support for the period before a paternity petition is filed. Brown v. Shannahan, 141 S.W.3d 77
(Mo. Ct. App. E.D. 2004).
358, 375 to 409, 440 to 498, 500 to 510, 619
Page 120
51 of 145 DOCUMENTS

Parent and Child

1. In General
§ 50 Amount; discretion of court
The amount to be awarded as child support rests within the sound discretion of the trial court, n1 and will not be reversed
absent a clear showing of abuse of discretion. n2 Each case must be decided essentially on the basis of its own facts and
circumstances, n3 and the amount is subject to modification in case of a future change in circumstances. n4 The primary
consideration is the economic circumstances of the child and of the parent against whom support is sought. n5 The ele-
ment of fault, as between the parents, has no bearing on the amount to be awarded for the support of a child. n6
Escalation clauses in child support awards which are related to the noncustodial parent's ability to pay and the child's
needs are valid. n7
FOOTNOTES:
n2 Smith v. Smith, 341 Ark. 590, 19 S.W.3d 590 (2000); In re Marriage of Flaherty, 31 Cal. 3d 637, 183 Cal. Rptr. 508, 646 P.2d 179
(1982); Pippinger v. Pippinger, 145 Colo. 140, 357 P.2d 911 (1960); Bell v. Bell, 190 A.2d 265 (D.C. 1963); French v. French, 146 So. 2d
584 (Fla. Dist. Ct. App. 2d Dist. 1962); Murray v. Murray, 206 Ga. 702, 58 S.E.2d 420 (1950); Blackman v. Blackman, 241 Iowa 30, 40
N.W.2d 18 (1949); Roberts v. Roberts, 307 S.W.2d 757 (Ky. 1957); Russ v. Russ, 126 So. 2d 854 (La. Ct. App. 2d Cir. 1961); Caccamise v.
Caccamise, 130 Md. App. 505, 747 A.2d 221 (2000), cert. denied, 359 Md. 29, 753 A.2d 2 (2000); Holmes v. Holmes, 255 Minn. 270, 96
N.W.2d 547 (1959); Magee v. Magee, 755 So. 2d 1057 (Miss. 2000); McCarthy v. McCarthy, 329 S.W.2d 236 (Mo. Ct. App. 1959); Stavens
v. Stavens, 123 N.H. 79, 455 A.2d 1065 (1983); Williams v. Williams, 261 N.C. 48, 134 S.E.2d 227 (1964); Zink v. Zink, 1964 OK 49, 390
P.2d 504 (Okla. 1964); Trombley v. Trombley, 225 Or. 209, 357 P.2d 283 (1960); Com. ex rel. Weisberg v. Weisberg, 193 Pa. Super. 204,
164 A.2d 54 (1960); Sullivan v. Sullivan, 460 A.2d 1248 (R.I. 1983); Hopkins v. Hopkins, 343 S.C. 301, 540 S.E.2d 454 (2000); Loeb v.
Loeb, 118 Vt. 472, 114 A.2d 518 (1955); Ring v. Ring, 185 Va. 269, 38 S.E.2d 471, 165 A.L.R. 1237 (1946); Stewart v. Stewart, 209 W.
Va. 550, 550 S.E.2d 86 (2001); Cook v. Cook, 208 Wis. 2d 166, 560 N.W.2d 246 (1997).
As to the amount of a child support order under the Uniform Marriage and Divorce Act, see 24A Am. Jur. 2d, Divorce and Separation §
1030.
n5 24A Am. Jur. 2d, Divorce and Separation §§ 1027, 1029.

Page 121
SUPPLEMENT:
Research References
West's Key Number Digest, Child Support [westkey]378, 454 to 457, 459
West's Key Number Digest, Divorce [westkey]219, 255, 277
A.L.R. Digest: Child Support §§ 32, 55, 165, 378, 396, 454 to 457, 459, 468
A.L.R. Digest: Divorce and Separation §§ 219, 255, 277, 304, 305, 308, 309(4), 309.5(3), 310, 311(1, 2, 5), 311.5,
312.5
A.L.R. Digest: Parent and Child §§ 3.1(5), 3.1(8), 3.3(4), 3.3(8), 3.3(9)
C.J.S., Divorce §§ 665 to 736
Change in Circumstances Justifying Modification of Child Support, 1 Am. Jur. Proof of Facts 2d 1
Interstate Enforcement of Child Support Orders, 37 Am. Jur. Trials 648 §§ 39 to 40
13B Am. Jur. Legal Forms 2d, Parent and Child §§ 191 to 209
8B Am. Jur. Pleading and Practice Forms, Divorce and Separation §§ 565 to 567, 646, 684, 971
American Law Institute, Principles of the Law of Family Dissolution, Tentative Draft No 4, chs. 2 to 3 (2000)
Melli, Guideline Review: Child Support and Timesharing by Parents, 33 Fam. L. Q. 219 (1999)
Morgan, Child Support Guidelines and the Shared Custody Dilemma, 10 Div. Lit. 213 (1998)
Morgan, Modification of Child Support Judgments, 12 Amer. J. Fam. L. (1998)
Krause, Family Law (4th), Ch. 16, 20
Schneider, An Invitation to Family Law, Ch. XI
Westfall, Family Law, Ch. 8 (A)
Weyrauch, Cases and Materials on Family Law, Ch. 5 (D)
Cases
Periodic child support award for one out-of-wedlock child based on 40% of father's gross income was not excessive; up-
ward deviation from 17-23% was based on findings that mother had no income, and that father had been paying that
amount as temporary child support and alimony. West's Ga.Code Ann. § 19-6-15(b)(5). Ward v. Ward, 268 Ga. App.
394, 601 S.E.2d 851 (2004).
Page 122
Determinations of child support obligations are within the trial court's discretion and will not be set aside unless they are
clearly erroneous. Cubel v. Cubel, 876 N.E.2d 1117 (Ind. 2007).
358, 375 to 409, 440 to 498, 500 to 510, 619
Effect on Child Support Duties and Arrearages of Remarriage of Parents to Each Other, 9 A.L.R.6th 437
Right to Credit on Child Support for Continued Payments to Custodial Parent for Child Who has Reached Majority or
Otherwise Become Emancipated, 4 A.L.R.6th 531
Right to Credit on Child Support for Contributions to Travel Expenses of Child While Child Is Not Living with Obligor
Parent, 3 A.L.R.6th 641
Right to Credit on Child Support for Contributions to Educational Expenses of Child While Child is Not Living with
Obligor Parent, 2 A.L.R.6th 439
Consideration of obligor spouse's or parent's personal-injury recovery or settlement in fixing alimony or child-support
award, 59 A.L.R. 5th 489.
Support Modification Agreement Made by Parties, 1 Am. Jur. Proof of Facts 2d 1
Am. Jur. Pleading and Practice Forms, Divorce and Separation §§ 565 to 567, 646, 657, 684, 971
American Law Institute, Principles of the Law of Family Dissolution, Tentative Draft No 4, Ch. 2-3 (2000)
Page 123
52 of 145 DOCUMENTS

Parent and Child

1. In General
§ 51 Termination of obligation by act of child
Generally, a parent cannot be released from his child-support obligation by the child, since the latter, because of his mi-
nority, cannot waive his right to support. n1 However, there is authority that a parent is under no obligation to support his
or her unmarried minor child who voluntarily leaves the parent's home or refuses to return home against the parent's
wishes. n2
A parent's support obligation is terminated by the child's voluntary acts that constitute a complete emancipation. n3 How-
ever, a parent's obligation to support his child should not be terminated because the child acts rudely, disrespectfully, or
disobediently toward the parent, n4 or because the child quits school against the parent's wishes. n5
FOOTNOTES:
n1 Barnett v. Barnett, 243 A.2d 51 (D.C. 1968).
n2 § 61.
n3 § 79.
n4 Roe v. Doe, 29 N.Y.2d 188, 324 N.Y.S.2d 71, 272 N.E.2d 567 (1971); Yarborough v. Yarborough, 168 S.C. 46, 166 S.E. 877 (1932),
cert. granted, 289 U.S. 718, 53 S. Ct. 688, 77 L. Ed. 1470 (1933) and rev'd on other grounds, 290 U.S. 202, 54 S. Ct. 181, 78 L. Ed. 269, 90
A.L.R. 924 (1933); Straver v. Straver, 26 N.J. Misc. 218, 59 A.2d 39 (Ch. 1948).
As to the conduct of a child toward a parent constituting emancipation, see 24A Am. Jur. 2d, Divorce and Separation § 1043.
n5 Allison v. Binkley, 222 Ark. 383, 259 S.W.2d 511 (1953); In re Marriage of Donahoe, 114 Ill. App. 3d 470, 70 Ill. Dec. 152, 448 N.E.2d
1030 (2d Dist. 1983).
SUPPLEMENT:
Cases
Parents' common-law duty of support continues until the child reaches the age of majority, or until the death of the child
or the obligor parent. State of Kansas/State of Iowa ex rel. Secretary of Social and Rehabilitation Services v. Bohrer,
286 Kan. 898, 189 P.3d 1157 (2008).
Page 124
358, 375 to 409, 440 to 498, 500 to 510, 619
West's Key Number Digest, Child Support [westkey]375 to 409, 460
What voluntary acts of child, other than marriage or entry into military service, terminate parent's obligation to support,
55 A.L.R. 5th 557.
Page 125
53 of 145 DOCUMENTS

Parent and Child

1. In General
§ 52 Shifting burden of support to child
Since child support is a parent's legal duty, a parent cannot charge his children for providing it. n1 The law will not ordi-
narily raise any implied promise on the part of the child to pay for the support furnished by the parent, the inference or
presumption being that it is furnished gratuitously. n2 Likewise, the law does not imply any promise on the part of a child
to reimburse his parents for the cost of an education furnished by the latter, even for the expense of a college course. In
the absence of any express promise or expectation at the time on the part of either parent or child that the child should
pay for his education, there is not even a moral obligation on the part of the child for such reimbursement. n3 It has ac-
cordingly been held that a promise made afterward to pay for such education, even though made in the form of a prom-
issory note, wants legal consideration and is not enforceable. n4 However, where the parent advances money for higher
education under an agreement that it is to be repaid by the child, such agreement, if ratified after the child attains major-
ity, is enforceable against the child. n5
FOOTNOTES:
n1 Ferrell v. Ferrell, 103 W. Va. 704, 138 S.E. 399 (1927).
n2 Fisher v. Drew, 247 Mass. 178, 141 N.E. 875, 30 A.L.R. 798 (1924); Rogers v. Baldridge, 18 Tenn. App. 300, 76 S.W.2d 655 (1934); In
re King's Guardianship, 151 Wash. 120, 275 P. 82, 67 A.L.R. 1397 (1929).
n3 Gooch v. Gooch, 70 W. Va. 38, 73 S.E. 56 (1911).
As to whether the expense of higher education for a child can be considered an advancement, see 3 Am. Jur. 2d, Advancements § 29.
n4 Gooch v. Gooch, 70 W. Va. 38, 73 S.E. 56 (1911).
n5 Robertson v. Robertson, 229 So. 2d 642 (Fla. Dist. Ct. App. 3d Dist. 1969).
358, 375 to 409, 440 to 498, 500 to 510, 619
Page 126
West's Key Number Digest, Child Support [westkey]55, 243

Page 127
54 of 145 DOCUMENTS

Parent and Child

2. Effect of Agreements on Support Obligation
§ 53 between parents
A parent who undertakes to bind himself by a contract to support a child to whom he owes a legal or a moral duty to
provide such support may be held to his agreement, if it rests upon a sufficient consideration, n1 and if such a contract is
based solely on his legal obligation to support his child, he will not be permitted to avoid it on the theory that the legal
obligation is not a sufficient consideration to support his promise. n2
Although there is some authority to the effect that a contract for the purpose of relieving a father of his child-support
obligation is against public policy, n3 it is not illegal for divorced or separated parents to contract with each other as to
the support of their children. As between the parents, such a contract will ordinarily be enforced, if this can be done
without injury to the interest of the children. n4 However, unless the contract insures the proper care and maintenance of
the child it will not be recognized by the courts, and it will not be enforced longer than appears to be for the best interest
of the child, since the parents in entering into the contract must be presumed to have done so in contemplation of their
obligations under the law and the rights of the child. n5 Even where such an agreement is enforceable, as between the
parents, it cannot deprive the child of his legal right to be supported by the parent. n6 A parent's obligation to support his
or her minor child cannot be bargained away or waived. n7 Moreover, such a contract is not binding on the court and can-
not deprive it of its power to make whatever provision for support the child's welfare may require. n8 Also, the court may
enforce the parent's obligation in a manner inconsistent with his contractual undertaking regarding it. n9
FOOTNOTES:
n2 Ward v. Goodrich, 34 Colo. 369, 82 P. 701 (1905).
n3 Warrick v. Hender, 198 So. 2d 348 (Fla. Dist. Ct. App. 4th Dist. 1967); In re Adoption of P. J. K., 359 S.W.2d 360 (Mo. Ct. App. 1962).
n4 Ward v. Goodrich, 34 Colo. 369, 82 P. 701 (1905); Anthony v. Anthony, 204 N.W.2d 829 (Iowa 1973)); Whicker v. Whicker, 711
S.W.2d 857 (Ky. Ct. App. 1986).
As to parents' agreements for child support under the Uniform Marriage and Divorce Act, see 24A Am. Jur. 2d, Divorce and Separation §
1023.
n6 Kopak v. Polzer, 4 N.J. 327, 72 A.2d 869 (1950); People v. Sorensen, 68 Cal. 2d 280, 66 Cal. Rptr. 7, 437 P.2d 495, 25 A.L.R.3d 1093
(1968); Barnett v. Barnett, 243 A.2d 51 (D.C. 1968); Application of Martin, 76 Idaho 179, 279 P.2d 873, 53 A.L.R.2d 582 (1955); Boggs v.
Boggs, 138 Md. 422, 114 A. 474 (1921); Boden v. Boden, 42 N.Y.2d 210, 397 N.Y.S.2d 701, 366 N.E.2d 791 (1977); Dyer v. State, 58
Page 128
Okla. Crim. 317, 52 P.2d 1080 (1935); Buchanan v. Buchanan, 170 Va. 458, 197 S.E. 426, 116 A.L.R. 688 (1938); Clay v. Clay, 206 W. Va.
564, 526 S.E.2d 530 (1999); Whitt v. State ex rel. Wright, 2001 WY 128, 36 P.3d 617 (Wyo. 2001).
n7 Bustin v. Bustin, 969 S.W.2d 697 (Ky. 1998); Geramifar v. Geramifar, 113 Md. App. 495, 688 A.2d 475 (1997); Fish v. Behers, 559 Pa.
523, 741 A.2d 721 (1999); Erhart v. Evans, 2001 WY 79, 30 P.3d 542 (Wyo. 2001).
n9 Isaacs v. Deutsch, 80 So. 2d 657, 52 A.L.R.2d 1118 (Fla. 1955).
SUPPLEMENT:
Cases
Obligation of a parent to not waive or otherwise contract away their child's right to support does not preclude parents
from making contracts or agreements concerning their child's support so long as the best interests of the child are
served. Laussermair v. Laussermair, 55 So. 3d 705 (Fla. Dist. Ct. App. 4th Dist. 2011).
Deceased mother's estate did not possess the legal authority to assign any interest in child support arrearages to attorney,
who obtained a judgment against deceased mother for nonpayment of fees, and thus, attorney was not authorized to seek
child support arrearages from father; father's duty to pay child support was only enforceable by his children or someone
acting on their behalf, not by the estate of the deceased mother. Robert S. Thurlow, P.A. v. LaFata, 915 So. 2d 737 (Fla.
Dist. Ct. App. 5th Dist. 2005).
Unmarried putative father who stipulated to a final judgment of paternity and agreed to pay child support was not enti-
tled to relief from such judgment 11 years later on the basis of mother's alleged fraud in informing him that he was the
biological father of child, even though putative father submitted DNA tests showing that he was not the child's biologi-
cal father; putative father's motion for relief from judgment was not filed within one year of entry of the final judgment,
and mother's alleged fraud was intrinsic, rather than extrinsic, and could not support an independent action to set aside
the judgment. West's F.S.A. RCP Rule 1.540(b)(3). Department of Revenue ex rel. Stephens v. Boswell, 915 So. 2d 717
(Fla. Dist. Ct. App. 5th Dist. 2005).
Fact that unmarried putative father, who stipulated to a final judgment of paternity and agreed to pay child support, was
not the biological father of child did not constitute exceptional circumstances entitling putative father to relief from
judgment 11 years later, pursuant to rule authorizing such relief if it is no longer equitable that the judgment have
prospective application; putative father had opportunity to contest paternity before entry of judgment, and it was equally
inequitable to deprive child of parental support based on facts that could have been determined before entry of judg-
ment. West's F.S.A. RCP Rule 1.540(b)(5). Department of Revenue ex rel. Stephens v. Boswell, 915 So. 2d 717 (Fla.
Dist. Ct. App. 5th Dist. 2005).
A child's right to adequate support cannot be bargained away by either parent and any release or compromise is invalid
to the extent it prejudices a child's welfare. Kraisinger v. Kraisinger, 2007 PA Super 197, 928 A.2d 333 (2007).
358, 375 to 409, 440 to 498, 500 to 510, 619
West's Key Number Digest, Child Support [westkey]381, 456, 510
Page 129
Right to Credit on Child Support for Continued Payments to Custodial Parent for Child Who has Reached Majority or
Otherwise Become Emancipated, 4 A.L.R.6th 531
Validity and effect, as between former spouses, of agreement releasing parent from payment of child support provided
for in an earlier divorce decree, 100 A.L.R. 3d 1129.
A.L.R. 2d 203 § 16.
Page 130
55 of 145 DOCUMENTS

Parent and Child

2. Effect of Agreements on Support Obligation
§ 54 For support by third person
A parent's duty to care for his children is a legal duty as well as a moral obligation and it cannot be transferred to a third
person except as authorized by law. n1 As between himself and his child, a parent cannot relieve himself of his common-
law or statutory obligation to support the child by entering into an agreement under which someone else assumes that
responsibility. n2 However, a contract with a parent whereby a relative n3 or even a third person agrees to care for and
maintain the child may be upheld or given effect in a proper case, where the welfare and best interest of the child will be
served by doing so. n4
If a person has undertaken to rear, maintain, and educate an infant child upon the promise of its parent to make reim-
bursement for the necessary expense incurred, and pursuant to such agreement has provided the child with a home, the
parent may be held liable for the amount expended for such purposes irrespective of whether such expenses were
strictly "necessaries." n5
FOOTNOTES:
n1 Smith v. Painter, 408 S.W.2d 785 (Tex. Civ. App. Eastland 1966), writ refused n.r.e., 412 S.W.2d 28 (Tex. 1967).
n2 Emrich v. McNeil, 126 F.2d 841, 146 A.L.R. 1146 (App. D.C. 1942); Barrett v. Barrett, 44 Ariz. 509, 39 P.2d 621 (1934); Burke v.
Burke, 137 Conn. 74, 75 A.2d 42 (1950); Grimes v. Grimes, 179 Kan. 340, 295 P.2d 646 (1956); Garlock v. Garlock, 279 N.Y. 337, 18
N.E.2d 521, 120 A.L.R. 1331 (1939); Buchanan v. Buchanan, 170 Va. 458, 197 S.E. 426, 116 A.L.R. 688 (1938).
n3 In re Youngerman's Estate, 136 Iowa 488, 114 N.W. 7 (1907); Bassett v. American Baptist Publication Soc., 215 Mich. 126, 183 N.W.
747, 15 A.L.R. 213 (1921); Fletcher v. Hickman, 50 W. Va. 244, 40 S.E. 371 (1901).
n4 Sackhiem v. State, 92 Tex. Crim. 437, 244 S.W. 377, 24 A.L.R. 1072 (1922).
n5 Myers v. Saltry, 163 Ky. 481, 173 S.W. 1138 (1915).
358, 375 to 409, 440 to 498, 500 to 510, 619
Page 131

Page 132
56 of 145 DOCUMENTS

Parent and Child

3. Obligation of Respective Parents, In General
§ 55 Obligations of respective parents
There is authority that the obligation to support minor children rests upon both parents. n1 In some jurisdictions, the com-
mon law is interpreted as casting the burden of support upon both parents equally. n2 Also, there is an increasing ten-
dency, especially in decisions based on modern statutes, to consider child support the obligation of both parents and to
require each to contribute in proportion to his or her ability. n3
Other statutes impose the duty of support on the parent entitled to custody. n4 Under such a statute, where it is also pro-
vided that the mother must help if the support the father is able to give is inadequate, it has been held that the primary
duty continues to rest on the father even where custody has been awarded to the mother. n5
FOOTNOTES:
n1 Matter of Kummer, 93 A.D.2d 135, 461 N.Y.S.2d 845 (2d Dep't 1983); Barrett v. Barrett, 44 Ariz. 509, 39 P.2d 621 (1934); Faitz v.
Ruegg, 114 Cal. App. 3d 967, 171 Cal. Rptr. 149 (1st Dist. 1981); Morton F. Plant Hosp. Ass'n, Inc. v. McDaniel, 425 So. 2d 1213 (Fla.
Dist. Ct. App. 2d Dist. 1983); Doughty v. Engler, 112 Kan. 583, 211 P. 619, 30 A.L.R. 1065 (1923); Stogner v. Stogner, 739 So. 2d 762 (La.
1999); Alamance County Hosp., Inc. v. Neighbors, 315 N.C. 362, 338 S.E.2d 87 (1986); Richter v. Houser, 1999 ND 147, 598 N.W.2d 193
(N.D. 1999); Costello v. LeNoir, 462 Pa. 36, 337 A.2d 866 (1975); Orsak v. Orsak, 642 S.W.2d 566 (Tex. App. Dallas 1982); Childers v.
Childers, 89 Wash. 2d 592, 575 P.2d 201 (1978); Woodward v. Woodward, 428 P.2d 389 (Wyo. 1967).
Although a non-custodial parent has a duty to provide financial support, a custodial parent must also demonstrate that he or she is using that
money for the care and upbringing of the child. U.S. v. Lewko, 269 F.3d 64 (1st Cir. 2001) (applying New Hampshire law).
As to the continuing duty of parents to support their children after the dissolution of a marriage, see 24A Am. Jur. 2d, Divorce and Separa-
tion § 1001.
n2 Rowell v. Rowell, 97 Kan. 16, 154 P. 243 (1916); State v. Langford, 90 Or. 251, 176 P. 197 (1918); Costello v. LeNoir, 462 Pa. 36, 337
A.2d 866 (1975).
n3 24A Am. Jur. 2d, Divorce and Separation §§ 1001, 1020 et seq.
n4 Owens v. State, 6 Okla. Crim. 110, 116 P. 345 (1911).
As to a mother's secondary liability where the father is primarily liable under such a statute, see § 45.
n5 Dyer v. State, 58 Okla. Crim. 317, 52 P.2d 1080 (1935).
SUPPLEMENT:
Page 133
Cases
Parents' obligation to support their children is a conjoint obligation of both parents, with each parent contributing in pro-
portion to his or her resources. LSA-C.C. art. 227. Vaccari v. Vaccari, 50 So. 3d 139 (La. 2010).
358, 375 to 409, 440 to 498, 500 to 510, 619
West's Key Number Digest, Child Support [westkey]70 to 99, 250 to 256
A.L.R. 2d 203 §§ 10, 11.
Page 134
57 of 145 DOCUMENTS

Parent and Child

§ 56 Father of child artificially conceived
A husband who consents to his wife's being artificially inseminated has an obligation to furnish support for the child
thus conceived. n1
FOOTNOTES:
n1 People v. Sorensen, 68 Cal. 2d 280, 66 Cal. Rptr. 7, 437 P.2d 495, 25 A.L.R.3d 1093 (1968); Anonymous v. Anonymous, 41 Misc. 2d
886, 246 N.Y.S.2d 835 (Sup 1964).
358, 375 to 409, 440 to 498, 500 to 510, 619
Rights and obligations resulting from human artificial insemination, 83 A.L.R. 4th 295
Page 135
58 of 145 DOCUMENTS

Parent and Child

§ 57 When one parent fraudulently misrepresents facts regarding sterility or birth control
The child support obligation of a sexual partner deceived as to the sterility of, or use of birth control by, the other part-
ner is not avoided or mitigated on the theory that the deception violated the deceived partner's right to privacy or right to
procreative choice. n1 Some courts have recognized that allowing a father to defend a paternity or support proceeding by
claiming that the mother of his child had fraudulently misrepresented her use of birth control directly challenged the
equal protection rights of the out-of-wedlock child by creating a new and inferior category of such children based upon
the circumstances of conception and subordinating the constitutional rights and other interests of that child to those of
one of the parents. n2 The refusal to recognize as a valid counterclaim in a paternity and child support proceeding a fa-
ther's claim of misrepresentation by a mother of her use of birth control, causing an unwanted child to be born, does not
violate the father's due process rights by creating an irrebuttable presumption that the child's best interests in support lay
in the application of a strict, formularistic computation of support against the father. n3 One parent's fraudulent misrepre-
sentations to the other concerning his or her sterility or use of birth control, whether raised as a defense or counterclaim
to a proceeding to establish child support, are irrelevant to the issue of support under support statutes which direct the
court to look to the needs and welfare of the child and the means of the parents to provide for those needs, without refer-
ence to the fault of either parent in causing conception of the child. n4 A parent's actions in fraudulently misrepresenting
to the other parent the use of birth control pills, when such representation is knowingly false, cannot serve as a waiver,
release, or compromise of their child's statutory right to support. n5
Reasoning that the state's interests are rational or compelling, and that fathers of illegitimate children are not entitled to
rights greater than those of legitimate children, who could not compel or prevent abortion, courts have ruled that support
statutes do not violate state or federally guaranteed rights to equal protection or due process of the father of an illegiti-
mate child by failing to relieve him of his support duties where the mother chooses not to abort the fetus. n6
FOOTNOTES:
n1 Stephen K. v. Roni L., 105 Cal. App. 3d 640, 164 Cal. Rptr. 618, 31 A.L.R.4th 383 (2d Dist. 1980); Beard v. Skipper, 182 Mich. App.
352, 451 N.W.2d 614, 2 A.L.R.5th 1060 (1990); L. Pamela P. v. Frank S., 59 N.Y.2d 1, 462 N.Y.S.2d 819, 449 N.E.2d 713 (1983); Linda D.
v. Fritz C., 38 Wash. App. 288, 687 P.2d 223 (Div. 1 1984).
n2 Inez M. v. Nathan G., 114 Misc. 2d 282, 451 N.Y.S.2d 607 (Fam. Ct. 1982); Linda D. v. Fritz C., 38 Wash. App. 288, 687 P.2d 223
(Div. 1 1984).
n3 Linda D. v. Fritz C., 38 Wash. App. 288, 687 P.2d 223 (Div. 1 1984).
n4 Beard v. Skipper, 182 Mich. App. 352, 451 N.W.2d 614, 2 A.L.R.5th 1060 (1990); L. Pamela P. v. Frank S., 59 N.Y.2d 1, 462 N.Y.S.2d
819, 449 N.E.2d 713 (1983); Smith v. Price, 74 N.C. App. 413, 328 S.E.2d 811 (1985), review allowed, 314 N.C. 332, 333 S.E.2d 490
(1985) and decision aff'd in part, rev'd in part on other grounds, 315 N.C. 523, 340 S.E.2d 408 (1986); Linda D. v. Fritz C., 38 Wash. App.
288, 687 P.2d 223 (Div. 1 1984).
Page 136
n5 Faske v. Bonanno, 137 Mich. App. 202, 357 N.W.2d 860 (1984).
n6 People in Interest of S. P. B., 651 P.2d 1213 (Colo. 1982); Dorsey v. English, 283 Md. 522, 390 A.2d 1133 (1978).
358, 375 to 409, 440 to 498, 500 to 510, 619
Parent's child support liability as affected by other parent's fraudulent misrepresentation regarding sterility or use of
birth control, or refusal to abort pregnancy, 2 A.L.R. 5th 337.
Page 137
59 of 145 DOCUMENTS

Parent and Child

§ 58 Effect of parent's death; mother as surviving parent
The parent's support obligation normally continues during his lifetime. n1 Since the parent has no common-law obliga-
tion to provide for the support of his infant children after his death, his liability for future support is normally terminated
by that event. n2
In some jurisdictions, a parent may be ordered, either under a statute or by inherent power of the court, to maintain life
insurance for the benefit of the children, while in other jurisdictions, no such power exists. n3 There is no reason of pub-
lic policy to prevent a father from making provision for the support of his children after his death. n4 If he does so, and if
the contract is plainly intended by him to create a continuing debt in favor of his children which will constitute a claim
against his estate, it will not, on grounds of public policy, be denied that effect. n5 Where the father agrees to make child-
support payments during minority, this has been held to indicate an intent that payments shall continue after the father's
death. n6
Upon the death of one parent, the duty of supporting dependent minor children ordinarily falls upon the other parent. n7
FOOTNOTES:
n1 Blades v. Szatai, 151 Md. 644, 135 A. 841, 50 A.L.R. 232 (1927).
n2 Pittman v. Pittman, 419 So. 2d 1376 (Ala. 1982); Gordon v. Valley Nat. Bank of Ariz., 16 Ariz. App. 195, 492 P.2d 444 (Div. 2 1972);
Foskey v. Foskey, 257 Ga. 736, 363 S.E.2d 547 (1988); In re Sweeney's Estate, 210 Kan. 216, 500 P.2d 56 (1972); Dupuis v. Click, 135
N.H. 333, 604 A.2d 576 (1992); Matter of North Carolina Inheritance Taxes, 303 N.C. 102, 277 S.E.2d 403 (1981); Hutchings v. Bates, 406
S.W.2d 419 (Tex. 1966); Scott v. Wagoner, 184 W. Va. 312, 400 S.E.2d 556, 14 A.L.R.5th 1031 (1990).
As to the effect of a parent's death on a child support decree entered in a divorce case, see 24 Am. Jur. 2d, Divorce and Separation §§ 1039,
1040.
n4 Stone v. Bayley, 75 Wash. 184, 134 P. 820 (1913).
n5 Gessler v. Gessler, 273 F.2d 302 (5th Cir. 1959) (applying Florida and Pennsylvania law); Matter of North Carolina Inheritance Taxes,
303 N.C. 102, 277 S.E.2d 403 (1981); Gilford v. Wurster, 24 Ohio App. 3d 77, 493 N.E.2d 258 (9th Dist. Lorain County 1983); Stone v.
Bayley, 75 Wash. 184, 134 P. 820 (1913).

Page 138
n7 Copeland v. Copeland, 65 So. 2d 853 (Fla. 1953); Chapin v. Cummings, 191 Ga. 408, 12 S.E.2d 312 (1940); Carr v. Prader, 725 A.2d
291 (R.I. 1999); Moses v. Akers, 203 Va. 130, 122 S.E.2d 864 (1961); In re King's Guardianship, 151 Wash. 120, 275 P. 82, 67 A.L.R. 1397
(1929).
358, 375 to 409, 440 to 498, 500 to 510, 619
Death of obligor parent as affecting decree for support of child, 14 A.L.R. 5th 557.
Page 139
60 of 145 DOCUMENTS

Parent and Child

4. Effect on Liability of Separation from Child
§ 59 arated from child
With respect to the liability of a parent for the support of a minor child not living with him, the views of the courts have
not been entirely in harmony. Such liability depends on the circumstances in the case. n1 Generally, a court is not re-
quired to make an allowance for the maintenance of a child in favor of the spouse to whom custody is awarded. n2 A par-
ent is not relieved of his or her duty to support a minor child merely because he or she does not have actual or legal cus-
tody. n3 Thus, a parent may be required by judgment or decree of court to contribute whatever sum may be adjudged nec-
essary as an allowance for the education of a child no longer in his custody, provided such education may properly be
deemed a necessary. n4 Also, where the father permits his children to reside apart from him with their mother, in accor-
dance with their wishes, making no attempt to gain their custody, he cannot escape his duty on the ground that the
mother's conduct toward him had been such as to justify a judicial severance of the marital relation at his instance. n5
FOOTNOTES:
n1 P.J. Hunycutt & Co. v. Thompson, 159 N.C. 29, 74 S.E. 628 (1912); Buchanan v. Buchanan, 170 Va. 458, 197 S.E. 426, 116 A.L.R. 688
(1938); Butler v. Com., 132 Va. 609, 110 S.E. 868, 23 A.L.R. 861 (1922); Mihalcoe v. Holub, 130 Va. 425, 107 S.E. 704 (1921).
As to liability of parent for necessaries furnished to child living apart from him, see § 67.
n3 Yarborough v. Yarborough, 290 U.S. 202, 54 S. Ct. 181, 78 L. Ed. 269, 90 A.L.R. 924 (1933); Barrett v. Barrett, 44 Ariz. 509, 39 P.2d
621 (1934); Brown v. Brown, 132 Ga. 712, 64 S.E. 1092 (1909); State v. Anderson, 209 Iowa 510, 228 N.W. 353, 67 A.L.R. 1366 (1929);
Rowell v. Rowell, 97 Kan. 16, 154 P. 243 (1916); Boggs v. Boggs, 138 Md. 422, 114 A. 474 (1921); Jacobs v. Jacobs, 136 Minn. 190, 161
N.W. 525 (1917); Laumeier v. Laumeier, 237 N.Y. 357, 143 N.E. 219, 32 A.L.R. 654 (1924).
n4 Rowell v. Rowell, 97 Kan. 16, 154 P. 243 (1916); Porter v. Porter, 168 Md. 296, 177 A. 464 (1935); Geary v. Geary, 102 Neb. 511, 167
N.W. 778, 20 A.L.R. 809 (1918), error dismissed, 251 U.S. 535, 40 S. Ct. 55, 64 L. Ed. 401 (1919); Jackman v. Short, 165 Or. 626, 109 P.2d
860, 133 A.L.R. 887 (1941); Esteb v. Esteb, 138 Wash. 174, 244 P. 264, 47 A.L.R. 110 (1926), opinion supplemented on reh'g, 138 Wash.
174, 246 P. 27 (1926).
As to a provision for education expenses in a child support award, see 24A Am. Jur. 2d, Divorce and Separation §§ 1033 et seq.
n5 Rowell v. Rowell, 97 Kan. 16, 154 P. 243 (1916).
358, 375 to 409, 440 to 498, 500 to 510, 619
Page 140

Education as element in allowance for benefit of child in decree of divorce or separation, 56 A.L.R. 2d 1207.
Page 141
61 of 145 DOCUMENTS

Parent and Child

§ 60 arated from child Where separation by act of other parent
Some courts take the view that a parent's obligation to support his child is suspended during such time as he is wrong-
fully deprived of the child's custody. n1 Accordingly, some cases hold the father not liable where the mother wrongfully
removed the child from his home, as where the mother deserted him, without fault on his part, taking the child with her.
n2
Some courts reach this conclusion even though the father subsequently assents to the arrangement, or fails to take
steps to regain custody of a child. n3 Other courts, however, assert that his parental obligation to support his children
should be deemed to continue unaffected by the conduct of the wife and mother, especially where the children are of
tender years and are incapable of deciding for themselves what course they should pursue, and the father has made no
attempt to regain their custody. n4 A mere offer by the father to support children thus taken from him if they are returned
to his custody is not sufficient to relieve him of this liability for their support, according to some decisions, where he
can recover their custody by appropriate legal proceedings if they are improperly detained from him. n5 A father is liable
for the support of a child who lives apart from him with the mother where she left him for justifiable cause or where he
deserted her. n6
In some jurisdictions, the custodial spouse's violation of the provisions of a divorce decree concerning visitation rights
is not a defense to an action for failure to pay child support, but such interference with visitation privileges can be a ba-
sis to modify the support order. n7 In other jurisdictions, however, the obligor spouse is not otherwise responsible for a
failure to pay child support where the arrears accrue while the custodial spouse is denying the obligor's visitation rights.
n8
Violation of a provision in a decree barring removal of the child from the state may also constitute a defense to an ac-
tion for enforcement of a support order. n9
FOOTNOTES:
n1 White v. White, 138 Conn. 1, 81 A.2d 450 (1951); State of N. J. v. Morales, 35 Ohio App. 2d 56, 64 Ohio Op. 2d 175, 299 N.E.2d 920
(10th Dist. Franklin County 1973).
n2 White v. White, 138 Conn. 1, 81 A.2d 450 (1951); Butler v. Com., 132 Va. 609, 110 S.E. 868, 23 A.L.R. 861 (1922).
As to the liability of a father for necessaries furnished to a child removed from the father's home by the mother without his consent, see § 67.
n3 Craddock's Case, 310 Mass. 116, 37 N.E.2d 508, 146 A.L.R. 116 (1941); Butler v. Com., 132 Va. 609, 110 S.E. 868, 23 A.L.R. 861
(1922).
n4 Maschauer v. Downs, 289 F. 540, 32 A.L.R. 1461 (App. D.C. 1923); Rowell v. Rowell, 97 Kan. 16, 154 P. 243 (1916); Beigler v. Cham-
berlin, 138 Minn. 377, 165 N.W. 128 (1917); Martinez v. State, 165 Tex. Crim. 596, 307 S.W.2d 259 (1957).
n5 Schade v. Schade, 274 Wis. 519, 80 N.W.2d 416 (1957).

Page 142
n6 Craddock's Case, 310 Mass. 116, 37 N.E.2d 508, 146 A.L.R. 116 (1941).
358, 375 to 409, 440 to 498, 500 to 510, 619
A.L.R. 2d 203 § 8.
Page 143
62 of 145 DOCUMENTS

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§ 61 arated from child Where separation by act of child
If a father is willing to support his child in his own home and the child elects to stay away without justifiable cause, the
father is not liable for its support while the child remains away, in the absence of a court order. n1 When a child who is
physically and mentally able to take care of himself leaves the parent's home voluntarily, the parent is under no obliga-
tion to pay for his support. n2 However, it is well established that a father remains obligated to support a child whom he
has deserted or abandoned, n3 or who has been forced to leave his home or to live apart from him because of the father's
misconduct. n4
A child's unwillingness to visit the noncustodial parent does not amount to emancipation terminating the parent's sup-
port obligation. n5
FOOTNOTES:
n1 Creeley v. Creeley, 258 Mass. 460, 155 N.E. 424, 52 A.L.R. 285 (1927); Parker v. Stage, 43 N.Y.2d 128, 400 N.Y.S.2d 794, 371 N.E.2d
513, 98 A.L.R.3d 328 (1977).
n2 Iroquois Iron Co. v. Industrial Commission, 294 Ill. 106, 128 N.E. 289, 12 A.L.R. 924 (1920); Dyer v. Helson, 117 Me. 203, 103 A. 161
(1918); Matter of Bylow, 92 Misc. 2d 509, 400 N.Y.S.2d 451 (Fam. Ct. 1977); P.J. Hunycutt & Co. v. Thompson, 159 N.C. 29, 74 S.E. 628
(1912).
n3 M. Martin Polokow Corp. v. Industrial Commission, 336 Ill. 395, 168 N.E. 271 (1929); Rogers v. Rogers, 93 Kan. 114, 143 P. 410
(1914); Huffman v. Hatcher, 178 Ky. 8, 198 S.W. 236 (1917); Beigler v. Chamberlin, 138 Minn. 377, 165 N.W. 128 (1917); Dean v. Dean,
241 N.Y. 240, 149 N.E. 844, 42 A.L.R. 1398 (1925); State v. Bell, 184 N.C. 701, 115 S.E. 190 (1922); Mihalcoe v. Holub, 130 Va. 425, 107
S.E. 704 (1921).
n4 State v. Anderson, 209 Iowa 510, 228 N.W. 353, 67 A.L.R. 1366 (1929); State v. Wellman, 102 Kan. 503, 170 P. 1052 (1918); Finn v.
Adams, 138 Mich. 258, 101 N.W. 533 (1904); P.J. Hunycutt & Co. v. Thompson, 159 N.C. 29, 74 S.E. 628 (1912); Com. v. Bishop, 185 Pa.
Super. 362, 137 A.2d 822 (1958); Buchanan v. Buchanan, 170 Va. 458, 197 S.E. 426, 116 A.L.R. 688 (1938).
A parent is not relieved from support obligations under circumstances where the child did not voluntarily and without good cause leave his
parent's home and is not emancipated from his parents. Thompson v. Thompson, 94 Misc. 2d 911, 405 N.Y.S.2d 974 (Fam. Ct. 1978).
As to the effect of a child's emancipation on the parent-child relationship and the duties and rights extending therefrom, see §§ 79 et seq.
SUPPLEMENT:
Page 144
Cases
A child's repudiation of a parent is not a release of a parent's financial responsibility for the payment of child support
and is not an acceptable justification to abate support payments for a child less than twenty-one years of age. Lechien v.
Wren, 950 N.E.2d 838 (Ind. Ct. App. 2011).
358, 375 to 409, 440 to 498, 500 to 510, 619
55 A.L.R. 5th 557.
Parent's obligation to support unmarried minor child who refuses to live with parent, 98 A.L.R. 3d 334.
A.L.R. 2d 203 § 8.
Page 145
63 of 145 DOCUMENTS

Parent and Child

§ 62 arated from child Where separation by judicial decree
A divorce or separation decree does not itself relieve the parents of liability for the support of the children of their mar-
riage. n1 The fact that a parent and his child are separated as the result of a judgment or decree of court does not neces-
sarily relieve the parent of his duty to support the child; n2 nor is a parent's support duty affected by the fact that he has
been deprived of custody by judicial decree. n3 A child's incarceration does not relieve his parents of their duty of sup-
port. n4 A parent's duty to support a child generally continues even where custody has been awarded to the other parent. n5
A father who has been awarded custody in a decree making no provision for support can recover, in a later action, con-
tribution from the remarried mother. n6 The judicial decree or order obligating a parent to pay a certain sum for the sup-
port of a child limits the parent's liability. n7
FOOTNOTES:
n2 Buchanan v. Buchanan, 170 Va. 458, 197 S.E. 426, 116 A.L.R. 688 (1938).
n3 Smith v. Workmen's Compensation Appeals Bd., 245 Cal. App. 2d 292, 53 Cal. Rptr. 816 (4th Dist. 1966); Elble v. Elble, 100 Ill. App.
2d 221, 241 N.E.2d 328 (5th Dist. 1968); Alvey v. Hartwig, 106 Md. 254, 67 A. 132 (1907); Creeley v. Creeley, 258 Mass. 460, 155 N.E.
424, 52 A.L.R. 285 (1927).
n4 Garver v. Garver, 981 P.2d 471 (Wyo. 1999).
n5 Yarborough v. Yarborough, 290 U.S. 202, 54 S. Ct. 181, 78 L. Ed. 269, 90 A.L.R. 924 (1933); Kresteller v. Superior Court, City and
County of San Francisco, 248 Cal. App. 2d 545, 56 Cal. Rptr. 771 (1st Dist. 1967); Barker v. Barker, 75 N.D. 253, 27 N.W.2d 576, 171
A.L.R. 447 (1947).
As to a parent's liability for support under the Uniform Marriage and Divorce Act, see 24 Am. Jur. 2d, Divorce and Separation § 1030.
n6 Hinson v. Hinson, 1 Wash. App. 348, 461 P.2d 560 (Div. 3 1969).
As to the modification of a support award or decree due to the remarriage of the obligor or custodial spouse, see 24A Am. Jur. 2d, Divorce
and Separation § 1091.
358, 375 to 409, 440 to 498, 500 to 510, 619
Page 146
Father's liability for support of child furnished after divorce decree which awarded custody to mother but made no pro-
vision for support, 91 A.L.R. 3d 530.
Page 147
64 of 145 DOCUMENTS

Parent and Child

5. Effect of Other Sources for Support on Parent's Liability
§ 63 Resort to child's estate
Support liability should not ordinarily be affected by the earnings or the amount of the separate estate of a minor child,
unless it is established that the parents are unable to support the child adequately. n1 Where a parent has sufficient ability
to provide education for a child according to its expectancies, he is not ordinarily entitled to reimbursement for his ex-
penditures from the property of the child. n2 Social Security benefits received by a child are not relevant to the issue of
the amount of child support owed by a parent, n3 though some jurisdictions have held that in deciding whether to deviate
from the amount of child support suggested by statutory guidelines, a divorce court should consider the impact of a
child's receipt of social security benefits. n4
The general rule does not preclude resort to the child's estate for its support in proper cases, where authorized by statute.
n5
Under the Uniform Marriage and Divorce Act, the financial resources of the child are to be considered in a proceeding
for child support. n6
FOOTNOTES:
n2 Alcorn v. Alcorn, 183 Ark. 342, 35 S.W.2d 1027 (1931).
Where both a father and mother were well able to pay half of their daughter's college expenses at the college of her choice, they were prop-
erly required to do so, even though the daughter had substantial assets invested in a Uniform Gift to Minors Act account; thus, the trial court
was correct in not considering the daughter's assets in fashioning its judgment. Saliba v. Saliba, 753 So. 2d 1095, 143 Ed. Law Rep. 670
(Miss. 2000).
n3 O'Brien v. O'Brien, 136 Md. App. 497, 766 A.2d 211 (2001), cert. granted, 364 Md. 461, 773 A.2d 513 (2001) and judgment rev'd, 367
Md. 547, 790 A.2d 1 (2002); Paton v. Paton, 91 Ohio St. 3d 94, 742 N.E.2d 619 (2001).
n4 Ouellette v. Ouellette, 687 A.2d 242 (Me. 1996).
n5 Watson v. Watson, 183 Ky. 516, 209 S.W. 524, 3 A.L.R. 1575 (1919); In re Clark's Guardianship, 1924 OK 913, 104 Okla. 245, 230 P.
891 (1924).
Although income that a child receives from other sources may be a relevant consideration in departing from child support guidelines, ini-
tially, it is not normally part of the calculation of the basic child support obligation. Drummond v. State to Use of Drummond, 350 Md. 502,
714 A.2d 163 (1998).
n6 U.M.D.A. § 309(1).
Page 148
358, 375 to 409, 440 to 498, 500 to 510, 619
Page 149
65 of 145 DOCUMENTS

Parent and Child

§ 64 Reimbursing parent for past expenditures
The courts have the power to make an allowance for past expenditures for support and maintenance of a child, and will
grant such allowance where the parent can show reasons which in equity entitle him thereto. n1 Ordinarily, however, this
may be done only upon grounds which would have justified the granting of an allowance for such support upon an ap-
plication therefor made in advance. n2 A mother's children, after her death, can demand that her expenditures for a de-
pendent son be charged as an advancement against his share of her estate. n3 However, the right to recoupment or reim-
bursement for expenditures for the support of a child may arise or be revived where some special disposition by the par-
ent of the income from a trust fund established for the support of the child has been declared invalid. n4
FOOTNOTES:
n1 Cleveland Clinic Foundation v. Humphrys, 97 F.2d 849, 121 A.L.R. 163 (C.C.A. 6th Cir. 1938).
n2 Alcorn v. Alcorn, 183 Ark. 342, 35 S.W.2d 1027 (1931).
n3 Crain v. Mallone, 130 Ky. 125, 113 S.W. 67 (1908).
358, 375 to 409, 440 to 498, 500 to 510, 619
Page 150
66 of 145 DOCUMENTS

Parent and Child

§ 65 Trust fund for support and maintenance of child
The provisions of a trust, will, or agreement creating a child's estate may relieve a parent of the duty of supporting the
child from the parent's own means, where income for the support of the child is thereby made available. Where a trust
fund has been expressly established for the support, maintenance, or education of a certain child or children the fund is
to applied for that purpose without regard to whether the same support could have been furnished by the parents. n1 A
parent who has discharged, otherwise than as a mere volunteer, an obligation placed upon a trust fund to support his
child may be entitled to an equitable lien on the income from the fund with which to recoup for his expenditures made
for that purpose. n2 A parent who was authorized, however, to use the income from the children's estate for their support,
and has so used it, will not be permitted to return an equivalent to the trust fund to the detriment of his creditors. n3
FOOTNOTES:
n1 Cleveland Clinic Foundation v. Humphrys, 97 F.2d 849, 121 A.L.R. 163 (C.C.A. 6th Cir. 1938); Ingalls v. Ingalls, 256 Ala. 321, 54 So.
2d 296 (1951); Grollman v. Grollman, 220 A.2d 330 (D.C. 1966); In re Carlson's Trust, 82 S.D. 631, 152 N.W.2d 434 (1967); National Val.
Bank v. Hancock, 100 Va. 101, 40 S.E. 611 (1902).
n3 National Val. Bank v. Hancock, 100 Va. 101, 40 S.E. 611 (1902).
358, 375 to 409, 440 to 498, 500 to 510, 619
Page 151
67 of 145 DOCUMENTS

Parent and Child

6. Liability of Parents for Necessities of Child
§ 66 Generally
A parent who has the legal duty to support his child and fails to perform it may be held liable to others who have per-
formed it for him by furnishing the child with necessaries. n1 Liability of a parent with a support obligation for neces-
saries furnished his child is imposed by statute in some states. n2 Under the rule of parental liability for necessaries fur-
nished, a delinquent father may be compelled to pay for necessaries furnished to his children by their mother, whether
furnished while the parents were married to each other or after a divorce; n3 by another member of the family or a rela-
tive; n4 or by a stranger. n5 Parents are sometimes held liable for necessaries furnished their minor child in an emergency,
though there was no contract, express or implied. n6
Whatever view is taken with respect to the basis or grounds of the parent's liability to third persons for necessaries fur-
nished the child, it seems clear that such liability exists only where the parent has refused or failed to supply the neces-
saries himself, and that no recovery can be had where he has been ready and willing at all times to fulfill his obligation
of supporting the child. As long as the child is under the direction and control of the parent, it is in the parent's discre-
tion to determine what is necessary for it, and unless there is manifest dereliction on his part an outsider cannot substi-
tute his judgment for the parent's. n7
FOOTNOTES:
n1 State, Dept. of Revenue, Child Support Enforcement Div. v. Green, 983 P.2d 1249 (Alaska 1999); Strange v. Strange, 222 Ga. 44, 148
S.E.2d 494 (1966); Huffman v. Hatcher, 178 Ky. 8, 198 S.W. 236 (1917); Barry v. Sparks, 306 Mass. 80, 27 N.E.2d 728, 128 A.L.R. 983
(1940); Beigler v. Chamberlin, 138 Minn. 377, 165 N.W. 128 (1917); Greene v. Greene, 145 Miss. 87, 110 So. 218, 49 A.L.R. 565 (1926);
State ex rel. Div. of Family Services v. Standridge, 676 S.W.2d 513 (Mo. 1984); Fanelli v. Barclay, 100 Misc. 2d 471, 419 N.Y.S.2d 813
(Dist. Ct. 1979); In re Guardianship of Hight, 1944 OK 143, 194 Okla. 214, 148 P.2d 475 (1944); Foster v. Adcock, 161 Tenn. 217, 30
S.W.2d 239, 70 A.L.R. 569 (1930); Carreon v. Texas State Dept. of Public Welfare, 537 S.W.2d 345 (Tex. Civ. App. San Antonio 1976);
State, Dept. of Human Services ex rel. Parker v. Irizarry, 945 P.2d 676 (Utah 1997); Madison General Hosp. v. Haack, 124 Wis. 2d 398, 369
N.W.2d 663, 53 A.L.R.4th 1235 (1985).
As to what are necessaries, see § 49.
As to the liability of the child for necessaries, see 42 Am. Jur. 2d, Infants §§ 68 et seq.
n2 Commonwealth v. Kirk, 212 Ky. 646, 279 S.W. 1091, 44 A.L.R. 816 (1926); In re Guardianship of Hight, 1944 OK 143, 194 Okla. 214,
148 P.2d 475 (1944).
As to the consideration of necessities under the Uniform Marriage and Divorce Act, see 24A Am. Jur. 2d, Divorce and Separation § 1030.
n3 Yarborough v. Yarborough, 290 U.S. 202, 54 S. Ct. 181, 78 L. Ed. 269, 90 A.L.R. 924 (1933); Brown v. Brown, 132 Ga. 712, 64 S.E.
1092 (1909); Rogers v. Rogers, 93 Kan. 114, 143 P. 410 (1914); Riggs v. Riggs, 91 Kan. 593, 138 P. 628 (1914); State ex rel. Div. of Family
Services v. Standridge, 676 S.W.2d 513 (Mo. 1984); De Brauwere v. De Brauwere, 203 N.Y. 460, 96 N.E. 722 (1911); Morrison v. State, 85
Tex. Crim. 20, 209 S.W. 742, 6 A.L.R. 1607 (1919).
Page 152
n4 Barrett v. Barrett, 44 Ariz. 509, 39 P.2d 621 (1934).
n5 Worthington v. Worthington, 212 Mo. App. 216, 253 S.W. 443 (1923); Fanelli v. Barclay, 100 Misc. 2d 471, 419 N.Y.S.2d 813 (Dist.
Ct. 1979); Alamance County Hosp., Inc. v. Neighbors, 315 N.C. 362, 338 S.E.2d 87 (1986); Roxana Petroleum Co. v. Cope, 1928 OK 442,
132 Okla. 152, 269 P. 1084, 60 A.L.R. 837 (1928); Carreon v. Texas State Dept. of Public Welfare, 537 S.W.2d 345 (Tex. Civ. App. San
Antonio 1976).
n6 Greenspan v. Slate, 12 N.J. 426, 97 A.2d 390 (1953) adopting equity view recognizing liability, rather than common-law rule to the con-
trary.
A person who has performed the duty of another by supplying a third person with necessaries, although acting without the other's knowledge
or consent, is entitled to restitution from the other therefor if (a) he acted inofficiously and with intent to charge therefor, and (b) the things
or services supplied were immediately necessary to prevent serious bodily harm to or suffering by such person. Restatement First, Restitu-
tion § 114.
n7 Maschauer v. Downs, 289 F. 540, 32 A.L.R. 1461 (App. D.C. 1923); Smith v. Gilbert, 80 Ark. 525, 98 S.W. 115 (1906); Stimpson v.
Hunter, 234 Mass. 61, 125 N.E. 155, 7 A.L.R. 1067 (1919); Lufkin v. Harvey, 131 Minn. 238, 154 N.W. 1097 (1915); Rapoport v. Hussey,
267 S.W. 68 (Mo. Ct. App. 1924); Griston v. Stousland, 186 Misc. 201, 60 N.Y.S.2d 118 (App. Term 1946); Peacock v. Linton, 22 R.I. 328,
47 A. 887 (1901).
358, 375 to 409, 440 to 498, 500 to 510, 619
A.L.R. 2d 203 § 6.
Page 153
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Parent and Child

§ 67 Child living apart from parent
It is generally conceded that a parent is not liable for the ordinary expenses of a child who lives away from home and is
self-supporting. n1 In some of the cases, however, particularly those involving liability for medical services, the question
is made to turn on the effect of the child's absence as an emancipation. n2 Statutes in some jurisdictions expressly provide
that a parent shall not be liable for the support of a child who has left home without just cause. n3 On the other hand, if
the conduct of the parent is such as to drive the child away from home, n4 or if he abandons the child, n5 he is liable for
necessaries.
FOOTNOTES:
n1 Creeley v. Creeley, 258 Mass. 460, 155 N.E. 424, 52 A.L.R. 285 (1927).
n2 Brosius v. Barker, 154 Mo. App. 657, 136 S.W. 18 (1911); Holland v. Hartley, 171 N.C. 376, 88 S.E. 507 (1916).
As to the effect of a child's emancipation on a child support decree, see 24A Am. Jur. 2d, Divorce and Separation §§ 1041 et seq.
n3 County of Fresno v. Walker, 115 Cal. App. 3d 814, 171 Cal. Rptr. 572 (5th Dist. 1981); Dyer v. State, 58 Okla. Crim. 317, 52 P.2d 1080
(1935).
As to the conduct of a child to a parent as evidence of emancipation, see 24A Am. Jur. 2d, Divorce and Separation § 1043.
n4 P.J. Hunycutt & Co. v. Thompson, 159 N.C. 29, 74 S.E. 628 (1912).
n5 Huffman v. Hatcher, 178 Ky. 8, 198 S.W. 236 (1917); Beigler v. Chamberlin, 138 Minn. 377, 165 N.W. 128 (1917); Laumeier v.
Laumeier, 237 N.Y. 357, 143 N.E. 219, 32 A.L.R. 654 (1924); Fowlkes v. Baker, 29 Tex. 135, 1867 WL 4496 (1867); Butler v. Com., 132
Va. 609, 110 S.E. 868, 23 A.L.R. 861 (1922).
358, 375 to 409, 440 to 498, 500 to 510, 619
Page 154
A.L.R. 2d 203 §§ 6, 8.
Page 155
69 of 145 DOCUMENTS

Parent and Child

§ 68 Medical and dental services
Medical and dental care is included among the necessaries for which a third person can recover from the parent. n1 As in
the case of other necessaries, one seeking to recover against a parent for medical or dental services must, in the absence
of an express agreement, show that the parent negligently failed to provide such services for the child. n2 The parent's lia-
bility may also be predicated upon ratification by him of the child's act in requesting the work to be done. n3 Statutes
sometimes make the parents liable for the care of their minor child in a state charitable or curative institution. n4
Apart from any legal duty to furnish his child with medical services, a parent may be held liable therefor on ordinary
grounds of contract law, either where there is an express contract or where the circumstances are such that a contract
may be implied in fact. n5
The extent to which the child has been emancipated seems to be the determinative factor in ascertaining the liability of a
parent for medical expenses incurred by a child who has voluntarily left his home. n6 A provision of a divorce decree that
a party will pay all reasonable medical and dental bills of the children when due, includes liability to reimburse the other
parent for payments made for such items. If the obligor parent complies with an obligation under a separation agreement
incorporated into the divorce decree to maintain health insurance, but the obligee parent fails to take advantage of such
coverage, the latter parent is estopped from pursuing a claim for reimbursement of expenses. n7
FOOTNOTES:
n1 Greenspan v. Slate, 12 N.J. 426, 97 A.2d 390 (1953); Osborn v. Weatherford, 27 Ala. App. 258, 170 So. 95 (1936); State v. Moran, 99
Conn. 115, 121 A. 277, 36 A.L.R. 862 (1923); Stimpson v. Hunter, 234 Mass. 61, 125 N.E. 155, 7 A.L.R. 1067 (1919); ; Lufkin v. Harvey,
131 Minn. 238, 154 N.W. 1097 (1915); Sheppard and Enoch Pratt Hosp., Inc. v. Sakwa, 725 So. 2d 760 (Miss. 1998); Laumeier v.
Laumeier, 237 N.Y. 357, 143 N.E. 219, 32 A.L.R. 654 (1924); Alamance County Hosp., Inc. v. Neighbors, 315 N.C. 362, 338 S.E.2d 87
(1986); Children's Hospital of Akron v. Johnson, 68 Ohio App. 2d 17, 22 Ohio Op. 3d 11, 426 N.E.2d 515 (9th Dist. Summit County 1980);
Foster v. Adcock, 161 Tenn. 217, 30 S.W.2d 239, 70 A.L.R. 569 (1930); Esteb v. Esteb, 138 Wash. 174, 244 P. 264, 47 A.L.R. 110 (1926),
opinion supplemented on reh'g, 138 Wash. 174, 246 P. 27 (1926).
n2 Greenspan v. Slate, 12 N.J. 426, 97 A.2d 390 (1953); Stimpson v. Hunter, 234 Mass. 61, 125 N.E. 155, 7 A.L.R. 1067 (1919); Alamance
County Hosp., Inc. v. Neighbors, 315 N.C. 362, 338 S.E.2d 87 (1986).
n3 Foster v. Adcock, 161 Tenn. 217, 30 S.W.2d 239, 70 A.L.R. 569 (1930).
n4 In re Treglown, 38 Wis. 2d 317, 156 N.W.2d 363 (1968).
n5 Lufkin v. Harvey, 131 Minn. 238, 154 N.W. 1097 (1915).

Page 156
n6 Wallace v. Cox, 136 Tenn. 69, 188 S.W. 611 (1916) (liable); Buxton v. Bishop, 185 Va. 1, 37 S.E.2d 755, 165 A.L.R. 719 (1946) (not li-
able).
As to emancipation of a child, generally, see §§ 79 et seq.
358, 375 to 409, 440 to 498, 500 to 510, 619
Homicide: Failure to provide medical or surgical attention, 100 A.L.R. 2d 483 § 6.
Page 157
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Parent and Child

7. Liability of Parents for Particular Types of Expenses
§ 69 Education
It is the natural and legal duty of a parent to give his children education. n1 Many states now enforce this obligation by
compulsory laws. n2 If the parents fail to perform their duty to educate the child, the state may assert its power as parens
patriae and apply curative measures. n3
Education is frequently an allowable element in a child-support decree. n4
FOOTNOTES:
n1 Meyer v. Nebraska, 262 U.S. 390, 43 S. Ct. 625, 67 L. Ed. 1042, 29 A.L.R. 1446 (1923); Bryant v. Brown, 151 Miss. 398, 118 So. 184,
60 A.L.R. 1325 (1928); School Bd. Dist. No. 18, Garvin County v. Thompson, 1909 OK 136, 24 Okla. 1, 103 P. 578 (1909); Crawford v.
District School Board for School Dist. No. 7, in Klamath County, 68 Or. 388, 137 P. 217 (1913); Melzer v. Witsberger, 505 Pa. 462, 480
A.2d 991 (1984); Gully v. Gully, 111 Tex. 233, 231 S.W. 97, 15 A.L.R. 564 (1921); State v. Spiegel, 39 Wyo. 309, 270 P. 1064, 64 A.L.R.
289 (1928).
n2 Meyer v. Nebraska, 262 U.S. 390, 43 S. Ct. 625, 67 L. Ed. 1042, 29 A.L.R. 1446 (1923); Stark v. Hamilton, 149 Ga. 227, 99 S.E. 861, 5
A.L.R. 1041 (1919); State v. Bailey, 157 Ind. 324, 61 N.E. 730 (1901); Holman v. School Trustees of Avon, 77 Mich. 605, 43 N.W. 996
(1889); Geary v. Geary, 102 Neb. 511, 167 N.W. 778, 20 A.L.R. 809 (1918), error dismissed, 251 U.S. 535, 40 S. Ct. 55, 64 L. Ed. 401
(1919); Owens v. State, 6 Okla. Crim. 110, 116 P. 345 (1911); Crawford v. District School Board for School Dist. No. 7, in Klamath County,
68 Or. 388, 137 P. 217 (1913).
n3 Bryant v. Brown, 151 Miss. 398, 118 So. 184, 60 A.L.R. 1325 (1928).
n4 Rawley v. Rawley, 94 Cal. App. 2d 562, 210 P.2d 891 (2d Dist. 1949); Hart v. Hart, 239 Iowa 142, 30 N.W.2d 748 (1948); Clark v.
Graves, 282 S.W.2d 146 (Ky. 1955); Williams v. Barnette, 226 La. 635, 76 So. 2d 912 (1954); Johnson v. Johnson, 346 Mich. 418, 78
N.W.2d 216 (1956); Savell v. Savell, 213 Miss. 869, 58 So. 2d 41 (1952); Jenkins v. Jenkins, 257 S.W.2d 250 (Mo. Ct. App. 1953); Bize v.
Bize, 154 Neb. 520, 48 N.W.2d 649 (1951); Lewis v. Lewis, 71 Nev. 301, 289 P.2d 414 (1955); Lund v. Lund, 96 N.H. 283, 74 A.2d 557
(1950); Herbert v. Herbert, 198 Misc. 515, 98 N.Y.S.2d 846 (Dom. Rel. Ct. 1950); Com. ex rel. Stomel v. Stomel, 180 Pa. Super. 573, 119
A.2d 597 (1956); Gartner v. Gartner, 79 R.I. 399, 89 A.2d 368 (1952); Atchley v. Atchley, 29 Tenn. App. 124, 194 S.W.2d 252 (1945);
Rosenthal v. Rosenthal, 19 N.J. Super. 521, 88 A.2d 655 (Ch. Div. 1952), order modified on other grounds, 26 N.J. Super. 400, 98 A.2d 338
(App. Div. 1953).
As to awards for education of child in divorce or separation decree, see 24 Am. Jur. 2d, Divorce and Separation §§ 1033 et seq.
358, 375 to 409, 440 to 498, 500 to 510, 619
Page 158

Page 159
71 of 145 DOCUMENTS

Parent and Child

§ 70 Amount and kind; higher education
As to the amount and kind of education that should be considered necessary, the courts have never laid down a hard-
and-fast rule. n1 It has long been conceded that a parent is under a duty to furnish his child with at least an elementary
school education, n2 and there is authority that a parent has the obligation to educate his children at least through high
school. n3
Generally, a college education is not required to be provided for an adult child as a matter of legal duty, but a divorce or
separation agreement providing for post-majority support in college is enforceable by a court. n4 A parent who is not di-
vorced may be required to pay the college or postsecondary educational expenses of his or her child where:
.The child shows an aptitude for a college education n5
.The parent has a college degree and there was at least an implicit understanding that the child would be sent to col-
lege n6
.The parent is financially able to pay for the child's college expenses n7
Those same factors may also lead to the opposite conclusion by a court -- that a nondivorced parent is not responsible
for paying a child's college expenses. n8
In some cases, the parent may be responsible for the expense of sending the child to private or boarding school. n9 Where
the terms of a divorce decree require the obligor parent to pay reasonable religious or private school expenses for a
child, that obligation is enforceable even if the cost of tuition increases, so long as the private school is appropriate. n10
FOOTNOTES:
n1 Esteb v. Esteb, 138 Wash. 174, 244 P. 264, 47 A.L.R. 110 (1926), opinion supplemented on reh'g, 138 Wash. 174, 246 P. 27 (1926).
n2 State v. Waller, 90 Kan. 829, 136 P. 215 (1913); Sisson v. Schultz, 251 Mich. 553, 232 N.W. 253 (1930); Greene v. Greene, 145 Miss.
87, 110 So. 218, 49 A.L.R. 565 (1926); Jackman v. Short, 165 Or. 626, 109 P.2d 860, 133 A.L.R. 887 (1941); Peacock v. Linton, 22 R.I.
328, 47 A. 887 (1901); Esteb v. Esteb, 138 Wash. 174, 244 P. 264, 47 A.L.R. 110 (1926), opinion supplemented on reh'g, 138 Wash. 174,
246 P. 27 (1926).
n3 O'Brien v. Springer, 202 Misc. 210, 107 N.Y.S.2d 631 (Sup 1951).
A parent's child support obligations pursuant to a child support order continue beyond the age of majority so long as the child continues to
attend a recognized and accredited high school on a full-time basis, even if contradicted by the express terms of a child support agreement.
Hoelscher v. Hoelscher, 91 Ohio St. 3d 500, 747 N.E.2d 227 (2001).
As to statutory authority requiring support of a child through high school, see 24A Am. Jur. 2d, Divorce and Separation § 1034.
Page 160
n5 Newburgh v. Arrigo, 88 N.J. 529, 443 A.2d 1031, 42 A.L.R.4th 795 (1982); Gerk v. Gerk, 259 Iowa 293, 144 N.W.2d 104 (1966); Mau-
rer v. Maurer, 382 Pa. Super. 468, 555 A.2d 1294 (1989).
n6 Com. ex rel. Decker v. Decker, 51 Del. Co. 461 (Pa. Quar. Sess. 1964), vacated in part, modified in part, 204 Pa. Super. 156, 203 A.2d
343 (1964).
n7 Newburgh v. Arrigo, 88 N.J. 529, 443 A.2d 1031, 42 A.L.R.4th 795 (1982); Com. ex rel. Hanerkam v. Hanerkam, 221 Pa. Super. 182,
289 A.2d 742 (1972).
n8 B.A. v. State Dept. of Human Resources ex rel. R.A., 640 So. 2d 961 (Ala. Civ. App. 1994); Gallagher v. Holcomb, 1935 OK 456, 172
Okla. 1, 44 P.2d 44 (1935); Chesonis v. Chesonis, 372 Pa. Super. 113, 538 A.2d 1376, 45 Ed. Law Rep. 1127 (1988).
n9 Cappel v. Cappel, 243 Iowa 1363, 55 N.W.2d 481 (1952); Williams v. Barnette, 226 La. 635, 76 So. 2d 912 (1954); Horsley v. Radisi,
132 Md. App. 1, 750 A.2d 692 (2000); Cory v. Cory, 333 Mich. 532, 53 N.W.2d 365 (1952); Savell v. Savell, 213 Miss. 869, 58 So. 2d 41
(1952); Bize v. Bize, 154 Neb. 520, 48 N.W.2d 649 (1951); Com. v. Yoh, 71 Montg. 20 (Pa. Quar. Sess. 1955); Rosenthal v. Rosenthal, 19
N.J. Super. 521, 88 A.2d 655 (Ch. Div. 1952), order modified, 26 N.J. Super. 400, 98 A.2d 338 (App. Div. 1953).
SUPPLEMENT:
Cases
A high school that has been recognized by another state and accredited by non-Ohio entities need not also have been ap-
proved by the state of Ohio in order to be a "recognized and accredited" high school as contemplated by child support
statute providing that parental duty of support shall continue beyond age of majority as long as child continuously at-
tends "any" recognized and accredited high school; in choosing adjective of "any," the legislature manifested its intent
that the phrase "recognized and accredited high school" was to be construed expansively. Davis v. Davis, 115 Ohio St.
3d 180, 2007-Ohio-5049, 873 N.E.2d 1305 (2007).
Out-of-state home schooling program in which adult child enrolled was a "recognized and accredited" high school, as
contemplated by statute providing that parental duty of support shall continue beyond age of majority as long as child
continuously attends "any" recognized and accredited high school, and thus, former husband, as the child support
obligor, was required to continue to pay child support despite child's age of majority and enrollment in school that was
recognized by another state and accredited by non-Ohio entities. Davis v. Davis, 115 Ohio St. 3d 180, 2007-Ohio-5049,
873 N.E.2d 1305 (2007).
358, 375 to 409, 440 to 498, 500 to 510, 619
Postsecondary education as within nondivorced parent's child-support obligation, 42 A.L.R. 4th 819.
Contract provision -- Agreement of parents on payment of post-secondary education expenses. 13B Am. Jur. Legal
Forms 2d, Parent and Child § 191:113.
Page 161
72 of 145 DOCUMENTS

Parent and Child

§ 71 Medical and dental care
Parents are by the common law, and generally by the statutory law, under the legal duty of providing medical attention
for their children. n1 It is ordinarily for the parent in the first instance to decide, however, what is actually necessary for
the protection and preservation of the life and health of his child, so long as he acts as a reasonable and ordinarily pru-
dent parent would act in a like situation. n2 In the absence of exceptional circumstances, such as an emergency, n3 a par-
ent's consent should be secured before surgery, dental work, extraction of blood, or other measures involving possible
danger to the life or health of the child or a possible loss of the child's services to the parent are undertaken. Otherwise,
as against the parent, the law may afford no protection to those furnishing such treatment in the absence of a subsequent
ratification by the parent, n4 except, perhaps, in cases where it may reasonably be inferred that the parent would have
consented, if asked, and where the child has reached an age of discretion and has consented thereto, having had the ben-
efit of adult advice, as from relatives. n5
In such matters as deciding on the need for surgical or hospital treatment, the wishes of young children are not con-
sulted, nor their consent asked when they are old enough to give expression thereto. The will of the parents is control-
ling, n6 except in those extreme instances where the state takes over to rescue the child from parental neglect or to save
its life. n7 Similarly, the right to grant or refuse a medical examination of a child belongs not to the child, but to the par-
ents. n8
A divorce decree may order that, in addition to the payment of specified sums for support, the responsible parent must
pay future expenses of a certain kind, such as paying for medical, dental, and ocular insurance, or unusual medical and
dental expenses. n9
FOOTNOTES:
n1 Knowles v. U.S., 29 F.3d 1261 (8th Cir. 1994), certified question answered, 1996 SD 10, 544 N.W.2d 183 (S.D. 1996) (applying South
Dakota law); Singleton v. State, 33 Ala. App. 536, 35 So. 2d 375 (1948); Eaglen v. State, 249 Ind. 144, 231 N.E.2d 147 (1967); Johns Hop-
kins Hosp. v. Pepper, 346 Md. 679, 697 A.2d 1358 (1997); State v. Staples, 126 Minn. 396, 148 N.W. 283 (1914); State v. Beach, 329
S.W.2d 712 (Mo. 1959); Stehr v. State, 92 Neb. 755, 139 N.W. 676 (1913), aff'd, 94 Neb. 151, 142 N.W. 670 (1913); State v. Watson, 77
N.J.L. 299, 71 A. 1113 (N.J. Sup. Ct. 1909); Children's Hospital of Akron v. Johnson, 68 Ohio App. 2d 17, 22 Ohio Op. 3d 11, 426 N.E.2d
515 (9th Dist. Summit County 1980); Melzer v. Witsberger, 505 Pa. 462, 480 A.2d 991 (1984); State v. Barnes, 141 Tenn. 469, 212 S.W.
100 (1919).
As to a parent's liability to pay for medical care furnished by others, see § 68.
As to liability for medical services rendered to an adult child, see § 77.
As to the criminal liability of a parent for a homicide where the death of a child results from a failure to provide medical care, see 40 Am.
Jur. 2d, Homicide § 83.
Page 162
n2 Lange v. Hoyt, 114 Conn. 590, 159 A. 575, 82 A.L.R. 486 (1932); Stimpson v. Hunter, 234 Mass. 61, 125 N.E. 155, 7 A.L.R. 1067
(1919); People v. Pierson, 176 N.Y. 201, 68 N.E. 243 (1903); Owens v. State, 6 Okla. Crim. 110, 116 P. 345 (1911); Zaman v. Schultz, 19
Pa. D. & C. 309, 1933 WL 3662 (C.P. 1933); Weston's Adm'x v. Hospital of St. Vincent of Paul, 131 Va. 587, 107 S.E. 785, 23 A.L.R. 907
(1921).
As to power of state to take custody to provide medical treatment over the objections of parents, see § 19 (Medical procedures performed
over parents' objections).
As to the compulsory vaccination of children, see 39 Am. Jur. 2d, Health § 65; 68 Am. Jur. 2d, Schools § 315.
n3 Osborn v. Weatherford, 27 Ala. App. 258, 170 So. 95 (1936); Luka v. Lowrie, 171 Mich. 122, 136 N.W. 1106 (1912).
n4 Stimpson v. Hunter, 234 Mass. 61, 125 N.E. 155, 7 A.L.R. 1067 (1919).
n5 Osborn v. Weatherford, 27 Ala. App. 258, 170 So. 95 (1936); Bakker v. Welsh, 144 Mich. 632, 108 N.W. 94 (1906).
n6 Weston's Adm'x v. Hospital of St. Vincent of Paul, 131 Va. 587, 107 S.E. 785, 23 A.L.R. 907 (1921).
n7 § 19 (Medical procedures performed over parents' objections).
n8 Friedrichsen v. Niemotka, 71 N.J. Super. 398, 177 A.2d 58 (Law Div. 1962).
358, 375 to 409, 440 to 498, 500 to 510, 619
Propriety of surgically invading incompetent or minor for benefit of third party, 4 A.L.R. 5th 1000.
Homicide: Failure to provide medical or surgical attention, 100 A.L.R. 2d 483 § 6.
Page 163
73 of 145 DOCUMENTS

Parent and Child

§ 72 Funeral expenses
Funeral expenses incident to the burial of a minor child constitute a necessity for which the parents, primarily the father
in the absence of statute, are liable, n1 except where they are unable to pay, in which case such expenses may be met out
of the property of the child. n2 Such expenses have also been held a necessary under a statute authorizing a third person,
under specified circumstances, to recover from the parent for necessaries furnished to the child. n3 Such expenses should
be apportioned equitably between the parents, where a statute charges the parents equally and jointly with the care, nur-
ture, welfare, and support of their minor children. n4 An express agreement by a mother to pay for expenses incident to
the sickness and death of her child does not relieve the father of his obligation to contribute to such expenses under such
a statute. n5
FOOTNOTES:
n1 Hoyt v. U. S., 286 F.2d 356 (5th Cir. 1961); Colovo's Adm'r v. Gouvas, 269 Ky. 752, 108 S.W.2d 820, 113 A.L.R. 871 (1937); Barry Fu-
neral Home v. Norris, 216 Miss. 457, 62 So. 2d 768 (1953); White v. Holding, 217 N.C. 329, 7 S.E.2d 825 (1940); Rose Funeral Home v.
Julian, 176 Tenn. 534, 144 S.W.2d 755, 131 A.L.R. 858 (1940); Munsert v. Farmers Mut. Auto. Ins. Co., 229 Wis. 581, 281 N.W. 671, 119
A.L.R. 1390 (1938).
As to funeral expenses for an adult child, see § 77.
As to a parent's right of burial of a child, see 22A Am. Jur. 2d, Dead Bodies § 28.
n2 Barry Funeral Home v. Norris, 216 Miss. 457, 62 So. 2d 768 (1953).
n3 Phillips v. Home Undertakers, 1943 OK 231, 192 Okla. 597, 138 P.2d 550 (1943).
n4 Rose Funeral Home v. Julian, 176 Tenn. 534, 144 S.W.2d 755, 131 A.L.R. 858 (1940).
n5 Rose Funeral Home v. Julian, 176 Tenn. 534, 144 S.W.2d 755, 131 A.L.R. 858 (1940).
SUPPLEMENT:
Cases
Father was required to pay half of child's funeral and burial expenses; both parents had a duty to support child, which
included medical and funeral expenses. Jewell v. Jewell, 255 S.W.3d 522 (Ky. Ct. App. 2008).
Page 164
358, 375 to 409, 440 to 498, 500 to 510, 619
West's Key Number Digest, Parent and Child [westkey]3.5
Page 165
74 of 145 DOCUMENTS

Parent and Child

8. Enforcement
§ 73 Enforcement of parental obligation
The generally recognized method to enforce the duty of parents to support their children has been that a third person,
whether the other parent, a relative, or a stranger, can furnish the child with necessaries which the parent failed to pro-
vide and recover therefor from the parent on whom the support duty falls. n1
A father's obligation to support his minor child may form the basis of a quasi contract, implied by law, to compel the fa-
ther to pay for the support and maintenance of the child by a third party, or by the mother after a divorce from the fa-
ther. n2 Where the claim is for past support, the mother's normal remedy is to bring a common-law action against the fa-
ther. n3 In some jurisdictions, a petition in the divorce action for future support may also add a count based on the father's
liability for past expenditures. n4 At least in some jurisdictions, a mother who has custody of children toward whom the
father still owes the duty of support may sue to obtain a court order requiring the payment of proper sums for future
maintenance. n5 However, where the parents are divorced, some courts take the view that there is no nonstatutory remedy
by which she can compel the father to contribute to future support, so her only recourse is to support the child and bring
an action to obtain reimbursement for the sum she has expended. n6 In other jurisdictions, however, she can resort to the
court which granted the divorce. n7 A court that enters a divorce decree containing an order directing a parent to make
periodic support payments for a child has continuing jurisdiction to enter a judgment for arrears. n8 Also, some courts
take the view that the father's child-support duty cannot be enforced in an independent action when the divorce court
could modify its decree to award the relief sought. n9 However, where the decree makes no provision for support, an in-
dependent bill in equity is proper. n10 Also, this may be the only practical remedy where the decree lacks any provision
for support and was rendered in a foreign jurisdiction in which the parties no longer reside. n11 A child support obligation
arising from a court order, whether family court or another civil court, is a debt that may be enforced through civil
remedies. n12
A court may order the person obligated to pay support or maintenance to make an assignment of a part of his or her pe-
riodic earnings or trust income to the person entitled to receive the payments. n13
Performance of the parental duty of support owed by an insane or incompetent parent having an estate may generally be
enforced through an application in the proper court for an allowance from such estate for the support of the children. n14
The Uniform Interstate Family Support Act provides for proceedings to enforce a support order of another state n15 and
to register an order for child support of another state for enforcement. n16 The Act also sets forth provisions for the en-
forcement of a child support order of another state without registration. n17
FOOTNOTES:
n1 §§ 66 et seq.
Page 166
n2 Isaacs v. Deutsch, 80 So. 2d 657, 52 A.L.R.2d 1118 (Fla. 1955).
As to the enforcement of a child support obligation or decree, see 24A Am. Jur. 2d, Divorce and Separation §§ 1051 to 1078.
n3 Swenson v. Swenson, 241 Mo. App. 21, 227 S.W.2d 103, 20 A.L.R.2d 1409 (1950).
n4 McCall v. McCall, 205 Ark. 1123, 172 S.W.2d 677 (1943); Effland v. Effland, 171 Kan. 657, 237 P.2d 380 (1951).
As to the enforcement of a child support order arising out of a divorce or separation agreement, generally, see 24A Am. Jur. 2d, Divorce and
Separation §§ 1051 et seq.
n5 Riggs v. Riggs, 91 Kan. 593, 138 P. 628 (1914).
n6 Strange v. Strange, 222 Ga. 44, 148 S.E.2d 494 (1966).
n7 Swenson v. Swenson, 241 Mo. App. 21, 227 S.W.2d 103, 20 A.L.R.2d 1409 (1950).
n9 Kresteller v. Superior Court, City and County of San Francisco, 248 Cal. App. 2d 545, 56 Cal. Rptr. 771 (1st Dist. 1967).
n10 Cohen v. Markel, 35 Del. Ch. 115, 111 A.2d 702 (1955).
n11 Davies v. Fisher, 34 Cal. App. 137, 166 P. 833 (2d Dist. 1917); Geary v. Geary, 102 Neb. 511, 167 N.W. 778, 20 A.L.R. 809 (1918), er-
ror dismissed, 251 U.S. 535, 40 S. Ct. 55, 64 L. Ed. 401 (1919).
As to the use of the Federal Parent Locator Service to enforce child support agreements, see 24A Am. Jur. 2d, Divorce and Separation §
1052.
n12 U.S. v. Lewko, 269 F.3d 64 (1st Cir. 2001) (applying New Hampshire law).
n14 In re Marshall, 15 A.D.2d 310, 223 N.Y.S.2d 207 (1st Dep't 1962); U.S. Fidelity & Guaranty Co. v. Chambers, 204 Ark. 81, 160
S.W.2d 888 (1942); In re Hudelson's Estate, 18 Cal. 2d 401, 115 P.2d 805 (1941); Sheneman v. Manring, 152 Kan. 780, 107 P.2d 741
(1940); Marks v. Marks, 58 Ohio App. 266, 12 Ohio Op. 158, 16 N.E.2d 509 (7th Dist. Columbiana County 1937); In re Prichard, 359 Pa.
315, 59 A.2d 101 (1948); Pishue v. Pishue, 32 Wash. 2d 750, 203 P.2d 1070 (1949); Marsh v. Scott, 2 N.J. Super. 240, 63 A.2d 275 (Ch.
Div. 1949).
As to principles governing allowances from the estate of an insane or incompetent parent, see 39 Am. Jur. 2d, Guardian and Ward § 118.
n15 U.I.F.S.A. § 301(b)(2).
n16 U.I.F.S.A. §§ 301(b)(3), 601 et seq.
n17 U.I.F.S.A. § 501.
358, 375 to 409, 440 to 498, 500 to 510, 619
Page 167
West's Key Number Digest, Child Support [westkey]440 to 498, 508, 619
Construction and Application of Uniform Interstate Family Support Act, 90 A.L.R. 5th 1.
Power of court or guardian to make noncharitable gifts or allowances out of funds of incompetent ward, 24 A.L.R. 3d
863 § 5[a].
A.L.R. 2d 203 § 18.
Page 168
75 of 145 DOCUMENTS

Parent and Child

8. Enforcement
§ 74 Action by child against parent
The right of a child to maintain an action or suit against his parent for support, in his own name or by next friend or
guardian ad litem, independently of statute, is recognized in some jurisdictions, n1 though in others it is denied. n2 A child
is not entitled to a separate action where the custodial parent is suing for separate maintenance, since the fact that the
custodial parent can include a prayer for child support provides an adequate remedy, but where the parents are engaged
in a dispute in which the child's interests are not properly represented, the child's separate action for support will lie. n3
Whether such an action can be brought is governed by the law of the child's domicile, rather than that of the parent. n4
Where the duty of support continues or arises after the child attains his majority, the obligation may be enforced by an
independent action. n5 Thus, an incompetent adult child can bring an action by next friend to compel support from his fa-
ther. n6
FOOTNOTES:
n1 Simonds v. Simonds, 154 F.2d 326, 13 A.L.R.2d 1138 (App. D.C. 1946); Simms v. Simms, 49 Haw. 200, 412 P.2d 638 (1966); Gerk v.
Gerk, 259 Iowa 293, 144 N.W.2d 104 (1966); Wheeler v. Wheeler, 196 Kan. 697, 414 P.2d 1 (1966); Campbell v. Campbell, 200 S.C. 67, 20
S.E.2d 237 (1942).
As to the appointment of an attorney to represent a minor child's interests in enforcing a support order, see 24A Am. Jur. 2d, Divorce and
Separation § 1059.
As to the right of an illegitimate child to maintain a support action against its putative father, see 41 Am. Jur. 2d, Illegitimate Children § 39.
n2 Yarborough v. Yarborough, 290 U.S. 202, 54 S. Ct. 181, 78 L. Ed. 269, 90 A.L.R. 924 (1933) (applying Georgia law); Rawlings v.
Rawlings, 121 Miss. 140, 83 So. 146, 7 A.L.R. 1259 (1919); Worthington v. Worthington, 212 Mo. App. 216, 253 S.W. 443 (1923); Baker
v. Baker, 22 Or. App. 285, 538 P.2d 1277 (1975); Cunningham v. Cunningham, 120 Tex. 491, 40 S.W.2d 46, 75 A.L.R. 1305 (1931);
Buchanan v. Buchanan, 170 Va. 458, 197 S.E. 426, 116 A.L.R. 688 (1938).
n3 Simms v. Simms, 49 Haw. 200, 412 P.2d 638 (1966).
n4 Simonds v. Simonds, 154 F.2d 326, 13 A.L.R.2d 1138 (App. D.C. 1946).
n5 Levy v. Levy, 245 Cal. App. 2d 341, 53 Cal. Rptr. 790 (1st Dist. 1966).
n6 Prosser v. Prosser, 159 Kan. 651, 157 P.2d 544 (1945).
SUPPLEMENT:
Page 169
Research References
West's Key Number Digest, Child Support [westkey]378, 454 to 457, 459
West's Key Number Digest, Divorce [westkey]219, 255, 277
A.L.R. Digest: Child Support §§ 32, 55, 165, 378, 396, 454 to 457, 459, 468
A.L.R. Digest: Divorce and Separation §§ 219, 255, 277, 304, 305, 308, 309(4), 309.5(3), 310, 311(1, 2, 5), 311.5,
312.5
A.L.R. Digest: Parent and Child §§ 3.1(5), 3.1(8), 3.3(4), 3.3(8), 3.3(9)
C.J.S., Divorce §§ 665 to 736
Change in Circumstances Justifying Modification of Child Support, 1 Am. Jur. Proof of Facts 2d 1
Interstate Enforcement of Child Support Orders, 37 Am. Jur. Trials 648 §§ 39 to 40
13B Am. Jur. Legal Forms 2d, Parent and Child §§ 191 to 209
8B Am. Jur. Pleading and Practice Forms, Divorce and Separation §§ 565 to 567, 646, 684, 971
American Law Institute, Principles of the Law of Family Dissolution, Tentative Draft No 4, chs. 2 to 3 (2000)
Morgan, Child Support Guidelines and the Shared Custody Dilemma, 10 Div. Lit. 213 (1998)
Morgan, Modification of Child Support Judgments, 12 Amer. J. Fam. L. (1998)
Krause, Family Law (4th), Ch. 16, 20
Schneider, An Invitation to Family Law, Ch. XI
Westfall, Family Law, Ch. 8 (A)
Weyrauch, Cases and Materials on Family Law, Ch. 5 (D)
358, 375 to 409, 440 to 498, 500 to 510, 619
Page 170
Conflict of laws as to right of action between husband and wife or parent and child, 96 A.L.R. 2d 973.
Maintenance of suit by child, independently of statute, against parent for support, 13 A.L.R. 2d 1142.
Page 171
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Parent and Child

8. Enforcement
§ 75 Action by child as third-party beneficiary under parental agreement
Where the parents have entered into a separation or property settlement agreement which provides for the support,
maintenance, and education of their children, several courts have recognized that the children may, as third-party bene-
ficiaries, sue to enforce such agreement. n1 Where both parents contribute to the support of their children and one parent
is refusing to pay, the parent who is paying has a sufficient interest to institute contempt proceedings. n2 Thus, children
have been allowed to enforce, as third-party beneficiaries, agreements which provide that the father will name them as
beneficiaries of an insurance policy on his life, n3 or one which provides that the parents will execute a will devising or
bequeathing certain property to the children. n4 However, a child may not enforce the support provisions of a separation
or property settlement agreement where the father is obligated to make the payments to the mother or a third person, un-
less the mother or third person either refuses to sue or is incapable of bringing the action. n5
FOOTNOTES:
n1 Worthington v. Worthington, 207 Ark. 185, 179 S.W.2d 648 (1944); In re Vai's Estate, 65 Cal. 2d 144, 52 Cal. Rptr. 705, 417 P.2d 161
(1966); Dunham v. Dunham, 189 Iowa 802, 178 N.W. 551 (1920); Forman v. Forman, 17 N.Y.2d 274, 270 N.Y.S.2d 586, 217 N.E.2d 645,
34 A.L.R.3d 1351 (1966); Smith v. Smith, 7 Ohio App. 2d 4, 36 Ohio Op. 2d 27, 218 N.E.2d 473 (3d Dist. Seneca County 1964).
n3 Reliance Life Ins. Co. of Pittsburgh v. Jaffe, 121 Cal. App. 2d 241, 263 P.2d 82 (2d Dist. 1953); Forman v. Forman, 17 N.Y.2d 274, 270
N.Y.S.2d 586, 217 N.E.2d 645, 34 A.L.R.3d 1351 (1966).
n4 Drewen v. Bank of Manhattan Co. of City of New York, 31 N.J. 110, 155 A.2d 529, 76 A.L.R.2d 221 (1959); Mitchell v. Marklund, 238
Cal. App. 2d 398, 47 Cal. Rptr. 756 (5th Dist. 1965); In re Howe's Estate, 207 Misc. 972, 132 N.Y.S.2d 855 (Sur. Ct. 1954), decree aff'd by,
286 A.D. 892, 142 N.Y.S.2d 713 (2d Dep't 1955), order aff'd, 309 N.Y. 1013, 133 N.E.2d 460 (1956).
n5 Drake v. Drake, 89 A.D.2d 207, 455 N.Y.S.2d 420 (4th Dep't 1982).
358, 375 to 409, 440 to 498, 500 to 510, 619
Page 172

Right of child to enforce provisions for his benefit in parents' separation or property settlement agreement, 34 A.L.R. 3d
1357.
Page 173
77 of 145 DOCUMENTS

Parent and Child

F. Rights and Duties of Parent as to Adult Child
§ 76 Generally
A parent's obligation to pay child support lasts only until the child reaches age of majority. n1 The general rules of the
law of parent and child, which are based on the child's incapacity, both natural and legal, and his consequent need of
protection and care, ordinarily apply only while the child is under the age of majority. n2 However, though the presump-
tion is that reciprocal duties between parent and child are at an end when the child becomes of age, this presumption is
overcome where the conditions show that either party is incapable of self-support. n3
Though a parent ordinarily has no right to the services or earnings of an adult child, n4 an adult child remaining in the
family home is not entitled to pay for services rendered unless the services were performed pursuant to a prior agree-
ment for compensation. n5
A parent may give the necessary consent for a surgical operation on an adult child where the operation is an emergency
one and the child is incapacitated to consent. n6 Where an adult child is incompetent and has no legally appointed
guardian, the right to consent to a surgical operation resides in the parent who has the legal responsibility to maintain
the child. n7
FOOTNOTES:
n1 Arthur v. Arthur, 691 So. 2d 997 (Miss. 1997).
As to the effect of emancipation of a child, see §§ 79 et seq.
n2 Waldbaum v. Waldbaum, 171 Neb. 625, 107 N.W.2d 407 (1961).
n3 Com. ex rel. O'Malley v. O'Malley, 105 Pa. Super. 232, 161 A. 883 (1932).
n4 Francis v. Atchison, T. & S.F. Ry. Co., 113 Tex. 202, 253 S.W. 819, 30 A.L.R. 114 (1923) (overruled on other grounds by, Sanchez v.
Schindler, 651 S.W.2d 249 (Tex. 1983)).
n5 Thysell v. McDonald, 134 Minn. 400, 159 N.W. 958 (1916).
n6 Anonymous v. State, 17 A.D.2d 495, 236 N.Y.S.2d 88 (3d Dep't 1963); Barfield v. South Highland Infirmary, 191 Ala. 553, 68 So. 30
(1915).
n7 Farber v. Olkon, 40 Cal. 2d 503, 254 P.2d 520 (1953).

West's Key Number Digest, Child Support [westkey]102, 103, 111, 114, 120, 383 to 392, 460
Page 174

A.L.R. Digest: Parent and Child §§ 1.5, 3
A.L.R. Index: Child
West's Key Number Digest, Child Support [westkey]102, 103, 111, 114, 120, 390 to 392
Page 175
78 of 145 DOCUMENTS

Parent and Child

§ 77 Support of adult child
Generally, parents' legal duty to support their child ceases when the child arrives at the age of majority, n1 unless the
adult child is so mentally or physically disabled that he cannot support himself, n2 or unless application for post-minority
educational support is made before the child reaches the age of majority. n3 Thus, the liability of a parent for medical ser-
vices furnished to a child does not extend to an adult child. n4 Although funeral expenses are a necessity for which the
parent is primarily responsible in the case of a minor child, n5 a parent who has paid funeral expenses for an adult child is
entitled to reimbursement from the child's estate. n6
A contract which calls for support of a child past majority is enforceable. n7
FOOTNOTES:
n1 Childers v. Childers, 229 Ark. 11, 313 S.W.2d 75 (1958); Levy v. Levy, 245 Cal. App. 2d 341, 53 Cal. Rptr. 790 (1st Dist. 1966); State
ex rel. Cromwell v. Panzeri, 76 Idaho 211, 280 P.2d 1064 (1955); Iroquois Iron Co. v. Industrial Commission, 294 Ill. 106, 128 N.E. 289, 12
A.L.R. 924 (1920); Davis v. Davis, 246 Iowa 262, 67 N.W.2d 566 (1954); Young v. Young, 413 S.W.2d 887 (Ky. 1967); State ex rel.
Kramer v. Carroll, 309 S.W.2d 654 (Mo. Ct. App. 1958); Waldbaum v. Waldbaum, 171 Neb. 625, 107 N.W.2d 407 (1961); Fitzgerald v.
Valdez, 77 N.M. 769, 427 P.2d 655 (1967); Gray v. Gray, 273 N.C. 319, 160 S.E.2d 1 (1968); Com. ex rel. O'Malley v. O'Malley, 105 Pa.
Super. 232, 161 A. 883 (1932); Broadway v. Jeffers, 185 S.C. 523, 194 S.E. 642, 114 A.L.R. 1244 (1938); Worth v. Worth, 48 Wyo. 441, 49
P.2d 649, 103 A.L.R. 107 (1935).
n2 § 78.
n3 Ex parte Cohen, 763 So. 2d 253 (Ala. 1999).
n4 Breuer v. Dowden, 207 Ky. 12, 268 S.W. 541, 42 A.L.R. 146 (1925); McGuire v. Hughes, 207 N.Y. 516, 101 N.E. 460 (1913); Broad-
way v. Jeffers, 185 S.C. 523, 194 S.E. 642, 114 A.L.R. 1244 (1938); Wantulok v. Wantulok, 67 Wyo. 22, 223 P.2d 1030, 21 A.L.R.2d 572
(1950).
n5 § 72.
n6 In re Kemmerrer, 114 Cal. App. 2d 810, 251 P.2d 345, 35 A.L.R.2d 1393 (2d Dist. 1952).
n7 Church v. Hancock, 261 N.C. 764, 136 S.E.2d 81 (1964).
SUPPLEMENT:
Cases
Page 176
Duty to support a child generally ceases when the child reaches the age of majority, which is defined as either 18 years
of age or when the child graduates from high school, whichever comes later. Style v. Shaub, 2008 PA Super 184, 955
A.2d 403 (2008).

A.L.R. Index: Child
West's Key Number Digest, Child Support [westkey]102, 103, 111, 114, 120, 390 to 392
Postmajority disability as reviving parental duty to support child, 48 A.L.R. 4th 919 § 3.
Subrogation or reimbursement, from decedent's estate, of persons other than personal representative or surviving spouse
paying funeral expenses, 35 A.L.R. 2d 1399 § 4.
Page 177
79 of 145 DOCUMENTS

Parent and Child

§ 78 Child unable to support self
Where a child is of weak body or mind, and unable to care for himself after coming of age, the parental rights and duties
remain thereafter practically unchanged and the parent's duty to support the child continues as before, n1 though there is
authority to the contrary. n2 To award child support to a disabled adult child, the trial court must determine that the adult
child is not capable of earning an income sufficient to provide for his or her reasonable living expenses, and determine
that the adult child's mental or physical disability is the cause of his or her inability to earn that income. n3 The parent
must have the means or be able to earn sufficient means to provide the needed support for his adult child. n4 The obliga-
tion to support such a child ceases only when the necessity for the support ceases. n5 This obligation is sometimes im-
posed by statute. n6 Some cases in imposing liability on a parent for an incapacitated adult child make the qualification
that the child for whom support is sought after majority must have been incapacitated at the time of reaching majority. n7
In a number of states, a statutory obligation for the support of indigent persons unable to work is imposed upon various
relatives, including the parents. n8 Also, parents in some states are liable by statute for the support of their incompetent
adult child in a state institution. n9
FOOTNOTES:
n1 Kruvant v. Kruvant, 100 N.J. Super. 107, 241 A.2d 259 (App. Div. 1968); Ex parte Cohen, 763 So. 2d 253 (Ala. 1999); Fincham v.
Levin, 155 So. 2d 883 (Fla. Dist. Ct. App. 1st Dist. 1963); Zakrocki v. Zakrocki, 115 Ind. App. 556, 60 N.E.2d 745 (1945); Davis v. Davis,
246 Iowa 262, 67 N.W.2d 566 (1954); In re Glass' Estate, 175 Kan. 246, 262 P.2d 934 (1953); Breuer v. Dowden, 207 Ky. 12, 268 S.W.
541, 42 A.L.R. 146 (1925); Freeburger v. Bichell, 135 Md. App. 680, 763 A.2d 1226 (2000); Feinberg v. Diamant, 378 Mass. 131, 389
N.E.2d 998 (1979); Lueckenotte v. Lueckenotte, 34 S.W.3d 387 (Mo. 2001); Fitzgerald v. Valdez, 77 N.M. 769, 427 P.2d 655 (1967); Lay-
ton v. Layton, 263 N.C. 453, 139 S.E.2d 732 (1965); Castle v. Castle, 15 Ohio St. 3d 279, 473 N.E.2d 803 (1984); Haxton by Haxton v.
Haxton, 299 Or. 616, 705 P.2d 721 (1985); Com. ex rel. Cann v. Cann, 274 Pa. Super. 274, 418 A.2d 403 (1980); Sayne v. Sayne, 39 Tenn.
App. 422, 284 S.W.2d 309 (1955); Van Tinker v. Van Tinker, 38 Wash. 2d 390, 229 P.2d 333 (1951).
As to whether an obligation to support an adult child can be enforced in divorce proceedings, see 24A Am. Jur. 2d, Divorce and Separation §
1006.
n2 Schmitz v. Schmitz, 70 Wis. 2d 882, 236 N.W.2d 657 (1975).
n3 Ex parte Cohen, 763 So. 2d 253 (Ala. 1999).
n4 Freeburger v. Bichell, 135 Md. App. 680, 763 A.2d 1226 (2000).
n5 Davis v. Davis, 246 Iowa 262, 67 N.W.2d 566 (1954); Crain v. Mallone, 130 Ky. 125, 113 S.W. 67 (1908); State ex rel. Kramer v. Car-
roll, 309 S.W.2d 654 (Mo. Ct. App. 1958); Rowell v. Town of Vershire, 62 Vt. 405, 19 A. 990 (1890); Schultz v. Western Farm Tractor Co.,
111 Wash. 351, 190 P. 1007, 14 A.L.R. 514 (1920).
Page 178
n6 Rebensdorf v. Rebensdorf, 169 Cal. App. 3d 138, 215 Cal. Rptr. 76, 25 Ed. Law Rep. 860 (5th Dist. 1985); Sininger v. Sininger, 300
Md. 604, 479 A.2d 1354 (1984); Castle v. Castle, 15 Ohio St. 3d 279, 473 N.E.2d 803 (1984); McBride v. Lomheim, 82 S.D. 263, 144
N.W.2d 564 (1966).
n7 Murrah v. Bailes, 255 Ala. 178, 50 So. 2d 735 (1951); Pocialik v. Federal Cement Tile Co., 121 Ind. App. 11, 97 N.E.2d 360 (1951);
Breuer v. Dowden, 207 Ky. 12, 268 S.W. 541, 42 A.L.R. 146 (1925); Castle v. Castle, 15 Ohio St. 3d 279, 473 N.E.2d 803 (1984).
As to the support of an adult child who becomes incapacitated after reaching majority, see 24A Am. Jur. 2d, Divorce and Separation § 1007.
n8 Farber v. Olkon, 40 Cal. 2d 503, 254 P.2d 520 (1953); Zdanowich v. Sherwood, 19 Conn. Supp. 89, 110 A.2d 290 (Super. Ct. 1954).
n9 State v. Bateman, 110 Kan. 546, 204 P. 682 (1922); In re Beers, 148 Mich. 300, 111 N.W. 915 (1907); Holsomback v. Slaughter, 177
Miss. 553, 171 So. 542 (1937); In re Hofmann's Estate, 261 A.D. 556, 26 N.Y.S.2d 430 (2d Dep't 1941); In re Falsey's Estate, 56 N.Y.S.2d
556 (Sur. Ct. 1945); In re Brubaker's Estate, 346 Pa. 339, 30 A.2d 135 (1943); Sanborn County v. Lutter, 46 S.D. 363, 193 N.W. 55 (1923).

A.L.R. Index: Child
West's Key Number Digest, Child Support [westkey]383 to 392, 460
Postmajority disability as reviving parental duty to support child, 48 A.L.R. 4th 919.
Page 179
80 of 145 DOCUMENTS

Parent and Child

IV. Effect of Emancipation of Child on Relationship, Duties, and Rights of Parties
§ 79 Generally
A release, which sets a child free from legal subjection and gives him the right to labor for himself and collect and con-
trol his own wages, is called "emancipation." n1 A child is emancipated on arriving at the age of majority, n2 although not
where, on account of some infirmity of mind or body rendering him incapable of taking care of himself, he is compelled
to remain with the parent. n3
As the term "emancipation" is generally used, however, it refers to emancipation by the parent before the child reaches
the age of majority, and is concerned more with the extinguishment of parental rights and duties than with the removal
of the disabilities of infancy. Thus understood, it is a product primarily of some act or omission of the parent, and can-
not be accomplished by an act of the child alone. n4 When a child needs care, custody, and maintenance, the child is not
emancipated, and the parental duty to support continues. n5
Emancipation may be either complete or partial, n6 conditional or absolute. n7 The child may be emancipated for the bal-
ance of his minority or for a shorter period. n8 Partial emancipation frees the child for only part of the period of minority,
or from only part of the parent's rights, or for some specific purpose, such as the right to his own wages. n9 The parent's
mere waiver of his right to the earnings of the child will not constitute a complete emancipation. n10 Emancipation is
complete only where there is a complete severance of the filial tie, and partial emancipation is not to be given a scope
beyond the parent's intent. n11
Complete emancipation occurs where the parent renounces all the legal duties and voluntarily surrenders all the legal
rights of his position to the child or to others. n12 It relinquishes the parent's claim to the child's services, thus conferring
on him the right to his own time and earnings. n13 It frees the parents from their duty of care and the child from their cus-
tody, control, and authority. n14 It terminates the parents' legal duty to support the child, n15 though a parent cannot by any
process of emancipation relieve himself of the duty to support a child too young or too weak to support itself. n16 If pro-
visions regarding the duration of child support are not contained in either a marriage dissolution decree or a separation
agreement, jurisdiction over child support automatically terminates when the child becomes emancipated. n17
A minor receiving public assistance is an emancipated self-supporting child who is not entitled to an order of support
from a parent. n18 However, a contract which calls for the continued support of a child after emancipation is enforceable.
n19
FOOTNOTES:
n1 Frauenthal & Schwartz v. Bank of El Paso, 170 Ark. 322, 280 S.W. 1001, 44 A.L.R. 871 (1926); Rounds Bros. v. McDaniel, 133 Ky.
669, 118 S.W. 956 (1909); Lessard v. Great Falls Woolen Co., 83 N.H. 576, 145 A. 782, 63 A.L.R. 1142 (1929).
n2 42 Am. Jur. 2d, Infants § 6.
n3 § 78.
Page 180
n4 Moe v. Dinkins, 635 F.2d 1045 (2d Cir. 1980) (applying New York law); Newburgh v. Arrigo, 88 N.J. 529, 443 A.2d 1031, 42
A.L.R.4th 795 (1982); Foxvog v. Foxvog, 7 Neb. App. 92, 578 N.W.2d 916 (1998); Sevrie v. Sevrie, 90 Misc. 2d 321, 394 N.Y.S.2d 389
(Fam. Ct. 1977); Roxana Petroleum Co. v. Cope, 1928 OK 442, 132 Okla. 152, 269 P. 1084, 60 A.L.R. 837 (1928); Detwiler v. Detwiler,
162 Pa. Super. 383, 57 A.2d 426 (1948); Parker v. Parker, 230 S.C. 28, 94 S.E.2d 12, 60 A.L.R.2d 1280 (1956).
As to what constitutes emancipation, see 24A Am. Jur. 2d, Divorce and Separation § 1042.
n5 Garver v. Garver, 981 P.2d 471 (Wyo. 1999).
n6 Jolicoeur v. Mihaly, 5 Cal. 3d 565, 96 Cal. Rptr. 697, 488 P.2d 1 (1971); In re Sonnenberg, 256 Minn. 571, 99 N.W.2d 444 (1959); Dun-
lap v. Dunlap, 84 N.H. 352, 150 A. 905, 71 A.L.R. 1055 (1930); Cafaro v. Cafaro, 118 N.J.L. 123, 191 A. 472 (N.J. Ct. Err. & App. 1937);
Gillikin v. Burbage, 263 N.C. 317, 139 S.E.2d 753 (1965); Parker v. Parker, 230 S.C. 28, 94 S.E.2d 12, 60 A.L.R.2d 1280 (1956); Memphis
Steel Const. Co. v. Lister, 138 Tenn. 307, 197 S.W. 902 (1917); American Products Co. v. Villwock, 7 Wash. 2d 246, 109 P.2d 570, 132
A.L.R. 1010 (1941); Wadoz v. United Nat. Indem. Co., 274 Wis. 383, 80 N.W.2d 262 (1957).
n7 Jolicoeur v. Mihaly, 5 Cal. 3d 565, 96 Cal. Rptr. 697, 488 P.2d 1 (1971); In re Sonnenberg, 256 Minn. 571, 99 N.W.2d 444 (1959); Wal-
lace v. Cox, 136 Tenn. 69, 188 S.W. 611 (1916); American Products Co. v. Villwock, 7 Wash. 2d 246, 109 P.2d 570, 132 A.L.R. 1010
(1941); Wadoz v. United Nat. Indem. Co., 274 Wis. 383, 80 N.W.2d 262 (1957).
n8 Wadoz v. United Nat. Indem. Co., 274 Wis. 383, 80 N.W.2d 262 (1957).
n9 Parker v. Parker, 230 S.C. 28, 94 S.E.2d 12, 60 A.L.R.2d 1280 (1956).
n10 Lufkin v. Harvey, 131 Minn. 238, 154 N.W. 1097 (1915); Gillikin v. Burbage, 263 N.C. 317, 139 S.E.2d 753 (1965); Memphis Steel
Const. Co. v. Lister, 138 Tenn. 307, 197 S.W. 902 (1917).
Where a minor child left the home of his mother having custody thereof and took summer employment in a different state, providing for his
own needs during the summer period prior to entering college, the obligation of his father to render child support until the child reached ma-
jority, became emancipated, or completed his college education was not terminated. In re Marriage of Robinson, 43 Colo. App. 171, 601
P.2d 358 (1979), judgment aff'd, 629 P.2d 1069 (Colo. 1981).
n11 Cafaro v. Cafaro, 118 N.J.L. 123, 191 A. 472 (N.J. Ct. Err. & App. 1937); Detwiler v. Detwiler, 162 Pa. Super. 383, 57 A.2d 426
(1948).
n12 Iroquois Iron Co. v. Industrial Commission, 294 Ill. 106, 128 N.E. 289, 12 A.L.R. 924 (1920); Rounds Bros. v. McDaniel, 133 Ky. 669,
118 S.W. 956 (1909); Merithew v. Ellis, 116 Me. 468, 102 A. 301, 2 A.L.R. 1429 (1917); Swenson v. Swenson, 241 Mo. App. 21, 227
S.W.2d 103, 20 A.L.R.2d 1409 (1950); Wadoz v. United Nat. Indem. Co., 274 Wis. 383, 80 N.W.2d 262 (1957); Groh v. W.O. Krahn, Inc.,
223 Wis. 662, 271 N.W. 374 (1937).
n13 Lufkin v. Harvey, 131 Minn. 238, 154 N.W. 1097 (1915); Swenson v. Swenson, 241 Mo. App. 21, 227 S.W.2d 103, 20 A.L.R.2d 1409
(1950); Gillikin v. Burbage, 263 N.C. 317, 139 S.E.2d 753 (1965); Wadoz v. United Nat. Indem. Co., 274 Wis. 383, 80 N.W.2d 262 (1957).
n14 Wood v. Wood, 135 Conn. 280, 63 A.2d 586 (1948); Lufkin v. Harvey, 131 Minn. 238, 154 N.W. 1097 (1915); Swenson v. Swenson,
241 Mo. App. 21, 227 S.W.2d 103, 20 A.L.R.2d 1409 (1950); Gillikin v. Burbage, 263 N.C. 317, 139 S.E.2d 753 (1965); Wadoz v. United
Nat. Indem. Co., 274 Wis. 383, 80 N.W.2d 262 (1957).
n15 Wingate v. Estate of Ryan, 149 N.J. 227, 693 A.2d 457 (1997); Department of Human Services, State of Miss. v. Fillingane, 761 So. 2d
869 (Miss. 2000); Specking v. Specking, 528 S.W.2d 448 (Mo. Ct. App. 1975); Reinsch v. Reinsch, 259 Neb. 564, 611 N.W.2d 86 (2000);
Gillikin v. Burbage, 263 N.C. 317, 139 S.E.2d 753 (1965); Goodyear v. Goodyear, 257 N.C. 374, 126 S.E.2d 113 (1962).
As to the effect of a child's emancipation on a divorced or separated parent's liability for child support, see 24A Am. Jur. 2d, Divorce and
Separation § 1041.
n16 Gillikin v. Burbage, 263 N.C. 317, 139 S.E.2d 753 (1965).
n18 Debra R v. Sidney R, 85 Misc. 2d 914, 380 N.Y.S.2d 579 (Fam. Ct. 1976).
Page 181
n19 Church v. Hancock, 261 N.C. 764, 136 S.E.2d 81 (1964).
As to statutory emancipation, see 42 Am. Jur. 2d, Infants § 7.
REFERENCE: West's Key Number Digest, Child Support [westkey]101, 386 to 389, 460
West's Key Number Digest, Infants [westkey]9
West's Key Number Digest, Child Support [westkey]101, 386, 389, 460
55 A.L.R. 5th 557.
Notice of emancipation of minor -- By parent. 13B Am. Jur. Legal Forms 2d, Parent and Child § 191:33.
Page 182
81 of 145 DOCUMENTS

Parent and Child

§ 80 How accomplished
Power to emancipate resides in that parent having the duty to support. n1 An express emancipation takes place when the
parent freely and voluntarily agrees with his child, who is able to take care and provide for himself, that he may leave
home, earn his own living, and do as he pleases with his earnings. n2 Such a contract may be written or oral. n3
The question of whether or not emancipation has occurred must be determined from the facts of each case. n4 Emancipa-
tion has been deemed to have occurred, thereby relieving a minor child's parents of the obligation of support when the
child:
.leaves home and earns his or her own support n5
.earns his or her own support while still living with a parent n6
.leaves the parent's home, regardless of earning his or own support n7
.becomes pregnant and lives in a conjugal relationship n8
.changes his or her last name from that of the divorced father n9
.refuses to see, visit, or live with an obligor-parent n10
.receives public assistance in his or her own name n11
FOOTNOTES:
n1 Gillikin v. Burbage, 263 N.C. 317, 139 S.E.2d 753 (1965).
n2 Rounds Bros. v. McDaniel, 133 Ky. 669, 118 S.W. 956 (1909); Merithew v. Ellis, 116 Me. 468, 102 A. 301, 2 A.L.R. 1429 (1917);
Specking v. Specking, 528 S.W.2d 448 (Mo. Ct. App. 1975).
n3 Wood v. Wood, 135 Conn. 280, 63 A.2d 586 (1948); Wurth v. Wurth, 322 S.W.2d 745 (Mo. 1959).
As to implied emancipation, see § 81.
n4 § 84.
n5 Parisi v. Parisi, 140 A.D.2d 443, 528 N.Y.S.2d 145 (2d Dep't 1988); Poudre Val. Hospital Dist. v. Heckart, 491 P.2d 984 (Colo. Ct. App.
1971); Ison v. Florida Sanitarium and Benevolent Ass'n, 302 So. 2d 200 (Fla. Dist. Ct. App. 4th Dist. 1974); Ireland v. Ireland, 123 Idaho
955, 855 P.2d 40 (1993).
n6 Hill v. Hill, 523 So. 2d 445 (Ala. Civ. App. 1988); Moody v. Moody, 565 N.E.2d 388 (Ind. Ct. App. 1st Dist. 1991); Zalmanoff v. Zal-
manoff, 862 S.W.2d 941 (Mo. Ct. App. E.D. 1993); Foutch v. Foutch, 2 Wash. App. 407, 469 P.2d 223 (Div. 1 1970).
Page 183
n7 Ontario County Dept. of Social Services ex rel. Christopher L. v. Gail K., 269 A.D.2d 847, 703 N.Y.S.2d 337 (4th Dep't 2000); Office of
Child Support Enforcement v. Calbert, 70 Ark. App. 520, 20 S.W.3d 450 (2000); McGregor v. McGregor, 237 Ga. 57, 226 S.E.2d 591
(1976); Blanding v. Southwestern Life Ins. Co., 268 S.C. 306, 233 S.E.2d 107 (1977).
n8 Town v. Anonymous (1983-6), 39 Conn. Supp. 35, 467 A.2d 687 (Super. Ct. 1983); Rennie v. Rennie, 718 So. 2d 1091 (Miss. 1998);
Parker v. Stage, 43 N.Y.2d 128, 400 N.Y.S.2d 794, 371 N.E.2d 513, 98 A.L.R.3d 328 (1977).
n9 McCarthy v. Braiman, 125 A.D.2d 572, 510 N.Y.S.2d 3 (2d Dep't 1986); Warshaw v. Ginsburg, 245 Cal. App. 2d 513, 53 Cal. Rptr. 911
(2d Dist. 1966).
n10 Snellings v. Snellings, 272 Ala. 254, 130 So. 2d 363 (1961); Moody v. Moody, 565 N.E.2d 388 (Ind. Ct. App. 1st Dist. 1991); Ham-
brick v. Prestwood, 382 So. 2d 474 (Miss. 1980).
n11 Basi v. Basi, 136 A.D.2d 945, 524 N.Y.S.2d 955 (4th Dep't 1988); Town v. Anonymous (1983-6), 39 Conn. Supp. 35, 467 A.2d 687
(Super. Ct. 1983).
55 A.L.R. 5th 557.
Page 184
82 of 145 DOCUMENTS

Parent and Child

§ 81 Implied emancipation
Emancipation need not be express; it may be implied from the conduct of the parties and surrounding circumstances, n1
especially from conduct of the parents inconsistent with the continuation of parental and filial legal rights and obliga-
tions. n2 Emancipation may be, n3 though it is not invariably, n4 inferred from the fact that the child is earning his own way
and spending his money as he pleases. Even where the child is both living away from home and supporting himself,
emancipation, though found in some cases, n5 has not been found in others. n6 The issue of whether a child has freed him-
self from the custody of his parents is one of fact, for determination by the finder of fact. n7 However, where a child ca-
pable of earning his own way leaves home expressly for that purpose, emancipation will usually be implied, n8 especially
if he does so with parental consent. n9 Emancipation may occur even though the child continues to live in his parents'
home. n10
The circumstances and conduct giving rise to an implied emancipation may be such that only a partial, not a complete,
emancipation may be inferred. When parents allow or compel a minor child to hire himself out to others and permit him
to collect and retain his earnings, without asserting a claim thereto, this amounts to a waiver of the parental rights to
such services or earnings and constitutes an implied emancipation of the child. n11 Thus, if a minor contracts on his own
account for his services, with the knowledge of his parent, who makes no objection, there is an implied emancipation, at
least until the contract is revoked. n12 Where the parent does not claim the services of the child because of the filial rela-
tionship, but contracts for them under an agreement entered into between them as strangers, such an agreement neces-
sarily implies emancipation. n13 A child is not emancipated, however, by the fact that his father pays him money from
time to time for services performed. n14
FOOTNOTES:
n1 Zozaski v. Mather Stock Car Co., 312 Ill. App. 585, 38 N.E.2d 825 (1st Dist. 1942); Surface v. Dorrell, 115 Ind. App. 244, 57 N.E.2d 66
(1944); Merithew v. Ellis, 116 Me. 468, 102 A. 301, 2 A.L.R. 1429 (1917); Lufkin v. Harvey, 131 Minn. 238, 154 N.W. 1097 (1915);
Specking v. Specking, 528 S.W.2d 448 (Mo. Ct. App. 1975); Dunlap v. Dunlap, 84 N.H. 352, 150 A. 905, 71 A.L.R. 1055 (1930); American
Products Co. v. Villwock, 7 Wash. 2d 246, 109 P.2d 570, 132 A.L.R. 1010 (1941); Wadoz v. United Nat. Indem. Co., 274 Wis. 383, 80
N.W.2d 262 (1957).
n2 Merithew v. Ellis, 116 Me. 468, 102 A. 301, 2 A.L.R. 1429 (1917); Lessard v. Great Falls Woolen Co., 83 N.H. 576, 145 A. 782, 63
A.L.R. 1142 (1929).
n3 Wurth v. Wurth, 322 S.W.2d 745 (Mo. 1959).
n4 Lufkin v. Harvey, 131 Minn. 238, 154 N.W. 1097 (1915); Detwiler v. Detwiler, 162 Pa. Super. 383, 57 A.2d 426 (1948).
n5 Buxton v. Bishop, 185 Va. 1, 37 S.E.2d 755, 165 A.L.R. 719 (1946).
n6 Vaupel v. Bellach, 261 Iowa 376, 154 N.W.2d 149 (1967); Wallace v. Cox, 136 Tenn. 69, 188 S.W. 611 (1916).
Page 185
n7 Surface v. Dorrell, 115 Ind. App. 244, 57 N.E.2d 66 (1944); Department of Human Services, State of Miss. v. Fillingane, 761 So. 2d 869
(Miss. 2000).
n8 State ex rel. Kramer v. Carroll, 309 S.W.2d 654 (Mo. Ct. App. 1958).
n9 Wood v. Wood, 135 Conn. 280, 63 A.2d 586 (1948).
n10 Frauenthal & Schwartz v. Bank of El Paso, 170 Ark. 322, 280 S.W. 1001, 44 A.L.R. 871 (1926); Martinez v. Southern Pac. Co., 45 Cal.
2d 244, 288 P.2d 868 (1955); Lufkin v. Harvey, 131 Minn. 238, 154 N.W. 1097 (1915); Dunlap v. Dunlap, 84 N.H. 352, 150 A. 905, 71
A.L.R. 1055 (1930).
n11 Rounds Bros. v. McDaniel, 133 Ky. 669, 118 S.W. 956 (1909).
n12 Vance v. Calhoun, 77 Ark. 35, 90 S.W. 619 (1905); Culberson v. Alabama Const. Co., 127 Ga. 599, 56 S.E. 765 (1907); Iroquois Iron
Co. v. Industrial Commission, 294 Ill. 106, 128 N.E. 289, 12 A.L.R. 924 (1920); Rounds Bros. v. McDaniel, 133 Ky. 669, 118 S.W. 956
(1909); Earle v. Whiting, 196 Mass. 371, 82 N.E. 32 (1907); Webb v. Harris, 1912 OK 80, 32 Okla. 491, 121 P. 1082 (1912).
n13 Merithew v. Ellis, 116 Me. 468, 102 A. 301, 2 A.L.R. 1429 (1917); Dunlap v. Dunlap, 84 N.H. 352, 150 A. 905, 71 A.L.R. 1055
(1930).
n14 Smith v. Gilbert, 80 Ark. 525, 98 S.W. 115 (1906); Aetna Life Ins. Co. v. Industrial Acc. Commission, 175 Cal. 91, 165 P. 15 (1917);
American Products Co. v. Villwock, 7 Wash. 2d 246, 109 P.2d 570, 132 A.L.R. 1010 (1941).
55 A.L.R. 5th 557.
Page 186
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§ 82 By marriage
The marriage of a minor child, either male or female, works an emancipation, for the reason that the marriage gives rise
to a new relation inconsistent with subjection to the control and care of the parent. n1 The parents' support obligation
ceases, as a rule, when a minor child marries. n2 However, there is some conflict in the authorities as to whether this
principle operates where the marriage is without parental consent and the child is still under the age of consent, with
some cases holding that marriage under such circumstances does not emancipate the child n3 and others holding that
emancipation does take effect as a result of the marriage. n4
A child who is emancipated by marriage does not become unemancipated or entitled to child support if divorced while
under the age of eighteen. n5
Although a marriage may release a child from parental authority, it does not change the status of a child from a minor to
an adult without some statute expressly providing for the change. n6
FOOTNOTES:
n1 Newburgh v. Arrigo, 88 N.J. 529, 443 A.2d 1031, 42 A.L.R.4th 795 (1982); Town of Milford v. Town of Greenwich, 126 Conn. 340, 11
A.2d 352 (1940); In re H.G., 601 N.W.2d 84 (Iowa 1999); State v. Gonzales, 241 La. 619, 129 So. 2d 796, 84 A.L.R.2d 1248 (1961); Speck-
ing v. Specking, 528 S.W.2d 448 (Mo. Ct. App. 1975); Cochran v. Cochran, 196 N.Y. 86, 89 N.E. 470 (1909); Church v. Hancock, 261 N.C.
764, 136 S.E.2d 81 (1964); Perry v. Perry, 21 Ohio L. Abs. 577, 1936 WL 2052 (Ct. App. 2d Dist. Franklin County 1936); McWhorter v.
Gibson, 19 Tenn. App. 152, 84 S.W.2d 108 (1935); Gimlett v. Gimlett, 95 Wash. 2d 699, 629 P.2d 450 (1981); State ex rel. Dept. of Health
and Human Resources, Bureau of Child Support Enforcement v. Farmer, 206 W. Va. 249, 523 S.E.2d 840 (1999).
n2 Crook v. Crook, 80 Ariz. 275, 296 P.2d 951, 58 A.L.R.2d 352 (1956); Jackson v. Jackson, 200 A.2d 380 (D.C. 1964); Church v. Han-
cock, 261 N.C. 764, 136 S.E.2d 81 (1964); Neff v. Ulmer, 404 S.W.2d 644 (Tex. Civ. App. Amarillo 1966), writ refused n.r.e., (Oct. 26,
1966); Worth v. Worth, 48 Wyo. 441, 49 P.2d 649, 103 A.L.R. 107 (1935).
n3 Guillebert v. Grenier, 107 La. 614, 32 So. 238 (1902); Wolf v. Wolf, 194 A.D. 33, 185 N.Y.S. 37 (2d Dep't 1920).
n4 Easterly v. Cook, 140 Cal. App. 115, 35 P.2d 164 (3d Dist. 1934); Irby v. State, 57 Ga. App. 717, 196 S.E. 101 (1938); Stough v. Young,
185 So. 476 (La. Ct. App. 2d Cir. 1938); State ex rel. Dept. of Health and Human Resources, Bureau of Child Support Enforcement v.
Farmer, 206 W. Va. 249, 523 S.E.2d 840 (1999).
n5 State ex rel. Dept. of Health and Human Resources, Bureau of Child Support Enforcement v. Farmer, 206 W. Va. 249, 523 S.E.2d 840
(1999).
n6 In re H.G., 601 N.W.2d 84 (Iowa 1999).
Page 187

Consent of parent -- Marriage of minor child. 13B Am. Jur. Legal Forms 2d, Parent and Child § 191:37.
Page 188
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§ 83 By military service
When a minor enlists in military service, the minor is emancipated so long as his military service continues. n1
Some cases state that during the period of service in the armed forces the authority of the parent is merely suspended,
and where a minor's enlistment has terminated before he becomes of age, he is again subject to the control of his par-
ents. n2 Another view is that whether his emancipation continues is solely within the child's control. He can continue it
by remaining self-supporting and not submitting himself to the care and control of his parents, or he may revert to une-
mancipated status and be dependent on his parents for his support until re-emancipation or majority. n3
FOOTNOTES:
n1 Newburgh v. Arrigo, 88 N.J. 529, 443 A.2d 1031, 42 A.L.R.4th 795 (1982); Iroquois Iron Co. v. Industrial Commission, 294 Ill. 106,
128 N.E. 289, 12 A.L.R. 924 (1920); Corbridge v. Corbridge, 230 Ind. 201, 102 N.E.2d 764 (1952); Swenson v. Swenson, 241 Mo. App. 21,
227 S.W.2d 103, 20 A.L.R.2d 1409 (1950); Gimlett v. Gimlett, 95 Wash. 2d 699, 629 P.2d 450 (1981).
As to the induction of a child into the armed forces as a ground for the termination of support provisions of a divorce or separation decree,
see 24 Am. Jur. 2d, Divorce and Separation § 1042.
n2 Dean v. Oregon R & Nav. Co., 44 Wash. 564, 87 P. 824 (1906).
n3 Fauser v. Fauser, 50 Misc. 2d 601, 271 N.Y.S.2d 59 (Fam. Ct. 1966).
Page 189
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§ 84 Presumptions and burden of proof
The emancipation of a minor child must be proved; it is never presumed, n1 and the burden of proof is on the one assert-
ing it. n2 The proof must be clear, cogent, and convincing. n3 However, though complete emancipation, operating as it
does to sever completely the family relation, ought not to be lightly inferred, n4 partial emancipation, which has only a
limited effect on the relationship, may be inferred more readily. n5
In determining whether a child has been emancipated, the intention of the parent governs. n6 However, intent of a parent
to emancipate is not to be implied from the mere fact that the child is under the temporary control of a person other than
the parent. n7
Whether a child has been emancipated must be determined largely on the peculiar facts and circumstances of each case,
n8
and, therefore, is ordinarily a question for the jury. n9
FOOTNOTES:
n1 Zozaski v. Mather Stock Car Co., 312 Ill. App. 585, 38 N.E.2d 825 (1st Dist. 1942); Surface v. Dorrell, 115 Ind. App. 244, 57 N.E.2d 66
(1944); Vaupel v. Bellach, 261 Iowa 376, 154 N.W.2d 149 (1967); Lufkin v. Harvey, 131 Minn. 238, 154 N.W. 1097 (1915); Dunlap v.
Dunlap, 84 N.H. 352, 150 A. 905, 71 A.L.R. 1055 (1930); Detwiler v. Detwiler, 162 Pa. Super. 383, 57 A.2d 426 (1948); Parker v. Parker,
230 S.C. 28, 94 S.E.2d 12, 60 A.L.R.2d 1280 (1956); Wallace v. Cox, 136 Tenn. 69, 188 S.W. 611 (1916); American Products Co. v. Vill-
wock, 7 Wash. 2d 246, 109 P.2d 570, 132 A.L.R. 1010 (1941).
n2 Cafaro v. Cafaro, 118 N.J.L. 123, 191 A. 472 (N.J. Ct. Err. & App. 1937); Gillikin v. Burbage, 263 N.C. 317, 139 S.E.2d 753 (1965);
Bagyi v. Miller, 3 Ohio App. 2d 371, 32 Ohio Op. 2d 518, 210 N.E.2d 887 (7th Dist. Mahoning County 1965); Detwiler v. Detwiler, 162 Pa.
Super. 383, 57 A.2d 426 (1948); Parker v. Parker, 230 S.C. 28, 94 S.E.2d 12, 60 A.L.R.2d 1280 (1956); Memphis Steel Const. Co. v. Lister,
138 Tenn. 307, 197 S.W. 902 (1917); American Products Co. v. Villwock, 7 Wash. 2d 246, 109 P.2d 570, 132 A.L.R. 1010 (1941).
n3 Holmes v. Raffo, 60 Wash. 2d 421, 374 P.2d 536 (1962); American Products Co. v. Villwock, 7 Wash. 2d 246, 109 P.2d 570, 132
A.L.R. 1010 (1941).
n4 Memphis Steel Const. Co. v. Lister, 138 Tenn. 307, 197 S.W. 902 (1917).
n5 Brumfield v. Brumfield, 194 Va. 577, 74 S.E.2d 170 (1953) (overruled in part on other grounds by, Smith v. Kauffman, 212 Va. 181,
183 S.E.2d 190 (1971)) and (overruling recognized by, USAA Cas. Ins. Co. v. Hensley, 251 Va. 177, 465 S.E.2d 791 (1996)).
n6 Wurth v. Wurth, 322 S.W.2d 745 (Mo. 1959); Wadoz v. United Nat. Indem. Co., 274 Wis. 383, 80 N.W.2d 262 (1957).
n7 Smith v. Gilbert, 80 Ark. 525, 98 S.W. 115 (1906); Lufkin v. Harvey, 131 Minn. 238, 154 N.W. 1097 (1915); Wallace v. Cox, 136 Tenn.
69, 188 S.W. 611 (1916).
Page 190
n8 Martinez v. Southern Pac. Co., 45 Cal. 2d 244, 288 P.2d 868 (1955); Napolitano v. Napolitano, 732 P.2d 245 (Colo. Ct. App. 1986);
Vaupel v. Bellach, 261 Iowa 376, 154 N.W.2d 149 (1967); Parker v. Parker, 230 S.C. 28, 94 S.E.2d 12, 60 A.L.R.2d 1280 (1956); Niesen v.
Niesen, 38 Wis. 2d 599, 157 N.W.2d 660, 32 A.L.R.3d 1047 (1968).
n9 Martinez v. Southern Pac. Co., 45 Cal. 2d 244, 288 P.2d 868 (1955); Wood v. Wood, 135 Conn. 280, 63 A.2d 586 (1948); Iroquois Iron
Co. v. Industrial Commission, 294 Ill. 106, 128 N.E. 289, 12 A.L.R. 924 (1920); Cafaro v. Cafaro, 118 N.J.L. 123, 191 A. 472 (N.J. Ct. Err.
& App. 1937); Detwiler v. Detwiler, 162 Pa. Super. 383, 57 A.2d 426 (1948); Parker v. Parker, 230 S.C. 28, 94 S.E.2d 12, 60 A.L.R.2d 1280
(1956); Wadoz v. United Nat. Indem. Co., 274 Wis. 383, 80 N.W.2d 262 (1957).
55 A.L.R. 5th 557.
Page 191
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§ 85 Revocability; effect and incidents
Emancipation is not necessarily a continuing status, but may be terminated at any time during the child's minority. n1
When a child has been emancipated, whether expressly or impliedly, and has entered into a lawful contractual relation-
ship, the parent cannot revoke the child's emancipation so as to abrogate such contract or affect the rights of the con-
tracting parties acquired thereunder. n2 The emancipation of the child cannot be revoked after the child has earned
wages, so as to give the parent a right to those wages. n3 The father, after his child's emancipation, can enter into a valid
contract of employment with the child, and agree to pay him wages. n4
Although the emancipation of a child who is able to support himself terminates the parents' support obligation, if the
child subsequently becomes unable to support himself the obligation revives. n5
Emancipation may also be rescinded or nullified by consent of the parties. n6 The question whether such rescission has
taken place is one of fact and is for the jury. n7
FOOTNOTES:
n1 Vaupel v. Bellach, 261 Iowa 376, 154 N.W.2d 149 (1967); Memphis Steel Const. Co. v. Lister, 138 Tenn. 307, 197 S.W. 902 (1917);
Gulf, C & S.F. Ry. Co. v. Lemons, 109 Tex. 244, 206 S.W. 75, 5 A.L.R. 943 (1918).
n3 Smith v. Gilbert, 80 Ark. 525, 98 S.W. 115 (1906); Vance v. Calhoun, 77 Ark. 35, 90 S.W. 619 (1905); Rounds Bros. v. McDaniel, 133
Ky. 669, 118 S.W. 956 (1909).
n4 Frauenthal & Schwartz v. Bank of El Paso, 170 Ark. 322, 280 S.W. 1001, 44 A.L.R. 871 (1926); Dunlap v. Dunlap, 84 N.H. 352, 150 A.
905, 71 A.L.R. 1055 (1930).
n5 Iroquois Iron Co. v. Industrial Commission, 294 Ill. 106, 128 N.E. 289, 12 A.L.R. 924 (1920); Corbridge v. Corbridge, 230 Ind. 201, 102
N.E.2d 764 (1952); Simmons v. Stewart, 198 Ky. 330, 248 S.W. 892 (1923); Lufkin v. Harvey, 131 Minn. 238, 154 N.W. 1097 (1915);
Townsen v. Townsen, 101 Ohio App. 85, 1 Ohio Op. 2d 49, 137 N.E.2d 789 (9th Dist. Summit County 1954).
Page 192

Page 193
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Parent and Child

§ 86 Rights of creditor of parent
Although the earnings of an unemancipated minor child may be taken for the parent's debts, n1 where a father has eman-
cipated his child, he is under no legal obligation, although he is insolvent, to claim the child's earnings for the benefit of
his creditors. n2
Generally, when a parent has emancipated a minor child, and later contracted for his services in return for an agreed
compensation, there is no fraud on the creditors of the parent, and they have no right in or to the compensation owing or
given to the child. n3
FOOTNOTES:
n1 § 41.
n2 Frauenthal & Schwartz v. Bank of El Paso, 170 Ark. 322, 280 S.W. 1001, 44 A.L.R. 871 (1926).
Page 194
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Parent and Child

V. Support of Parent by Child
§ 87 Generally
The common law did not recognize any duty of an adult child to contribute to the support of his parents. n1 Any legal
duty which rests on the child in this respect must be based upon either contract or statute. n2 Where one child supports a
parent, there is no right of contribution against another child in the absence of statute. n3
In some jurisdictions, there are statutes imposing on children, to the extent of their ability, the duty to support indigent
parents. n4 "Support," for purposes of a statute requiring an adult child to provide adequate support for a dependent par-
ent if the parent is in need of financial assistance and the child has the financial means to provide such support, applies
only to financial support, and does not encompass nonfinancial support considerations. n5 The financial ability of an
adult child to provide support for a parent may be determined at any time there is an outstanding debt not barred by the
statute of limitations. n6 A statute requiring children to support indigent parents imposes no duty to support a foster par-
ent who reared the child from infancy but never adopted her. n7
Statutes sometimes make adult children liable for maintenance of a parent in a state institution. n8
FOOTNOTES:
n1 Duffy v. Yordi, 149 Cal. 140, 84 P. 838 (1906); Board of Com'rs of Phillips County v. Kohrell, 100 Colo. 445, 68 P.2d 32 (1937);
Woods v. Ashland Hospital Corp., 340 S.W.2d 594, 92 A.L.R.2d 344 (Ky. 1960); Com. v. Morrisey, 150 Pa. Super. 202, 27 A.2d 446
(1942).
n2 Shaver v. Brierton, 1 Ill. App. 2d 192, 117 N.E.2d 298 (2d Dist. 1954); Noble v. Edberg, 252 Iowa 135, 106 N.W.2d 102 (1960); Peter-
son v. Rowe, 63 N.M. 135, 314 P.2d 892, 64 A.L.R.2d 1067 (1957); Albert Einstein Medical Center v. Forman, 212 Pa. Super. 450, 243
A.2d 181 (1968); Davis v. Com., 230 Va. 201, 335 S.E.2d 375 (1985).
n3 Connell v. Connell, 131 W. Va. 209, 46 S.E.2d 724 (1948).
n4 Pickett v. Pickett, 145 Ind. App. 555, 251 N.E.2d 684 (Div. 2 1969); Woods v. Ashland Hospital Corp., 340 S.W.2d 594, 92 A.L.R.2d
344 (Ky. 1960).
As to statutes requiring people to support indigent relatives, see 79 Am. Jur. 2d, Welfare Laws § 76.
Related References:
"Honor thy father and thy mother" -- However, for how long? Adult children's duty to care for and protect elderly par-
ents. 35 U Louisville J Fam L 4:765 (1998).
n5 State v. Flontek, 82 Ohio St. 3d 10, 693 N.E.2d 767 (1998).

Page 195
n6 Prairie Lakes Health Care System, Inc. v. Wookey, 1998 SD 99, 583 N.W.2d 405 (S.D. 1998).
n7 Parshall v. Parshall, 56 Cal. App. 553, 205 P. 1083 (1st Dist. 1922).
n8 State v. Berglund, 4 Conn. Cir. Ct. 644, 238 A.2d 450 (App. Div. 1967).
REFERENCE: West's Key Number Digest, Child Support [westkey]101, 386, 390, 391
West's Key Number Digest, Child Support [westkey]101, 386, 390, 391
Agreement between two children for support of parent -- Children to alternate in providing over half of support. 13B
Am. Jur. Legal Forms 2d, Parent and Child § 191:223.
Page 196
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Parent and Child

VI. Contracts, Gifts, and Other Transactions Between Parent and Child
§ 88 Generally
Gifts and conveyances between a parent and his child require no other consideration than natural parental or filial affec-
tion and duty. n1
A child who has reached majority is as free to contract with his parents as with anyone else. n2
Absent an adoption agreement between a stepfather and his stepchildren's natural father or mother, the stepchildren are
not entitled to inherit the stepfather's estate as his virtually adopted children. n3
FOOTNOTES:
n1 Shackleford v. Shackleford, 144 Ark. 365, 223 S.W. 561, 11 A.L.R. 730 (1920); In re Acken's Estate, 144 Iowa 519, 123 N.W. 187
(1909); Bankers' Trust Co. v. Bank of Rockville Center Trust Co., 114 N.J. Eq. 391, 168 A. 733, 89 A.L.R. 697 (Ct. Err. & App. 1933).
n2 Williams v. Canary, 249 F. 344, 11 A.L.R. 726 (C.C.A. 8th Cir. 1918).
n3 Franklin v. Gilchrist, 268 Ga. 497, 491 S.E.2d 361 (1997).
REFERENCE: West's Key Number Digest, Parent and Child [westkey]9, 11

A.L.R. Digest: Parent and Child §§ 1.5, 10, 11
Proof of Negligent Sale, Entrustment, or Storage of Firearm, 37 Am. Jur. Proof of Facts 3d 1 § 20
Page 197
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Parent and Child

§ 89 Contracts for services
A parent may contract to employ and pay his minor child for his services, and be bound, like any stranger, to fulfill his
agreement. n1 Some courts hold that proof of such a contractual relationship must be clear and convincing, n2 but in other
jurisdictions it may be established by the ordinary measure of proof required in civil cases, n3 either by evidence of an
express agreement or of facts and circumstances showing that both parties understood that the services were to be paid
for. n4
Any labor supplied by a parent to a child is presumed to be gratuitous. The presumption of gratuity is a rebuttable one
and may be overcome by proof of an express contract regarding compensation or of facts and circumstances which
show an understanding of the parties that payment was to be made. n5
FOOTNOTES:
As to a contract for services as constituting an implied emancipation, see § 81.
n2 American Products Co. v. Villwock, 7 Wash. 2d 246, 109 P.2d 570, 132 A.L.R. 1010 (1941).
n3 Peters v. Poro's Estate, 96 Vt. 95, 117 A. 244, 25 A.L.R. 615 (1922).
n4 Sykes v. Smith, 333 Mass. 560, 132 N.E.2d 168 (1956); Thysell v. McDonald, 134 Minn. 400, 159 N.W. 958 (1916).
n5 Meyer v. State Farm Mut. Auto. Ins. Co., 192 Neb. 831, 224 N.W.2d 770, 89 A.L.R.3d 824 (1975).

Page 198
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Parent and Child

§ 90 Gift or conveyance by parent to child
A parent may make a gift inter vivos to his child. n1
A parent cannot make his own promissory note the subject of a gift by him to his child, love and affection being insuffi-
cient consideration to support a promissory note. n2
A parol gift of land from a parent to a child, although not recognized at law under the statute of frauds, may confer an
equitable title upon the child where he takes possession and makes valuable improvements on the land. n3
FOOTNOTES:
n1 O'Fallon v. O'Fallon ex rel. Ngar, 341 Ark. 138, 14 S.W.3d 506 (2000); In re Acken's Estate, 144 Iowa 519, 123 N.W. 187 (1909).
As to the Uniform Gifts to Minors Act, see 38 Am. Jur. 2d, Gifts § 16.
n2 Sullivan v. Sullivan, 122 Ky. 707, 29 Ky. L. Rptr. 239, 92 S.W. 966 (1906).
n3 Barnes v. Banks, 223 Ill. 352, 79 N.E. 117 (1906).

Page 199
92 of 145 DOCUMENTS

Parent and Child

§ 91 Delivery and acceptance
As in other cases, a gift or conveyance from a parent to his child, in order to be valid, must be completed by delivery. n1
Less positive and unequivocal testimony is required to establish the delivery of a deed or gift from a parent to his chil-
dren than between persons who are not related; and in cases where there is no claim of fraud or undue influence, very
slight evidence will suffice. n2 In order that the deposit by a parent of money in a bank to the credit of his minor child
shall operate as a valid gift inter vivos, it must appear, not only that the parent intended a gift, but also that he executed
his intention, and there must be an acceptance of the gift by the child. n3
On the theory that much less is required in such a case than where the deed is in favor of a stranger, some cases take the
view that the mere execution of a deed by a parent to his child gives rise to a presumption of delivery. n4 This is true
even though the child was entirely ignorant of the gift. n5 The delivery of a deed to a third person for the benefit of the
child may raise a presumption of delivery to the child. n6
Acceptance of the deed by the child will be presumed where acceptance will be beneficial to the child. n7
FOOTNOTES:
n1 In re Acken's Estate, 144 Iowa 519, 123 N.W. 187 (1909).
The record supported the finding that a father made a valid inter vivos gift of an automobile to his son, even though the father retained title
to the automobile; the mother testified that the father told her he "was going to buy" a car for their son and that the father later told her that
he "had bought" a car for their son, the loan officer with the credit union at which the father applied for a loan to purchase the automobile
testified that the father stated that he was buying it for his son, the son was a minor at the time of the alleged gift and thus could not acquire
title, and evidence indicated that the father gave the son and the mother keys, but did not retain a set for himself. O'Fallon v. O'Fallon ex rel.
Ngar, 341 Ark. 138, 14 S.W.3d 506 (2000).
n2 Union Trust & Savings Bank v. Tyler, 161 Mich. 561, 126 N.W. 713 (1910); Waite v. Grubbe, 43 Or. 406, 73 P. 206 (1903); Bankers'
Trust Co. v. Bank of Rockville Center Trust Co., 114 N.J. Eq. 391, 168 A. 733, 89 A.L.R. 697 (Ct. Err. & App. 1933).
n3 McKinnon v. First Nat. Bank, 77 Fla. 777, 82 So. 748, 6 A.L.R. 111 (1919); Matter of Estate of Friedman, 123 Ill. App. 3d 82, 78 Ill.
Dec. 573, 462 N.E.2d 692 (1st Dist. 1984).
n4 Riegel v. Riegel, 243 Ill. 626, 90 N.E. 1108 (1910); Abbott v. Abbott, 189 Ill. 488, 59 N.E. 958 (1901).
n5 Ireland v. Dyer, 133 Ga. 851, 67 S.E. 195 (1910); Phillips v. Plastridge, 107 Vt. 267, 179 A. 157, 99 A.L.R. 1074 (1935).
n6 Cooper v. Cooper, 162 Mich. 304, 127 N.W. 266 (1910).
n7 McKinnon v. First Nat. Bank, 77 Fla. 777, 82 So. 748, 6 A.L.R. 111 (1919); Pentico v. Hays, 75 Kan. 76, 88 P. 738 (1907).
Page 200

Page 201
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Parent and Child

§ 92 Evidence and presumptions
As a general rule, less evidence is required to establish a gift to a child than to a stranger. n1 There is, however, some au-
thority to the effect that a parol gift to a child can be established only by clear and convincing evidence. n2 The suffi-
ciency of the evidence for this purpose is a matter that can only be determined in the light of all the circumstances of the
particular case. n3 In a situation of a gift between a parent and child, the delivery may be proved by the declarations of
the donor, just as the gift itself may be. n4
A landowner who conveys title by deed to secure a debt can nonetheless convey legal title to his child by operation of a
statute creating the conclusive presumption of a gift if the child has exclusive possession without paying rent for seven
years. n5 However, if the parent conveys the land at issue before the completion of the period of exclusive possession by
the child, the child obtains no title by operation of the statute. n6
The law will presume a gift by a parent to a child from circumstances where it would not be implied between strangers.
n7
The legal inference arising from a transfer of money or property by a parent to his children, when unexplained, is that
it was by way of gift. n8 When, however, the parent advances funds and manifests an intent to retain a beneficial interest,
the gift presumption is rebutted and a resulting trust arises in favor of the parent. n9 To overcome the presumption of gift,
the proof offered must be certain, definite, reliable, and convincing, and leave no reasonable doubt as to the intention of
the parties. n10 However, where the parent is indebted to the child, the presumption is that the transfer is a payment on the
indebtedness, not a gift to the child. n11
FOOTNOTES:
n1 Stewart v. Damron, 63 Ariz. 158, 160 P.2d 321 (1945); In re Vanicek's Estate, 145 Neb. 531, 17 N.W.2d 477 (1945); In re Chapple's Es-
tate, 332 Pa. 168, 2 A.2d 719, 121 A.L.R. 422 (1938).
n2 Halliday v. Halliday, 83 Idaho 524, 366 P.2d 130 (1961); McBride v. Mercantile-Commerce Bank & Trust Co., 330 Mo. 259, 48 S.W.2d
922 (1932).
The evidence was insufficient to establish the existence of an oral contract between a father and his son under which the son would receive
the father's ranch upon the father's death; the evidence established that the son had an expectation of inheriting the ranch after the deaths of
his parents, but did not establish definite contract terms, such as the price of the ranch, how much equity the son would have to build in order
to complete the contract, and the time frame in which the contract would be fully performed. Fowler v. Fowler, 933 P.2d 502 (Wyo. 1997).
n3 Bankers' Trust Co. v. Bank of Rockville Center Trust Co., 114 N.J. Eq. 391, 168 A. 733, 89 A.L.R. 697 (Ct. Err. & App. 1933).
n4 In re Tallarico's Estate, 425 Pa. 280, 228 A.2d 736 (1967).
n5 Ivey v. Stanley, 272 Ga. 180, 526 S.E.2d 331 (2000).
n6 Ivey v. Stanley, 272 Ga. 180, 526 S.E.2d 331 (2000).

Page 202
n7 Bankers' Trust Co. v. Bank of Rockville Center Trust Co., 114 N.J. Eq. 391, 168 A. 733, 89 A.L.R. 697 (Ct. Err. & App. 1933).
n8 Festinger v. Kantor, 272 Ark. 411, 616 S.W.2d 455 (1981); Morgan v. Wright, 156 Colo. 411, 399 P.2d 788 (1965); Fister v. Fister, 122
Colo. 432, 222 P.2d 620 (1950); O'Donnell v. O'Donnell, 303 Ill. 31, 135 N.E. 28 (1922); Matter of Guzak's Estate, 69 Ill. App. 3d 552, 26
Ill. Dec. 716, 388 N.E.2d 431 (1st Dist. 1979); Detra v. Bartoletti, 150 Mont. 210, 433 P.2d 485 (1967); Reed v. Reed, 261 Or. 281, 493 P.2d
728 (1972); In re Chapple's Estate, 332 Pa. 168, 2 A.2d 719, 121 A.L.R. 422 (1938); Wakefield v. Wakefield, 59 Wash. 2d 550, 368 P.2d
909 (1962); Bankers' Trust Co. v. Bank of Rockville Center Trust Co., 114 N.J. Eq. 391, 168 A. 733, 89 A.L.R. 697 (Ct. Err. & App. 1933).
n9 Kohr v. Kohr, 271 Pa. Super. 321, 413 A.2d 687 (1979).
n10 Van Dreal v. Van Dreal, 214 F.2d 715 (10th Cir. 1954); Fister v. Fister, 122 Colo. 432, 222 P.2d 620 (1950); Hall v. Barrett, 126
S.W.2d 1045 (Tex. Civ. App. Fort Worth 1939); Wakefield v. Wakefield, 59 Wash. 2d 550, 368 P.2d 909 (1962); Bankers' Trust Co. v.
Bank of Rockville Center Trust Co., 114 N.J. Eq. 391, 168 A. 733, 89 A.L.R. 697 (Ct. Err. & App. 1933).
n11 Matter of Guzak's Estate, 69 Ill. App. 3d 552, 26 Ill. Dec. 716, 388 N.E.2d 431 (1st Dist. 1979).
SUPPLEMENT:
Cases
The $ 170,800 transfer of money from debtor to debtor's son was a loan, not a gift, in action to obtain garnishment to
collect on a wrongful death judgment owed by debtor; debtor had at least three opportunities to describe the transfer as a
gift, but he never did so, and debtor's testimony indicated that his son had an obligation to repay him the money. Dob-
son v. Vick, 27 So. 3d 469 (Ala. 2009).
Transfers of property or money from parent to child are presumptively gifts. In re Estate of Dimond, 2008 SD 131, 759
N.W.2d 534 (S.D. 2008).

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Parent and Child

§ 93 Transfer by parent to child
The relation of parent and child raises no presumption of undue influence in a gift from the parent to the child, and the
burden is on the person attacking such a gift to show its invalidity. n1 This rule is applicable even though the child
thereby receives a larger share of the parent's estate than the other children. n2 It has even been suggested that there is a
presumption in such a case against undue influence, upon the ground that ordinarily the parent, rather than the child, is
the dominant party. n3
The inquiry in most jurisdictions is not solely whether the parent had competent independent advice, but whether on all
the evidence it reasonably appears that the beneficial act proceeded from the free volition of the parent without imposi-
tion or coercion on the part of the beneficiary. n4
FOOTNOTES:
n1 Dockery v. Hamner, 281 Ala. 343, 202 So. 2d 550 (1967); Amado v. Aguirre, 63 Ariz. 213, 161 P.2d 117, 160 A.L.R. 1126 (1945);
Tompkins v. Tompkins, 257 Ill. 557, 100 N.E. 965 (1913); Kunz v. Kunz, 255 Iowa 1087, 125 N.W.2d 226 (1963); Salvner v. Salvner, 349
Mich. 375, 84 N.W.2d 871 (1957); Bonsal v. Randall, 192 Mo. 525, 91 S.W. 475 (1905); Weitz v. Moulden, 109 Okla. 119, 234 P. 583
(1925); Pember v. Burton, 82 Vt. 12, 71 A. 812 (1909); Soper v. Cisco, 85 N.J. Eq. 165, 95 A. 1016 (Ct. Err. & App. 1915).
n2 Blochowitz v. Blochowitz, 122 Neb. 385, 240 N.W. 586, 82 A.L.R. 949 (1932).
n3 McLeod v. McLeod, 145 Ala. 269, 40 So. 414 (1906).
n4 Tompkins v. Tompkins, 257 Ill. 557, 100 N.E. 965 (1913); Pember v. Burton, 82 Vt. 12, 71 A. 812 (1909); James v. Aller, 68 N.J. Eq.
666, 62 A. 427 (Ct. Err. & App. 1905).

Unexplained gratuitous transfer of property from one relative to another as raising presumption of gift, 94 A.L.R. 3d
608.
Page 204
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Parent and Child

§ 94 Circumstances showing fiduciary relationship
Undue influence is not to be presumed, in case of conveyance by a parent to a child, from the mere relationship of par-
ent and child. n1
Where facts are shown, other than the mere relation of parent and child, establishing between the parties a confidential
relation in which the child is the dominant party, a conveyance from the parent to the child is presumed to be tainted
with undue influence, and the burden is upon the child to show the bona fides of the transaction. n2 In such case, the
child has the burden of repelling the presumption of undue influence by clear and convincing proof that he acted in
good faith and took no advantage of his parent. n3 However, the burden of proof that the donor was dominated by the
donee, or that a fiduciary relationship existed between them, rests on the one attacking the gift. n4
Where, between the parent and the child, there is a relation of trust and confidence in business affairs, it is generally
agreed that this raises a presumption against the validity of a gift from the parent to the child, n5 although there are some
cases in which the courts have doubted or failed to admit the existence of a presumption even under such circumstances.
n6
Normally, when all parties are in good health and vigorous physically and mentally, the parent is considered the domi-
nant personality, but this assumption disappears when the parent has become old and feeble, in bad health, or weak
mentally. n7 Accordingly, the confidential relation necessary to raise a presumption of the invalidity of a gift from a par-
ent to his child is sometimes held to exist when the parent is old and feeble, and leans or depends upon the child, or is
largely under the care and protection of the child. n8 Most cases of this kind turn on the exercise of actual undue influ-
ence, rather than on any presumption of invalidity. n9 In fact, it has been expressly denied that the age or feebleness of
the parent, of itself, is sufficient to raise such a presumption. n10
Feebleness and old age, coupled with a relation of trust and confidence in business affairs, are together sufficient to
raise a presumption of undue influence. n11 The same is true where, in addition to old age and infirmity, it is shown that
the gift is an improvident one. n12 However, no presumption of undue influence arises from the fact that the aged parent
lives with the child, n13 or from the fact that the gift was made at the solicitation of the child. n14
FOOTNOTES:
n1 § 88.
n2 Hensan v. Cooksey, 237 Ill. 620, 86 N.E. 1107 (1908); Smith v. Smith, 84 Kan. 242, 114 P. 245 (1911); Weitz v. Moulden, 109 Okla.
119, 234 P. 583 (1925); Gilliam v. Schoen, 176 Or. 356, 157 P.2d 682 (1945); Dombrowski v. Tomasino, 27 Wis. 2d 378, 134 N.W.2d 420
(1965); Baldwin v. Birchby, 346 P.2d 278 (Wyo. 1959); Soper v. Cisco, 85 N.J. Eq. 165, 95 A. 1016 (Ct. Err. & App. 1915).
n3 Pitts v. Hawkins, 264 Ala. 428, 87 So. 2d 835 (1956).

Page 205
Evidence of son that $ 1,500 paid to him by his aged, infirm mother, making her home with him, was for care and support and that crops
were turned over to son for same purpose serves to rebut presumption. In re Chamberlain's Estate, 109 P.2d 449 (Cal. App. 3d Dist. 1941),
reh'g granted, opinion not citable, (Mar. 11, 1941) and opinion vacated, 44 Cal. App. 2d 193, 112 P.2d 53 (3d Dist. 1941).
n4 Amado v. Aguirre, 63 Ariz. 213, 161 P.2d 117, 160 A.L.R. 1126 (1945).
n5 Hensan v. Cooksey, 237 Ill. 620, 86 N.E. 1107 (1908); McDonald v. Miller, 73 N.D. 474, 16 N.W.2d 270, 156 A.L.R. 1328 (1944).
n6 Sawyer v. White, 122 F. 223 (C.C.A. 8th Cir. 1903); Mooney v. Mooney, 80 Conn. 446, 68 A. 985 (1908).
n7 Burns v. Nemo, 252 Iowa 306, 105 N.W.2d 217 (1960).
n8 Smith v. Smith, 84 Kan. 242, 114 P. 245 (1911).
n9 Hensan v. Cooksey, 237 Ill. 620, 86 N.E. 1107 (1908).
n10 Bonsal v. Randall, 192 Mo. 525, 91 S.W. 475 (1905); Soper v. Cisco, 85 N.J. Eq. 165, 95 A. 1016 (Ct. Err. & App. 1915).
n11 Tedder v. Tedder, 108 S.C. 271, 94 S.E. 19, 2 A.L.R. 438 (1917); Curtis v. Curtis, 85 W. Va. 37, 100 S.E. 856, 8 A.L.R. 1091 (1919).
n12 Soper v. Cisco, 85 N.J. Eq. 165, 95 A. 1016 (Ct. Err. & App. 1915).
n13 Hawthorne v. Jenkins, 182 Ala. 255, 62 So. 505 (1913) (overruled in part on other grounds by, Gibbons v. Gibbons, 205 Ala. 636, 88
So. 833 (1921)).
n14 Rickman v. Meier, 213 Ill. 507, 72 N.E. 1121 (1904); Teter v. Teter, 59 W. Va. 449, 53 S.E. 779 (1906).

Page 206
96 of 145 DOCUMENTS

Parent and Child

§ 95 Transfer by child to parent
The mere fact that a conveyance is from a child to a parent does not render the conveyance prima facie void. n1 How-
ever, in the case of a conveyance from a child to a parent, especially if it is a gift, the mere existence of the relationship
raises a presumption of undue influence which, unless repelled by the facts and circumstances surrounding the transac-
tion, will warrant a court of equity in setting it aside. n2 However, there is also authority that no presumption of fraud or
undue influence arises from the mere fact that the conveyance was from a child to a parent, but rather that such a con-
veyance is presumptively valid. n3
In those jurisdictions where the law raises a presumption against the validity of a conveyance from a child to a parent,
the parent claiming the benefit of the contract must prove its fairness, and that it is untainted with undue exercise of the
influence arising from the relation of the parties. n4 In jurisdictions where a conveyance from a child to a parent is re-
garded as prima facie valid, the burden of proof is upon one seeking to set it aside. n5
There may also be a presumption against the validity of a conveyance from a child to a parent where the child is incom-
petent or mentally deficient. n6
FOOTNOTES:
n1 Towson v. Moore, 173 U.S. 17, 19 S. Ct. 332, 43 L. Ed. 597 (1899); Williams v. Canary, 249 F. 344, 11 A.L.R. 726 (C.C.A. 8th Cir.
1918).
n2 Parker v. Parker, 1919 OK 144, 75 Okla. 234, 182 P. 697, 11 A.L.R. 720 (1919).
n3 Towson v. Moore, 173 U.S. 17, 19 S. Ct. 332, 43 L. Ed. 597 (1899); Pember v. Burton, 82 Vt. 12, 71 A. 812 (1909).
n4 Hays v. Feather, 244 Ill. 172, 91 N.E. 97 (1910); Berkmeyer v. Kellerman, 32 Ohio St. 239, 1877 WL 114 (1877); Parker v. Parker, 1919
OK 144, 75 Okla. 234, 182 P. 697, 11 A.L.R. 720 (1919); Albert v. Haeberly, 68 N.J. Eq. 664, 61 A. 380 (Ct. Err. & App. 1905).
n5 Williams v. Canary, 249 F. 344, 11 A.L.R. 726 (C.C.A. 8th Cir. 1918).
n6 Hays v. Feather, 244 Ill. 172, 91 N.E. 97 (1910); Parker v. Parker, 1919 OK 144, 75 Okla. 234, 182 P. 697, 11 A.L.R. 720 (1919).

Page 207

Unexplained gratuitous transfer of property from one relative to another as raising presumption of gift, 94 A.L.R. 3d
608.
Page 208
97 of 145 DOCUMENTS

Parent and Child

VII. Liability of Parent for Conduct of Child; Offenses of Child Against Parents
§ 96 Generally
At common law the mere fact of paternity does not make a parent liable for the torts of his minor child. n1 A fortiori is
this true in the case of an adult child. n2 However, a limited parental responsibility for some torts of minor children is
now imposed by statute in most states. n3
Many cases involving an action against a parent of a minor child for injury or damage intentionally inflicted by the child
have taken the position that the parent is liable where the parent's negligence made it possible for the child to cause the
injury complained of. n4 A parent will not be held liable for negligence when her child inflicts injury on another unless
the child's conduct was foreseeable. n5
The question whether a parent is liable for the torts of his minor child is governed by the law of the state in which the
tort was committed. n6 On the other hand it has also been held that a statute of the jurisdiction in which the tort was com-
mitted, imposing liability on the parent, will not be enforced when it is in direct conflict with the statutes and general
policy of the law of the forum denying such liability. n7
FOOTNOTES:
n1 Winfrey v. Austin, 260 Ala. 439, 71 So. 2d 15 (1954); Parsons v. Smithey, 109 Ariz. 49, 504 P.2d 1272, 54 A.L.R.3d 964 (1973); Emery
v. Emery, 45 Cal. 2d 421, 289 P.2d 218 (1955); Horton v. Reaves, 186 Colo. 149, 526 P.2d 304 (1974); LaBonte v. Federal Mut. Ins. Co.,
159 Conn. 252, 268 A.2d 663 (1970); Smith v. Callahan, 34 Del. 129, 144 A. 46, 64 A.L.R. 830 (1928); Spector v. Neer, 262 So. 2d 689
(Fla. Dist. Ct. App. 3d Dist. 1972); Corley v. Lewless, 227 Ga. 745, 182 S.E.2d 766 (1971); Gordon v. Rose, 54 Idaho 502, 33 P.2d 351, 93
A.L.R. 984 (1934); Arkin v. Page, 287 Ill. 420, 123 N.E. 30, 5 A.L.R. 216 (1919); Broadstreet v. Hall, 168 Ind. 192, 80 N.E. 145 (1907);
Sultzbach v. Smith, 174 Iowa 704, 156 N.W. 673 (1916); Zeeb v. Bahnmaier, 103 Kan. 599, 176 P. 326, 2 A.L.R. 883 (1918); Kerrigan v.
Carroll, 168 Md. 682, 179 A. 53 (1935); McGowan v. Longwood, 242 Mass. 337, 136 N.E. 72, 23 A.L.R. 617 (1922); Republic Vanguard
Ins. Co. v. Buehl, 295 Minn. 327, 204 N.W.2d 426 (1973); Tatum v. Lance, 238 Miss. 156, 117 So. 2d 795 (1960); Hays v. Hogan, 273 Mo.
1, 200 S.W. 286 (1917); Ross v. Souter, 81 N.M. 181, 464 P.2d 911 (Ct. App. 1970); Napiearlski v. Pickering, 278 A.D. 456, 106 N.Y.S.2d
28 (4th Dep't 1951); Anderson v. Butler, 284 N.C. 723, 202 S.E.2d 585 (1974); Peterson v. Rude, 146 N.W.2d 555 (N.D. 1966); Ringhaver
v. Schlueter, 23 Ohio App. 355, 5 Ohio L. Abs. 66, 155 N.E. 242 (8th Dist. Cuyahoga County 1927); Stumpf v. Montgomery, 1924 OK 360,
101 Okla. 257, 226 P. 65 (1924); Condel v. Savo, 350 Pa. 350, 39 A.2d 51, 155 A.L.R. 81 (1944); Fanton v. Byrum, 26 S.D. 366, 128 N.W.
325 (1910); Bocock v. Rose, 213 Tenn. 195, 373 S.W.2d 441 (1963); Giguere v. Rosselot, 110 Vt. 173, 3 A.2d 538 (1939); Coffman v. Mc-
Fadden, 68 Wash. 2d 954, 416 P.2d 99 (1966); Mazzocchi v. Seay, 126 W. Va. 490, 29 S.E.2d 12 (1944); Bankert by Habush v. Thresher-
men's Mut. Ins. Co., 110 Wis. 2d 469, 329 N.W.2d 150 (1983).
Under the common law, absent proof of agency, parents are not vicariously liable for the wrongful acts of their minor children. In re John
M., 129 Md. App. 165, 741 A.2d 503 (1999).
As to a child's liability for his own torts, see 42 Am. Jur. 2d, Infants §§ 127-130, 133.
As to liability where the tortious act is done by the child as the employee or agent of the parent, see § 101.
As to liability where the act is consented to or ratified by the parent, see § 102.
Page 209
n2 Zeeb v. Bahnmaier, 103 Kan. 599, 176 P. 326, 2 A.L.R. 883 (1918); Shaw v. Hopkins, 338 So. 2d 961 (La. Ct. App. 4th Cir. 1976); Hays
v. Hogan, 273 Mo. 1, 200 S.W. 286 (1917).
As to liability for the tort of an insane or mentally deficient adult child, see § 100.
n3 § 103.
n4 Ryley v. Lafferty, 45 F.2d 641 (D. Idaho 1930); Bieker v. Owens, 234 Ark. 97, 350 S.W.2d 522 (1961); Hoff v. Vacaville Unified
School Dist., 19 Cal. 4th 925, 80 Cal. Rptr. 2d 811, 968 P.2d 522, 131 Ed. Law Rep. 513 (1998); Seabrook v. Taylor, 199 So. 2d 315 (Fla.
Dist. Ct. App. 4th Dist. 1967); Corley v. Lewless, 227 Ga. 745, 182 S.E.2d 766 (1971); Capps v. Carpenter, 129 Kan. 462, 283 P. 655
(1930); Haunert v. Speier, 214 Ky. 46, 281 S.W. 998 (1926); Dortman v. Lester, 380 Mich. 80, 155 N.W.2d 846 (1968); Republic Vanguard
Ins. Co. v. Buehl, 295 Minn. 327, 204 N.W.2d 426 (1973); Tatum v. Lance, 238 Miss. 156, 117 So. 2d 795 (1960); National Dairy Products
Corp. v. Freschi, 393 S.W.2d 48 (Mo. Ct. App. 1965); Linder v. Bidner, 50 Misc. 2d 320, 270 N.Y.S.2d 427 (Sup 1966); Langford v. Shu,
258 N.C. 135, 128 S.E.2d 210 (1962); Peterson v. Rude, 146 N.W.2d 555 (N.D. 1966); Condel v. Savo, 350 Pa. 350, 39 A.2d 51, 155 A.L.R.
81 (1944); Bocock v. Rose, 213 Tenn. 195, 373 S.W.2d 441 (1963); Giguere v. Rosselot, 110 Vt. 173, 3 A.2d 538 (1939).
Related References:
Dangerous children and the regulated family: The shifting focus of parental responsibility laws. 73 NYU LR 2:667
(1999).
n5 Darby v. California, Dept. of Social Service, 1 Fed. Appx. 688 (9th Cir. 2001), amended on denial of reh'g, (Feb. 2, 2001) (applying Cal-
ifornia law).
n6 Watkins v. Cupit, 130 So. 2d 720 (La. Ct. App. 1st Cir. 1961).
n7 Hudson v. Von Hamm, 85 Cal. App. 323, 259 P. 374 (1st Dist. 1927).
REFERENCE: West's Key Number Digest, Parent and Child [westkey]13.5

Liability of parent for injury caused by child riding a bicycle, 70 A.L.R. 3d 611.
Parents' liability for injury or damage intentionally inflicted by minor child, 54 A.L.R. 3d 974.
Page 210
98 of 145 DOCUMENTS

Parent and Child

§ 97 Where instrumentality is entrusted or accessible to child
A parent may be liable where he entrusts his child with an instrumentality which, because of the youth or inexperience
of the child, may become a source of danger to others. n1 A parent owes a duty to protect third parties from harm that is
clearly foreseeable from the child's improvident use or operation of a dangerous instrument, where such use is found to
be subject to the parent's control. n2 Liability may even be predicated under some circumstances upon the act of the par-
ent in merely leaving the dangerous instrumentality accessible to the child, n3 though there is authority to the contrary. n4
Where an instrumentality is entrusted or accessible to a child, the issue is whether the facts in a particular case impose
upon a parent a duty to anticipate injury to another through the child's use of that instrumentality. n5 Whether a particular
object qualifies as a dangerous instrument, negligent entrustment of which to a minor child by his or her parent may
support recovery against the parent for injuries caused by the object, depends on the nature of the instrument and the
facts pertaining to its use, including the particular attributes of the minor using or operating the item; while this is often
a fact-based determination, items that are commonly used by children, of suitable age in a manner consistent with their
intended use, may not, as a matter of law, be classified as dangerous instruments. n6
FOOTNOTES:
n1 Jarboe v. Edwards, 26 Conn. Supp. 350, 223 A.2d 402 (Super. Ct. 1966); Spector v. Neer, 262 So. 2d 689 (Fla. Dist. Ct. App. 3d Dist.
1972); Corley v. Lewless, 227 Ga. 745, 182 S.E.2d 766 (1971); Kahlenberg v. Goldstein, 290 Md. 477, 431 A.2d 76, 22 A.L.R.4th 719
(1981); May v. Goulding, 365 Mich. 143, 111 N.W.2d 862 (1961); Republic Vanguard Ins. Co. v. Buehl, 295 Minn. 327, 204 N.W.2d 426
(1973); Dinger v. Burnham, 360 Mo. 465, 228 S.W.2d 696 (1950); Rios v. Smith, 95 N.Y.2d 647, 722 N.Y.S.2d 220, 744 N.E.2d 1156
(2001); Anderson v. Butler, 284 N.C. 723, 202 S.E.2d 585 (1974).
The owner of a fishing vessel was not liable under the doctrine of family purpose when the vessel's skiff, operated by the owner's son with-
out his permission, collided with another skiff, where the vessel was not simply a family activity, but part of a commercial enterprise, and
the son was operating the skiff for a personal, recreational purpose. Churchill v. F/V Fjord, 892 F.2d 763 (9th Cir. 1988) (applying Alaska
law).
A bow and arrow used by an 11-year-old child is not a dangerous instrumentality. White v. Page, 61 Ohio L. Abs. 498, 105 N.E.2d 652 (Ct.
App. 2d Dist. Franklin County 1950).
As to a parent's liability for entrusting a vehicle to a minor child, see 8 Am. Jur. 2d, Automobiles and Highway Traffic § 701.
n2 Rios v. Smith, 95 N.Y.2d 647, 722 N.Y.S.2d 220, 744 N.E.2d 1156 (2001).
n3 Mazzilli v. Selger, 13 N.J. 296, 99 A.2d 417 (1953); Reida v. Lund, 18 Cal. App. 3d 698, 96 Cal. Rptr. 102 (2d Dist. 1971); Seabrook v.
Taylor, 199 So. 2d 315 (Fla. Dist. Ct. App. 4th Dist. 1967); Aquaviva v. Piazzolla, 117 Misc. 2d 581, 458 N.Y.S.2d 979 (Sup 1982).
n4 Figone v. Guisti, 43 Cal. App. 606, 185 P. 694 (1st Dist. 1919); Tatum v. Lance, 238 Miss. 156, 117 So. 2d 795 (1960); Lopez v. Chewi-
wie, 51 N.M. 421, 186 P.2d 512 (1947); Frellesen v. Colburn, 156 Misc. 254, 281 N.Y.S. 471 (County Ct. 1935).
Page 211
n5 Corley v. Lewless, 227 Ga. 745, 182 S.E.2d 766 (1971); Hatch v. O'Neill, 133 Ga. App. 624, 212 S.E.2d 11 (1974).

Proof of Negligent Sale, Entrustment, or Storage of Firearm, 37 Am. Jur. Proof of Facts 3d 1 § 20 (negligent entrust-
ment to a child).
Page 212
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Parent and Child

§ 98 Gun
Where a parent permits an inexperienced or irresponsible infant to have a gun, or leaves a gun in a place where he
should have foreseen that it would come into the hands of such a child, prima facie negligence is established. n1 How-
ever, some courts take the view that merely permitting a minor to have a gun, or access thereto, does not constitute neg-
ligence upon which liability for injuries inflicted by the minor with the gun can be predicated. n2 Permitting a child to
have a gun in violation of an ordinance is negligence per se. n3 Evidence that the parent left a loaded gun in a place
which he knew or should have known to be accessible to a child too immature or indiscreet to exercise the required care
in the control of such an instrument raises a jury question as to the parent's responsibility for injuries inflicted by the
child. n4 The same may be true with respect to an unloaded gun, if ammunition therefor was also accessible to the child. n5
There is some judicial disagreement as to whether an air gun is a dangerous instrumentality, with some cases holding an
air gun is a dangerous instrumentality n6 and others holding it not to be. n7 However, even if such a gun is not inherently
dangerous, the parent may still be liable if he knows that the child's immaturity makes it dangerous. n8
Even if a parent is negligent in permitting a child to have a gun, or in leaving one accessible to him, he will not be liable
unless his negligence is a proximate cause of the plaintiff's injury. n9 In some cases where the child's act was a willful
crime, it has been regarded as an intervening cause which the parent was not bound to foresee. n10
FOOTNOTES:
n1 Dickens v. Barnham, 69 Colo. 349, 194 P. 356, 12 A.L.R. 809 (1920); Meers v. McDowell, 110 Ky. 926, 23 Ky. L. Rptr. 461, 62 S.W.
1013 (1901); Johnson v. Glidden, 11 S.D. 237, 76 N.W. 933 (1898); Giguere v. Rosselot, 110 Vt. 173, 3 A.2d 538 (1939).
n2 Wood v. O'Neil, 90 Conn. 497, 97 A. 753 (1916); Lopez v. Chewiwie, 51 N.M. 421, 186 P.2d 512 (1947); Conley v. Long, 21 Misc. 2d
759, 192 N.Y.S.2d 203 (Sup 1959); Lane v. Chatham, 251 N.C. 400, 111 S.E.2d 598 (1959).
n3 Sullivan v. O'Ryan, 206 Misc. 212, 132 N.Y.S.2d 211 (Sup 1954); Schatter v. Bergen, 185 Wash. 375, 55 P.2d 344 (1936).
n4 Olson v. Hemsley, 48 N.D. 779, 187 N.W. 147 (1922); Hart v. Lewis, 1940 OK 273, 187 Okla. 394, 103 P.2d 65 (1940); Thomas v. In-
man, 282 Or. 279, 578 P.2d 399 (1978); Salisbury v. Crudale, 41 R.I. 33, 102 A. 731 (1918); Howell v. Hairston, 261 S.C. 292, 199 S.E.2d
766, 65 A.L.R.3d 925 (1973); Prater v. Burns, 525 S.W.2d 846 (Tenn. Ct. App. 1975).
n5 Mazzilli v. Selger, 13 N.J. 296, 99 A.2d 417 (1953); Dickens v. Barnham, 69 Colo. 349, 194 P. 356, 12 A.L.R. 809 (1920).
n6 Tatum v. Lance, 238 Miss. 156, 117 So. 2d 795 (1960).
n7 Capps v. Carpenter, 129 Kan. 462, 283 P. 655 (1930); Lane v. Chatham, 251 N.C. 400, 111 S.E.2d 598 (1959); Peterson v. Rude, 146
N.W.2d 555 (N.D. 1966); Highsaw v. Creech, 17 Tenn. App. 573, 69 S.W.2d 249 (1933).
Page 213
n8 Mazzocchi v. Seay, 126 W. Va. 490, 29 S.E.2d 12 (1944).
n9 Williams v. Youngblood, 152 So. 2d 530 (Fla. Dist. Ct. App. 1st Dist. 1963).
n10 Bell v. Adams, 111 Ga. App. 819, 143 S.E.2d 413 (1965); Skelton v. Gambrell, 80 Ga. App. 880, 57 S.E.2d 694 (1950).

Parents' liability for injury or damage intentionally inflicted by minor child, 54 A.L.R. 3d 974 § 11[a].
Liability of person permitting child to have gun, or leaving gun accessible to child, for injury inflicted by the latter, 68
A.L.R. 2d 782.
Complaint, petition, or declaration -- Injury inflicted by minor child using air rifle -- Negligence of parents in entrusting
air rifle to minor child. 19 Am. Jur. Pleading and Practice Forms, Parent and Child § 160.
Page 214
100 of 145 DOCUMENTS

Parent and Child

§ 99 Failure to control child
Generally, a parent may be liable for the consequences of failure to exercise the power of control which he has over his
children, where he knows, or in the exercise of due care should have known, that injury to another is a probable conse-
quence. n1 However, to render a parent responsible, his negligence in the exercise of parental supervision must have
some specific relation to the act complained of. n2 Also, the injury committed by the child must be one which ought rea-
sonably to have been foreseen as likely to flow from such negligent act. n3 There is no blanket rule that imposes civil lia-
bility upon parents who fail to control their minor child's criminal behavior. n4 A parent is not liable for mere lack of su-
pervision where the child has shown no previous propensity for the type of act which caused the injury. n5 Without spe-
cific evidence, based on prior acts, of a propensity to cause the actual harm that occurred, a plaintiff may not rely on
speculation or unsupported inferences to prove that because a child may exhibit certain propensities, that child also pos-
sesses other propensities. n6 A child's deed which is unrelated to any of his previous acts will not render the parent liable,
though an act which climaxes a course of conduct involving similar acts may do so. n7
The parent will incur liability for his minor child's intentional acts of violence or damage to persons or property if,
knowing of the child's vicious or destructive tendencies or acts, he fails to exercise reasonable measures to restrain or
discipline the child. n8 However, mere knowledge by the parents of their child's mischievous and reckless disposition is
not enough to make them liable. n9 Knowledge of a child's dangerous habits and an ability to control the child are prereq-
uisites to the imposition of negligence liability on parents regarding acts of the child; only the manifestation of specific
dangerous tendencies triggers a parental duty to exercise reasonable care to control the minor child to prevent harm to
third persons. n10
FOOTNOTES:
n1 Mazzilli v. Selger, 13 N.J. 296, 99 A.2d 417 (1953); Parsons v. Smithey, 109 Ariz. 49, 504 P.2d 1272, 54 A.L.R.3d 964 (1973); Bieker
v. Owens, 234 Ark. 97, 350 S.W.2d 522 (1961); Hoff v. Vacaville Unified School Dist., 19 Cal. 4th 925, 80 Cal. Rptr. 2d 811, 968 P.2d 522,
131 Ed. Law Rep. 513 (1998); Horton v. Reaves, 186 Colo. 149, 526 P.2d 304 (1974); Jarboe v. Edwards, 26 Conn. Supp. 350, 223 A.2d
402 (Super. Ct. 1966); Spector v. Neer, 262 So. 2d 689 (Fla. Dist. Ct. App. 3d Dist. 1972); Van Camp v. McAfoos, 261 Iowa 1124, 156
N.W.2d 878 (1968); Mitchell v. Wiltfong, 4 Kan. App. 2d 231, 604 P.2d 79 (1979); Dortman v. Lester, 380 Mich. 80, 155 N.W.2d 846
(1968); Crisafulli v. Bass, 2001 MT 316, 38 P.3d 842 (Mont. 2001); Moore v. Crumpton, 306 N.C. 618, 295 S.E.2d 436 (1982); Condel v.
Savo, 350 Pa. 350, 39 A.2d 51, 155 A.L.R. 81 (1944); Bocock v. Rose, 213 Tenn. 195, 373 S.W.2d 441 (1963); Statz v. Pohl, 266 Wis. 23,
63 N.W.2d 711 (1954).
A parent is under a duty to exercise reasonable care so as to control his minor child as to prevent it from intentionally harming others or from
so conducting itself as to create an unreasonable risk of bodily harm to them, if the parent (a) knows or has reason to know that he has the
ability to control his child, and (b) knows or should know of the necessity and opportunity for exercising such control. Restatement Second,
Torts § 316.
Related References:
Chapin, Out of control? The uses and abuses of parental liability laws to control juvenile delinquency in the United
States, 37 Santa Clara L. Rev. 621 (1997).
Page 215
n2 Athridge v. Rivas, 141 F.3d 357, 40 Fed. R. Serv. 2d 636 (D.C. Cir. 1998); Bateman v. Crim, 34 A.2d 257 (Mun. Ct. App. D.C. 1943);
Muma v. Brown, 378 Mich. 637, 148 N.W.2d 760 (1967); Moore v. Crumpton, 306 N.C. 618, 295 S.E.2d 436 (1982).
n3 Condel v. Savo, 350 Pa. 350, 39 A.2d 51, 155 A.L.R. 81 (1944).
n4 Thompson ex rel. Thompson v. Skate America, Inc., 261 Va. 121, 540 S.E.2d 123 (2001).
n5 Scherer v. Westmoreland Sanctuary, Inc., 95 A.D.2d 803, 463 N.Y.S.2d 522 (2d Dep't 1983); Spector v. Neer, 262 So. 2d 689 (Fla. Dist.
Ct. App. 3d Dist. 1972); National Dairy Products Corp. v. Freschi, 393 S.W.2d 48 (Mo. Ct. App. 1965).
n6 Langlois v. Pomerleau, 143 N.H. 456, 726 A.2d 1285 (1999).
n7 Parsons v. Smithey, 109 Ariz. 49, 504 P.2d 1272, 54 A.L.R.3d 964 (1973); Gissen v. Goodwill, 80 So. 2d 701 (Fla. 1955).
n8 Guzy v. Gandel, 95 N.J. Super. 34, 229 A.2d 809 (App. Div. 1967); Parsons v. Smithey, 109 Ariz. 49, 504 P.2d 1272, 54 A.L.R.3d 964
(1973); Bieker v. Owens, 234 Ark. 97, 350 S.W.2d 522 (1961); Ellis v. D'Angelo, 116 Cal. App. 2d 310, 253 P.2d 675 (1st Dist. 1953); Hor-
ton v. Reaves, 186 Colo. 149, 526 P.2d 304 (1974); Jarboe v. Edwards, 26 Conn. Supp. 350, 223 A.2d 402 (Super. Ct. 1966); Mancino v.
Webb, 274 A.2d 711 (Del. Super. Ct. 1971); Gissen v. Goodwill, 80 So. 2d 701 (Fla. 1955); Scarboro v. Lauk, 133 Ga. App. 359, 210 S.E.2d
848 (1974); Mitchell v. Wiltfong, 4 Kan. App. 2d 231, 604 P.2d 79 (1979); Sabatinelli v. Butler, 363 Mass. 565, 296 N.E.2d 190 (1973);
May v. Goulding, 365 Mich. 143, 111 N.W.2d 862 (1961); National Dairy Products Corp. v. Freschi, 393 S.W.2d 48 (Mo. Ct. App. 1965);
Ross v. Souter, 81 N.M. 181, 464 P.2d 911 (Ct. App. 1970); Linder v. Bidner, 50 Misc. 2d 320, 270 N.Y.S.2d 427 (Sup 1966); Lane v.
Chatham, 251 N.C. 400, 111 S.E.2d 598 (1959); Landis v. Condon, 95 Ohio App. 28, 52 Ohio Op. 371, 66 Ohio L. Abs. 193, 116 N.E.2d
602 (2d Dist. Montgomery County 1952); Condel v. Savo, 350 Pa. 350, 39 A.2d 51, 155 A.L.R. 81 (1944); Bocock v. Rose, 213 Tenn. 195,
373 S.W.2d 441 (1963).
n9 Bieker v. Owens, 234 Ark. 97, 350 S.W.2d 522 (1961); Condel v. Savo, 350 Pa. 350, 39 A.2d 51, 155 A.L.R. 81 (1944); Bocock v.
Rose, 213 Tenn. 195, 373 S.W.2d 441 (1963).
n10 Hoff v. Vacaville Unified School Dist., 19 Cal. 4th 925, 80 Cal. Rptr. 2d 811, 968 P.2d 522, 131 Ed. Law Rep. 513 (1998).
To succeed on a negligent supervision claim against the parents of a mental patient who committed murder while a minor, the murder vic-
tim's estate was required to show that: (1) the parents were aware of specific instances of prior conduct sufficient to put them on notice that
the victim's murder was likely to occur; and (2) that the parents had an opportunity to control the patient. Norskog v. Pfiel, 197 Ill. 2d 60,
257 Ill. Dec. 899, 755 N.E.2d 1 (2001).
SUPPLEMENT:
Cases
Parental responsibility ordinance, which required parent to exercise reasonable control over children, imposed duty on
parents to exercise sufficient control over children so that they did not commit crime, and made failure to do so a mu-
nicipal infraction violation, did not violate substantive due process as overbroad on its face or in its application to
mother; mother did not claim that ordinance violated her First Amendment rights, and overbreadth doctrine was applica-
ble to laws infringing on a person's First Amendment rights. U.S.C.A. Const.Amends. 1, 14. Hensler v. City of Daven-
port, 790 N.W.2d 569 (Iowa 2010).
Although historically rooted in judicial reluctance to encourage adversarial litigation that could undermine peace and or-
der within families, the modern justification for parental immunity, which serves to bar tort claims brought against par-
ents by their unemancipated minor children, is stated in terms of preventing the disruption or distortion of parental deci-
sion-making within the wide sphere of reasonable discretion which is necessary to provide nurture, care, and discipline
for children that would otherwise result from the imposition of the negligence reasonably prudent person standard of
conduct and its attendant economic incentives and disincentives. Sepaugh v. LaGrone, 300 S.W.3d 328 (Tex. App.
Austin 2009), rule 53.7(f) motion granted, (Jan. 26, 2010).

Page 216

Parental failure to control child, 45 Am. Jur. Proof of Facts 2d 549.
Parent's failure to supervise children, 11 Am. Jur. Proof of Facts 2d 541.
Page 217

Parent and Child

§ 100 Tort of insane or mentally deficient child
The parent of an insane person, whether a minor or adult, is not, by virtue only of his relation as parent, liable for the in-
sane person's tort, but any liability attaching to him must be predicated on his negligence in permitting or making possi-
ble the commission of the tort. n1 The doctrine that a parent may be liable if, knowing of the danger, he furnishes or
leaves accessible to his child a dangerous instrumentality which the child uses to the injury of another applies with even
greater force where the child is mentally deficient, since in such case, the danger is much greater, and the negligence of
the parent more obvious. n2 However, in such case the parent's negligence may be a question for the jury. n3 The parent is
not liable if he did not know, and could not reasonably have known, of the possibility of any special danger from the
child's possession of the instrumentality in question. n4
FOOTNOTES:
n1 Whitesides v. Wheeler, 158 Ky. 121, 164 S.W. 335 (1914); Meers v. McDowell, 110 Ky. 926, 23 Ky. L. Rptr. 461, 62 S.W. 1013 (1901).
n2 Meers v. McDowell, 110 Ky. 926, 23 Ky. L. Rptr. 461, 62 S.W. 1013 (1901).
n3 May v. Goulding, 365 Mich. 143, 111 N.W.2d 862 (1961).
n4 Whitesides v. Wheeler, 158 Ky. 121, 164 S.W. 335 (1914).

Page 218

Parent and Child

§ 101 Liability of parent as employer or principal
A child may occupy the position of an employee or agent of its parent, and the parent may be liable for the child's acts
under the general principles governing the relation of employer and employee or principal and agent. n1
The relationship of parent and child does not give rise to any presumption that the child is the employee or agent of the
parent. n2 However, if it is shown that the child was using an instrumentality belonging to his parent in and about his par-
ent's business, it will be presumed, in the absence of evidence to the contrary, that the child was acting on the parent's
behalf and upon his directions. n3
The wrongful act must be performed by the minor child in pursuance of the business, incident, or undertaking autho-
rized by the parent, before the parent can be held liable. n4 The authority from the parent to the child to do the tortious
act may be express, or may arise by implication from all the attendant circumstances. Such authority may be found in
the actual presence of the parent, in express or implied directions, or in a precedent course of conduct. n5 As in other
cases, if the child, although in the general employ of his parent, had at the time wholly departed from the line of his em-
ployment, and was pursuing his own purposes, the parent is not liable. n6
FOOTNOTES:
n1 Southern American Fire Insurance Company v. Maxwell, 279 So. 2d 32 (Fla. 1973); Corley v. Lewless, 227 Ga. 745, 182 S.E.2d 766
(1971); Broadstreet v. Hall, 168 Ind. 192, 80 N.E. 145 (1907); Mirick v. Suchy, 74 Kan. 715, 87 P. 1141 (1906); Lanterman v. Wilson, 277
Md. 364, 354 A.2d 432 (1976); Dempsey v. Frazier, 119 Miss. 1, 80 So. 341 (1919); Littenberg v. McNamara, 136 N.Y.S.2d 178 (Sup
1954); Anderson v. Butler, 284 N.C. 723, 202 S.E.2d 585 (1974); Condel v. Savo, 350 Pa. 350, 39 A.2d 51, 155 A.L.R. 81 (1944); Trahan v.
Smith, 239 S.W. 345 (Tex. Civ. App. Beaumont 1922); Coffman v. McFadden, 68 Wash. 2d 954, 416 P.2d 99 (1966); Giese v. Montgomery
Ward, Inc., 111 Wis. 2d 392, 331 N.W.2d 585 (1983).
As to the agency of a child for a parent, see § 7.
n2 Erlick v. Heis, 193 Ala. 669, 69 So. 530 (1915).
n3 Giese v. Montgomery Ward, Inc., 111 Wis. 2d 392, 331 N.W.2d 585 (1983).
n4 Sultzbach v. Smith, 174 Iowa 704, 156 N.W. 673 (1916); Blair v. Broadwater, 121 Va. 301, 93 S.E. 632 (1917).
n5 Smith v. Jordan, 211 Mass. 269, 97 N.E. 761 (1912).
n6 Willner v. Silverman, 109 Md. 341, 71 A. 962 (1909); Blair v. Broadwater, 121 Va. 301, 93 S.E. 632 (1917).

Page 219
Liability of parent for injury caused by child riding a bicycle, 70 A.L.R. 3d 611 §§ 4, 5.
Parents' liability for injury or damage intentionally inflicted by minor child, 54 A.L.R. 3d 974 §§ 4, 5.
Page 220

Parent and Child

§ 102 When parent directs, consents to, or ratifies act of child
A parent may be liable for his child's torts where he has knowledge of the wrongdoing and consents to it, or where he
directs or sanctions it, n1 or approves and participates in it. n2 Since consent to the child's act may be implied as well as
express, the parent may be liable even though he had no actual knowledge of the particular tort. n3 A parent directing the
conduct of his child will be presumed to have intended only lawful acts, and not to have sanctioned the child's commis-
sion of criminal acts. n4
A parent may be liable for his child's tort where he subsequently approves or ratifies it. n5 Ratification is not shown by
proof of a mere offer by the parent to pay the damages, or to compromise an action brought against him. n6
FOOTNOTES:
n1 Katz v. Helbing, 205 Cal. 629, 271 P. 1062, 62 A.L.R. 825 (1928); Southern Am. Fire Ins. Co. v. Maxwell, 274 So. 2d 579, 70 A.L.R.3d
607 (Fla. Dist. Ct. App. 3d Dist. 1973), cert. dismissed, 279 So. 2d 32 (Fla. 1973); Littenberg v. McNamara, 136 N.Y.S.2d 178 (Sup 1954);
Trahan v. Smith, 239 S.W. 345 (Tex. Civ. App. Beaumont 1922); Hopkins v. Droppers, 184 Wis. 400, 198 N.W. 738, 36 A.L.R. 1156
(1924).
n2 Guilbeau v. Guilbeau, 326 So. 2d 654 (La. Ct. App. 3d Cir. 1976); Langford v. Shu, 258 N.C. 135, 128 S.E.2d 210 (1962).
n3 Jaquith v. Worden, 73 Wash. 349, 132 P. 33 (1913) (overruled on other grounds by, Blaak v. Davidson, 84 Wash. 2d 882, 529 P.2d 1048
(1975)).
n4 Bowen v. Mewborn, 218 N.C. 423, 11 S.E.2d 372 (1940).
n5 Ryley v. Lafferty, 45 F.2d 641 (D. Idaho 1930); Littenberg v. McNamara, 136 N.Y.S.2d 178 (Sup 1954); Langford v. Shu, 258 N.C. 135,
128 S.E.2d 210 (1962).
n6 Bateman v. Crim, 34 A.2d 257 (Mun. Ct. App. D.C. 1943).

Parents' liability for injury or damage intentionally inflicted by minor child, 54 A.L.R. 3d 974 §§ 6 to 8.
Page 221

Parent and Child

§ 103 Statutory liability
Many states have enacted statutes making parents responsible for damages caused by willful, malicious, intentional, or
unlawful acts of their minor children. n1 These statutes have been held constitutional, n2 though there is authority to the
contrary. n3 A statute imposing strict liability on a parent for the intentional acts of his or her child derogates from com-
mon law, and therefore must be strictly construed. n4 Under some statutes, the parents are made liable for their children's
acts of vandalism or destruction or damage to property. n5 Other statutes impose liability upon parents of an unemanci-
pated minor, who, having taken a motor vehicle without the consent of the owner, causes property damage to that vehi-
cle. n6 Most, though not all, of these statutes limit the maximum recovery to a rather nominal sum, irrespective of the ac-
tual damage. n7 Generally, unless the act of the child was performed willfully, wantonly, or through gross negligence, its
parents will not be held vicariously liable, and some statutes are expressly limited to situations where the child acts will-
fully and maliciously. n8 Where the statute applies, liability is imposed on the parent irrespective of parental knowledge
of the minor's act or of any neglect of parental authority. n9 However, when the law terminates or interrupts parental au-
thority, parental responsibility is terminated or interrupted with it. n10
Where the minor is of such tender years that the concept of negligence seems repugnant, courts in common-law jurisdic-
tions have denied a recovery against the parents, n11 but there is contrary authority in a civil-law jurisdiction. n12
An insurer who has paid a claim against a child within the coverage of a statute providing for parental liability is subro-
gated to the rights of the victim against the parents. n13
FOOTNOTES:
n1 Lamb v. Peck, 183 Conn. 470, 441 A.2d 14 (1981); Stanford v. Smith, 173 Ga. 165, 159 S.E. 666 (1931); Hyman v. Davies, 453 N.E.2d
336 (Ind. Ct. App. 3d Dist. 1983); Smith v. Freeman, 31 So. 2d 524 (La. Ct. App. 2d Cir. 1947); In re John H., 293 Md. 295, 443 A.2d 594,
3 Ed. Law Rep. 665 (1982); Connors v. Pantano, 165 Neb. 515, 86 N.W.2d 367 (1957); Ortega v. Montoya, 97 N.M. 159, 637 P.2d 841
(1981); General Ins. Co. of America v. Faulkner, 259 N.C. 317, 130 S.E.2d 645, 8 A.L.R.3d 601 (1963); Motorists Mut. Ins. Co. v. Bill, 56
Ohio St. 2d 258, 10 Ohio Op. 3d 398, 383 N.E.2d 880 (1978); Memorial Lawn Cemeteries Ass'n, Inc. v. Carr, 1975 OK 119, 540 P.2d 1156
(Okla. 1975); Buie v. Longspaugh, 598 S.W.2d 673 (Tex. Civ. App. Fort Worth 1980), writ refused n.r.e., (Sept. 24, 1980).
n2 Stang v. Waller, 415 So. 2d 123 (Fla. Dist. Ct. App. 4th Dist. 1982); Alber v. Nolle, 98 N.M. 100, 645 P.2d 456 (Ct. App. 1982); General
Ins. Co. of America v. Faulkner, 259 N.C. 317, 130 S.E.2d 645, 8 A.L.R.3d 601 (1963); Rudnay v. Corbett, 53 Ohio App. 2d 311, 7 Ohio
Op. 3d 416, 374 N.E.2d 171 (8th Dist. Cuyahoga County 1977); Buie v. Longspaugh, 598 S.W.2d 673 (Tex. Civ. App. Fort Worth 1980),
writ refused n.r.e., (Sept. 24, 1980); Mahaney v. Hunter Enterprises, Inc., 426 P.2d 442 (Wyo. 1967).
n3 Corley v. Lewless, 227 Ga. 745, 182 S.E.2d 766 (1971).
n4 Kerins v. Lima, 425 Mass. 108, 680 N.E.2d 32 (1997); N.E.M. by Kryshak v. Strigel, 208 Wis. 2d 1, 559 N.W.2d 256 (1997).
n5 Landers v. Medford, 108 Ga. App. 525, 133 S.E.2d 403 (1963); In re John H., 293 Md. 295, 443 A.2d 594, 3 Ed. Law Rep. 665 (1982);
Frost v. Taylor, 649 S.W.2d 264 (Mo. Ct. App. S.D. 1983); Connors v. Pantano, 165 Neb. 515, 86 N.W.2d 367 (1957); Potomac Ins. Co. v.
Page 222
Torres, 75 N.M. 129, 401 P.2d 308 (1965); General Ins. Co. of America v. Faulkner, 259 N.C. 317, 130 S.E.2d 645, 8 A.L.R.3d 601 (1963);
Lewis v. Martin, 16 Ohio Misc. 18, 45 Ohio Op. 2d 22, 240 N.E.2d 913 (C.P. 1968); Buie v. Longspaugh, 598 S.W.2d 673 (Tex. Civ. App.
Fort Worth 1980), writ refused n.r.e., (Sept. 24, 1980); Mahaney v. Hunter Enterprises, Inc., 426 P.2d 442 (Wyo. 1967).
n6 LaBonte v. Federal Mut. Ins. Co., 159 Conn. 252, 268 A.2d 663 (1970).
n7 LaBonte v. Federal Mut. Ins. Co., 159 Conn. 252, 268 A.2d 663 (1970); General Ins. Co. of America v. Faulkner, 259 N.C. 317, 130
S.E.2d 645, 8 A.L.R.3d 601 (1963); Rudnay v. Corbett, 53 Ohio App. 2d 311, 7 Ohio Op. 3d 416, 374 N.E.2d 171 (8th Dist. Cuyahoga
County 1977); Buie v. Longspaugh, 598 S.W.2d 673 (Tex. Civ. App. Fort Worth 1980), writ refused n.r.e., (Sept. 24, 1980).
n8 Crum v. Groce, 192 Colo. 185, 556 P.2d 1223 (1976); Lutteman v. Martin, 20 Conn. Supp. 371, 135 A.2d 600 (C.P. 1957); In re Appeal
No. 769 September Term, 1974 From Circuit Court of Baltimore City, 25 Md. App. 565, 335 A.2d 204 (1975); Travelers Indem. Co. v.
Brooks, 60 Ohio App. 2d 37, 14 Ohio Op. 3d 19, 395 N.E.2d 494 (6th Dist. Lucas County 1977).
n9 Kelly v. Williams, 346 S.W.2d 434 (Tex. Civ. App. Dallas 1961), writ refused n.r.e., (June 21, 1961).
n10 Fraizer v. Day, 315 So. 2d 356 (La. Ct. App. 1st Cir. 1975); In re James D., 295 Md. 314, 455 A.2d 966 (1983); Albert v. Ellis, 59 Ohio
App. 2d 152, 13 Ohio Op. 3d 188, 392 N.E.2d 1309 (8th Dist. Cuyahoga County 1978) (minor child who is validly married, has established
his own residence, and is self-supporting is no longer within the custody and control of his parents for purposes of establishing statutory lia-
bility).
n11 Connors v. Pantano, 165 Neb. 515, 86 N.W.2d 367 (1957).
n12 Turner v. Bucher, 308 So. 2d 270 (La. 1975).
n13 Ohio Cas. Ins. Co. v. Nunez, 134 So. 2d 309 (La. Ct. App. 3d Cir. 1961); General Ins. Co. of America v. Faulkner, 259 N.C. 317, 130
S.E.2d 645, 8 A.L.R.3d 601 (1963); Motorists Mut. Ins. Co. v. Bill, 56 Ohio St. 2d 258, 10 Ohio Op. 3d 398, 383 N.E.2d 880 (1978).

Parents' liability for injury or damage intentionally inflicted by minor child, 54 A.L.R. 3d 974 §§ 14, 15.
Validity and construction of statutes making parents liable for torts committed by their minor children, 8 A.L.R. 3d 612.
Page 223

Parent and Child

§ 104 Criminal responsibility
A parent may be criminally responsible for acts of his minor child if they were done at his direction or with his consent.
n1
It has been held constitutional to punish a parent for allowing his child to violate a curfew ordinance. n2 Also, a mother
who in fact has control of her minor children, and knowingly permits them to go at large in violation of a valid quaran-
tine order, is subject to the statutory penalty therefor. n3
However, it has been held that a state statute which pertained to operation of off-highway recreational vehicles and
which imposed upon parents criminal liability for acts of their children simply on the basis of their parental status of-
fended the state due process clause. n4
FOOTNOTES:
n1 Commonwealth v. Slavski, 245 Mass. 405, 140 N.E. 465, 29 A.L.R. 281 (1923).
Related References:
Creating problems rather than solving them: Why criminal parental responsibility laws do not fit within our understand-
ing of justice. 66 Fordham LR 3:1029 (1998).
n2 People v. Walton, 70 Cal. App. 2d Supp. 862, 161 P.2d 498 (Super. Ct. 1945).
A parent's conviction for violating an ordinance making it unlawful for a parent to allow a child to be on the streets during certain curfew
hours was reversed where the uncontroverted evidence was that the father did not know that his son was violating the curfew ordinance. City
of Eastlake v. Ruggiero, 7 Ohio App. 2d 212, 36 Ohio Op. 2d 345, 220 N.E.2d 126 (7th Dist. Lake County 1966).
n3 State v. Rackowski, 86 Conn. 677, 86 A. 606 (1913).
n4 State v. Akers, 119 N.H. 161, 400 A.2d 38, 12 A.L.R.4th 667 (1979).

Criminal responsibility of parent for act of child, 12 A.L.R. 4th 673.
Page 224

Parent and Child

§ 105 Offenses of child against parents
Though parents have a right of possession of their home superior to that of their child, n1 a minor generally has his par-
ent's consent, or a privilege, to enter the family home. n2 However, a minor may be guilty of burglary when the minor en-
ters the home after such privilege or consent has been revoked. n3 Parents can revoke a minor's privilege to enter the
family home only if they do so expressly and unequivocally and provide some alternative means of assuring that their
statutory duty of care is met. n4 Parents have a duty to provide shelter for a minor child, but once legal custody is placed
outside the home, that duty is reduced to a financial responsibility. n5
FOOTNOTES:
n1 In Interest of G.L., 73 Ill. App. 3d 467, 29 Ill. Dec. 425, 391 N.E.2d 1108 (3d Dist. 1979).
n2 U. S. v. Prejean, 494 F.2d 495 (5th Cir. 1974) (applying Texas law).
n3 In re Richard M., 205 Cal. App. 3d 7, 252 Cal. Rptr. 36 (2d Dist. 1988); In Interest of G.L., 73 Ill. App. 3d 467, 29 Ill. Dec. 425, 391
N.E.2d 1108 (3d Dist. 1979); State v. Howe, 116 Wash. 2d 466, 805 P.2d 806, 17 A.L.R.5th 881 (1991).
n4 U. S. v. Prejean, 494 F.2d 495 (5th Cir. 1974) (applying Texas law); State v. Howe, 116 Wash. 2d 466, 805 P.2d 806, 17 A.L.R.5th 881
(1991).
n5 In Interest of G.L., 73 Ill. App. 3d 467, 29 Ill. Dec. 425, 391 N.E.2d 1108 (3d Dist. 1979).

Minor's entry into home of parent as sufficient to sustain burglary charge, 17 A.L.R. 5th 111.
Page 225

Parent and Child

VIII. Actions Involving Parent and Child
A. Actions Between Parent and Child
1. In General
§ 106 Generally
Although it has been said that actions or suits by child against parent should not be encouraged, since they tend to dis-
turb the cordial relationship that should exist by virtue of blood ties and to render parental discipline ineffective, n1 it is
nevertheless recognized that certain facts and circumstances may give rise to a cause of action between parties who also
bear the relation to each other of parent and child. n2 For example, a parent can sue his adult child for breach of contract.
n3
Also, in some jurisdictions, though not in all, a child may bring an action against his parent to enforce his right to sup-
port. n4 A suit may be maintained between parent and child with respect to property rights. n5 However, the question
whether there can be tort liability between parent and child, especially in negligence cases, is a controversial one. n6
FOOTNOTES:
n1 Buchanan v. Buchanan, 170 Va. 458, 197 S.E. 426, 116 A.L.R. 688 (1938).
n2 Segall v. Ohio Cas. Co., 224 Wis. 379, 272 N.W. 665, 110 A.L.R. 82 (1937).
n3 Robertson v. Robertson, 229 So. 2d 642 (Fla. Dist. Ct. App. 3d Dist. 1969).
n4 § 74.
n5 Cowgill v. Boock, 189 Or. 282, 218 P.2d 445, 19 A.L.R.2d 405 (1950).
n6 §§ 110 et seq.
REFERENCE: West's Key Number Digest, Parent and Child [westkey]11, 13.5
A.L.R. Digest: Parent and Child §§ 12, 12.5
Page 226

Parent and Child

1. In General
§ 107 What law governs
The right of a parent and child to maintain tort actions against each other is governed by the law of the place where the
tort occurred. n1 However, this view has been forcefully criticized, and it has been held that the question should be deter-
mined by the law of the state of the family domicile, since that state has the primary responsibility for establishing and
regulating the incidents of family relationship. n2 In at least one case, the law of the forum has been applied on the
ground that that law governs as to the parties and the right to sue. n3
FOOTNOTES:
n1 Villaret v. Villaret, 169 F.2d 677 (App. D.C. 1948); Rines v. Rines, 97 N.H. 55, 80 A.2d 497 (1951); Henderson v. Henderson, 11 Misc.
2d 449, 169 N.Y.S.2d 106 (Sup 1957); Glover v. Glover, 44 Tenn. App. 712, 319 S.W.2d 238 (1958); Ball v. Ball, 73 Wyo. 29, 269 P.2d
302 (1954).
n2 Emery v. Emery, 45 Cal. 2d 421, 289 P.2d 218 (1955); Aurora Nat. Bank v. Anderson, 132 Ill. App. 2d 217, 268 N.E.2d 552 (2d Dist.
1971); Balts v. Balts, 273 Minn. 419, 142 N.W.2d 66 (1966).
Notwithstanding that the tort occurred in Ohio wherein the doctrine of intra-family immunity was applicable, the lex loci delicti would not
be applied to bar an action by a daughter against her father in a Michigan court where the parties were Michigan residents. Application of the
Ohio immunity law would frustrate Michigan's public policy permitting a child to maintain suit against a parent for negligence. Sweeney v.
Sweeney, 402 Mich. 234, 262 N.W.2d 625 (1978).
n3 Fowlkes v. Ray-O-Vac Co., 52 Ga. App. 338, 183 S.E. 210 (1935).
SUPPLEMENT:
Cases
In tort cases involving family members, the state where the parties are domiciled has a more significant relationship to
the action and will govern over the law of the state where the tort occurred. Heinze v. Heinze, 274 Neb. 595, 742
N.W.2d 465 (2007).
Conflict of laws as to right of action between husband and wife or parent and child, 96 A.L.R. 2d 973.
Page 227

Parent and Child

2. Parent Against Child
§ 108 Generally
Generally, a parent cannot maintain a tort action against his unemancipated minor child. n1 Where this rule is in effect,
the presence of liability insurance in the particular instance has not brought about its relaxation. n2 However, several ju-
risdictions have abrogated the immunity rule n3 or, being uncommitted, have refused to adopt it. n4 Also, another has re-
fused to apply it where the tort was unconnected with the family relationship. n5 Another has held there is no intrafamily
immunity in a tort action against a child arising from negligent damage to a motor vehicle. n6
FOOTNOTES:
n1 Wright v. Farmers' Reliance Ins. Co. of New Jersey, 314 So. 2d 641 (Fla. Dist. Ct. App. 3d Dist. 1975); Schneider v. Schneider, 160 Md.
18, 152 A. 498, 72 A.L.R. 449 (1930); Fitzgerald v. Valdez, 77 N.M. 769, 427 P.2d 655 (1967); Hampton v. Clendinning, 1966 OK 51, 416
P.2d 617 (Okla. 1966); Detwiler v. Detwiler, 162 Pa. Super. 383, 57 A.2d 426 (1948).
As to an action against a minor child for the wrongful death of a parent, see 22A Am. Jur. 2d, Death § 156.
n2 Shaker v. Shaker, 129 Conn. 518, 29 A.2d 765 (1942); Schneider v. Schneider, 160 Md. 18, 152 A. 498, 72 A.L.R. 449 (1930); Silver-
stein v. Kastner, 342 Pa. 207, 20 A.2d 205 (1941); Fidelity Sav. Bank v. Aulik, 252 Wis. 602, 32 N.W.2d 613 (1948).
n3 Anderson v. Stream, 295 N.W.2d 595 (Minn. 1980); Gaudreau v. Gaudreau, 106 N.H. 551, 215 A.2d 695 (1965); Gelbman v. Gelbman,
23 N.Y.2d 434, 297 N.Y.S.2d 529, 245 N.E.2d 192 (1969); Ertl v. Ertl, 30 Wis. 2d 372, 141 N.W.2d 208 (1966).
A parent or child is not immune from tort liability to the other solely by reason of that relationship. Repudiation of general tort immunity
does not establish liability for an act or omission that, because of the parent-child relationship, is otherwise privileged or is not tortious. Re-
statement Second, Torts § 895G.
n4 Tamashiro v. De Gama, 51 Haw. 74, 450 P.2d 998 (1969).
n5 Schenk v. Schenk, 100 Ill. App. 2d 199, 241 N.E.2d 12 (4th Dist. 1968).
n6 New Hampshire Ins. Co. v. Fahey, 385 Mass. 137, 430 N.E.2d 1193 (1982).
Right of parent or representatives to maintain tort action against minor child, 60 A.L.R. 2d 1284.
Page 228

Parent and Child

2. Parent Against Child
§ 109 Where child is of age or emancipated
The immunity rule does not bar a parent from bringing an action against an adult child, even where the child is living in
the parent's home as a member of the family n1 and being supported by him. n2 Such a suit is allowed even though the tort
was committed during the child's minority. n3 The parent may also bring a tort action against an emancipated child. n4
However, for emancipation to have this effect, a complete severance of the parental and filial ties must be shown; partial
emancipation is not enough to remove the bar. n5 In at least one case, it was held that the reason for the immunity rule
fails where the family relationship has been severed or terminated, and accordingly that an action for the wrongful death
of a parent could be brought against a minor child who had been unemancipated at the time of the accident, but had
since been emancipated. n6
FOOTNOTES:
n1 Taylor v. Taylor, 360 Mo. 994, 232 S.W.2d 382 (1950).
n2 Fitzgerald v. Valdez, 77 N.M. 769, 427 P.2d 655 (1967).
n3 Jagers v. Royal Indem. Co., 276 So. 2d 309 (La. 1973).
n4 Fitzgerald v. Valdez, 77 N.M. 769, 427 P.2d 655 (1967); Gillikin v. Burbage, 263 N.C. 317, 139 S.E.2d 753 (1965); Falco v. Pados, 444
Pa. 372, 282 A.2d 351 (1971).
n5 Thompson v. Thompson, 264 S.W.2d 667 (Ky. 1954); Gillikin v. Burbage, 263 N.C. 317, 139 S.E.2d 753 (1965); Parker v. Parker, 230
S.C. 28, 94 S.E.2d 12, 60 A.L.R.2d 1280 (1956).
n6 Logan v. Reaves, 209 Tenn. 631, 354 S.W.2d 789 (1962).
Right of parent or representatives to maintain tort action against minor child, 60 A.L.R. 2d 1284 § 6.
Page 229

Parent and Child

3. Child Against Parent
§ 110 Generally
An unemancipated minor cannot maintain a tort action against his parent. n1 The rule has not been extended to other fam-
ily relationships, such as brothers and sisters, even where they live together in the same home, it being generally held in
such a case that they may sue each other in tort. n2 A minor may recover in tort only for brutal, cruel, or inhuman treat-
ment inflicted by a parent or person standing in loco parentis. n3
Minor children have no tort action against their mothers for emotional and psychological injury caused by the failure of
the mothers to perform their parental duties. Nor can the mothers be held liable on the basis of infliction of severe emo-
tional distress by intentional acts, on the asserted ground of alienation of affection, or by recognition of a new tort of
parental desertion. n4
The doctrine of parental immunity is not applicable in a case involving a dog bite by the parents' dog under a statute im-
posing strict liability for dog bites. n5
FOOTNOTES:
n1 Owens v. Auto Mut. Indemnity Co., 235 Ala. 9, 177 So. 133 (1937); Chastain v. Chastain, 50 Ga. App. 241, 177 S.E. 828 (1934);
Mroczynski v. McGrath, 34 Ill. 2d 451, 216 N.E.2d 137 (1966); Smith v. Smith, 81 Ind. App. 566, 142 N.E. 128 (Div. 1 1924); Frey v. Blan-
ket Corp., 255 Neb. 100, 582 N.W.2d 336 (1998); Watson v. Nichols, 270 N.C. 733, 155 S.E.2d 154 (1967); Restifo v. McDonald, 426 Pa.
5, 230 A.2d 199, 34 A.L.R.3d 1365 (1967); Kelly v. Kelly, 158 S.C. 517, 155 S.E. 888 (1930); Campbell v. Gruttemeyer, 222 Tenn. 133,
432 S.W.2d 894 (1968); Wright v. Wright, 213 Va. 177, 191 S.E.2d 223 (1972).
n2 Smith v. Somera, 389 So. 2d 1080 (Fla. Dist. Ct. App. 3d Dist. 1980); Rozell v. Rozell, 281 N.Y. 106, 22 N.E.2d 254, 123 A.L.R. 1015
(1939); Midkiff v. Midkiff, 201 Va. 829, 113 S.E.2d 875, 81 A.L.R.2d 1150 (1960); Munsert v. Farmers Mut. Auto. Ins. Co., 229 Wis. 581,
281 N.W. 671, 119 A.L.R. 1390 (1938).
A child has no cause of action against a sibling who is guilty of negligent supervision. Smith v. Sapienza, 115 A.D.2d 723, 496 N.Y.S.2d
538 (2d Dep't 1985).
n3 Frey v. Blanket Corp., 255 Neb. 100, 582 N.W.2d 336 (1998).
n4 Burnette v. Wahl, 284 Or. 705, 588 P.2d 1105 (1978).
n5 Dower v. Goldstein, 143 N.J. Super. 418, 363 A.2d 373 (App. Div. 1976).
SUPPLEMENT:
Page 230
Cases
No exception to parental immunity doctrine existed for cases in which there was no significant relationship between the
child and the parent-defendant, and thus son's estate could not bring wrongful death action against father, asserting that
father's negligence resulted in car accident which caused son's death, even if father had little relationship with son; al-
lowing such an exception would have required an inquiry into every allegedly negligent parent's relationship with child
to determine whether relationship was sufficient to allow parental immunity. Greenwood v. Anderson, 2009 Ark. 360,
324 S.W.3d 324 (2009).
Evidence was insufficient to support finding that daughter's brothers were in imminent danger of being abused due to
physical abuse of daughter by mother's live-in paramour and mother's tolerance of it, and thus did not support removal
of the brothers from mother's home; gravamen of the evidence was to the effect that brothers were happy in their
mother's home and doing well, and there was only evidence of two instances of abuse of daughter. D.C. Official Code,
2001 Ed. § 16-2301(9)(E). In re G.H., 797 A.2d 679 (D.C. 2002).
The doctrine of parent-child immunity is limited to claims where the child in the relationship was unemancipated at the
time of the alleged wrongful conduct. Bushey v. Northern Assur. Co. of America, 362 Md. 626, 766 A.2d 598 (2001).
Defendant was not guilty of offence of child abuse through neglect, absent any evidence that his children suffered any
actual, deleterious effect or harm to their physical or mental health in any way, where State's witnesses admitted that the
children appeared physically healthy at the time of their removal -- except that one child was suffering from a cold --
and that none of the children possessed any other signs of injury or harm, despite vile conditions of their home. T.C.A. §
39-15-401(a). State v. Mateyko, 53 S.W.3d 666 (Tenn. 2001).
Action against parent by or on behalf of unemancipated minor child for wrongful death of other parent, 87 A.L.R. 3d
849.
Family relationship other than that of parent and child or husband and wife between tortfeasor and person injured or
killed as affecting right to maintain action, 81 A.L.R. 2d 1155 § 2.
Complaint, petition, or declaration -- By minor child against parent -- For injury caused by negligence of parent 19 Am.
Jur. Pleading and Practice Forms, Parent and Child § 174.
Page 231

Parent and Child

§ 111 Ordinary negligence
In a number of jurisdictions, the cases still run strongly to the effect that an unemancipated minor cannot maintain an
action against his parent for ordinary negligence. n1 Some jurisdictions have judicially abolished the parental immunity
rule. n2 Others not previously committed have rejected it. n3 Several jurisdictions have abrogated it prospectively except
in two situations: (1) where the alleged negligent act involves an exercise of parental authority over the child; and (2)
where the alleged negligent act involves an exercise of ordinary parental discretion with respect to the provision of food,
clothing, housing, medical and dental services, and other care. n4 Another has abrogated the doctrine of parent-child im-
munity except in special situations that involve the exercise of parental authority and customary child care. Also, that
exception is modified to permit recovery where the parent's inadequate supervision rises to the level of willful or wan-
ton misconduct. n5 Also, one jurisdiction has limited it to conduct of either parent or child arising out of the family rela-
tionship and directly connected with the family purposes and objectives in those cases where it may be said that the
carelessness, inadvertence, or negligence is but the product of the hazards incident to intrafamily living and common to
every family. n6 In another jurisdiction, the courts, while recognizing the general abrogation of the doctrine of parental
tort immunity, hold that parental liability does not extend to situations in which the alleged negligent act of the parent
consists of the negligent supervision of, or negligent entrustment of a dangerous instrumentality to, the unemancipated
child. n7 A minor child has no cause of action against his or her parent for negligent supervision in general, or for negli-
gently entrusting him or her with a dangerous instrument in particular. n8
FOOTNOTES:
n1 Thomas v. Inmon, 268 Ark. 221, 594 S.W.2d 853 (1980); Horton v. Reaves, 186 Colo. 149, 526 P.2d 304 (1974); Ooms v. Ooms, 164
Conn. 48, 316 A.2d 783 (1972); Schneider v. Coe, 405 A.2d 682 (Del. 1979); Coleman v. Coleman, 157 Ga. App. 533, 278 S.E.2d 114
(1981); Pedigo v. Rowley, 101 Idaho 201, 610 P.2d 560 (1980); Thomas v. Chicago Bd. of Ed., 77 Ill. 2d 165, 32 Ill. Dec. 308, 395 N.E.2d
538 (1979); Vaughan v. Vaughan, 161 Ind. App. 497, 316 N.E.2d 455 (1st Dist. 1974); Bondurant v. Bondurant, 386 So. 2d 705 (La. Ct.
App. 3d Cir. 1980); Shell Oil Co. v. Ryckman, 43 Md. App. 1, 403 A.2d 379 (1979); Wurth v. Wurth, 322 S.W.2d 745 (Mo. 1959); Furr v.
Pinoca Volunteer Fire Dept. of Paw Creek Tp., Inc., 53 N.C. App. 458, 281 S.E.2d 174 (1981); Parker v. Parker, 230 S.C. 28, 94 S.E.2d 12,
60 A.L.R.2d 1280 (1956); Campbell v. Gruttemeyer, 222 Tenn. 133, 432 S.W.2d 894 (1968); Wright v. Wright, 213 Va. 177, 191 S.E.2d
223 (1972); Merrick v. Sutterlin, 93 Wash. 2d 411, 610 P.2d 891 (1980); Ball v. Ball, 73 Wyo. 29, 269 P.2d 302 (1954).
n2 France v. A. P. A. Transport Corp., 56 N.J. 500, 267 A.2d 490 (1970); Gibson v. Gibson, 3 Cal. 3d 914, 92 Cal. Rptr. 288, 479 P.2d 648
(1971); Ard v. Ard, 395 So. 2d 586 (Fla. Dist. Ct. App. 1st Dist. 1981), aff'd in part, 414 So. 2d 1066 (Fla. 1982); Larson v. Buschkamp, 105
Ill. App. 3d 965, 61 Ill. Dec. 732, 435 N.E.2d 221 (2d Dist. 1982); Turner v. Turner, 304 N.W.2d 786 (Iowa 1981); Nocktonick v. Nockton-
ick, 227 Kan. 758, 611 P.2d 135 (1980); Rigdon v. Rigdon, 465 S.W.2d 921 (Ky. 1970); Black v. Solmitz, 409 A.2d 634, 6 A.L.R.4th 1054
(Me. 1979); Sweeney v. Sweeney, 402 Mich. 234, 262 N.W.2d 625 (1978); Anderson v. Stream, 295 N.W.2d 595 (Minn. 1980); Rupert v.
Stienne, 90 Nev. 397, 528 P.2d 1013 (1974); Briere v. Briere, 107 N.H. 432, 224 A.2d 588 (1966); Gelbman v. Gelbman, 23 N.Y.2d 434,
297 N.Y.S.2d 529, 245 N.E.2d 192 (1969); Kirchner v. Crystal, 15 Ohio St. 3d 326, 474 N.E.2d 275 (1984); Winn v. Gilroy, 296 Or. 718,
681 P.2d 776 (1984); Falco v. Pados, 444 Pa. 372, 282 A.2d 351 (1971); Fowler v. Fowler, 242 S.C. 252, 130 S.E.2d 568 (1963); Wood v.
Wood, 135 Vt. 119, 370 A.2d 191 (1977); Howes v. Hansen, 56 Wis. 2d 247, 201 N.W.2d 825 (1972).
Page 232
n3 Hebel v. Hebel, 435 P.2d 8 (Alaska 1967); Petersen v. City and County of Honolulu, 51 Haw. 484, 462 P.2d 1007 (1969); Rupert v. Sti-
enne, 90 Nev. 397, 528 P.2d 1013 (1974).
n4 Rigdon v. Rigdon, 465 S.W.2d 921 (Ky. 1970); McCallister v. Sun Valley Pools, Inc., 100 Mich. App. 131, 298 N.W.2d 687 (1980); Ro-
manik v. Toro Co., 277 N.W.2d 515, 2 A.L.R.4th 1276 (Minn. 1979); Goller v. White, 20 Wis. 2d 402, 122 N.W.2d 193 (1963).
Supervision of a child's play does not come within parental immunity from liability for allegedly negligent acts. Cole v. Sears Roebuck &
Co., 47 Wis. 2d 629, 177 N.W.2d 866 (1970).
n5 Foldi v. Jeffries, 93 N.J. 533, 461 A.2d 1145 (1983).
n6 Schenk v. Schenk, 100 Ill. App. 2d 199, 241 N.E.2d 12 (4th Dist. 1968).
n7 Nolechek v. Gesuale, 46 N.Y.2d 332, 413 N.Y.S.2d 340, 385 N.E.2d 1268 (1978) (motorcycle); Holodook v. Spencer, 36 N.Y.2d 35,
364 N.Y.S.2d 859, 324 N.E.2d 338 (1974) (negligent supervision).
SUPPLEMENT:
Cases
Former wife's right to recover damages against former husband for their son's death in a house fire while staying at hus-
band's residence, based on theory of parental consortium, depended on whether the parties' son would have been entitled
to bring an action against husband if the son had lived, and thus, since son's right to recover against husband was barred
by parental immunity, the wife's parental-consortium claim was barred as well. Sepaugh v. LaGrone, 300 S.W.3d 328
(Tex. App. Austin 2009), rule 53.7(f) motion granted, (Jan. 26, 2010).
Liability of parent for injury to unemancipated child caused by parent's negligence -- modern cases, 6 A.L.R. 4th 1066.
849.
Page 233

Parent and Child

§ 112 Motor vehicle actions
Some courts, while generally adhering to the parental immunity doctrine, have held that the doctrine is not applicable to
actions arising from motor vehicle accidents, either by virtue of judicial construction n1 or in conformity to statutes so
providing. n2
FOOTNOTES:
n1 France v. A. P. A. Transport Corp., 56 N.J. 500, 267 A.2d 490 (1970); Ard v. Ard, 395 So. 2d 586 (Fla. Dist. Ct. App. 1st Dist. 1981),
aff'd in part, 414 So. 2d 1066 (Fla. 1982); Turner v. Turner, 304 N.W.2d 786 (Iowa 1981); Black v. Solmitz, 409 A.2d 634, 6 A.L.R.4th
1054 (Me. 1979); New Hampshire Ins. Co. v. Fahey, 385 Mass. 137, 430 N.E.2d 1193 (1982); Transamerica Ins. Co. v. Royle, 202 Mont.
173, 656 P.2d 820 (1983); Silva v. Silva, 446 A.2d 1013 (R.I. 1982); Smith v. Kauffman, 212 Va. 181, 183 S.E.2d 190 (1971); Merrick v.
Sutterlin, 93 Wash. 2d 411, 610 P.2d 891 (1980); Lee v. Comer, 159 W. Va. 585, 224 S.E.2d 721 (1976).
n2 Begley v. Kohl & Madden Printing Ink Co., 157 Conn. 445, 254 A.2d 907 (1969); Snow v. Nixon, 52 N.C. App. 131, 277 S.E.2d 850
(1981); Ledwell v. Berry, 39 N.C. App. 224, 249 S.E.2d 862 (1978); Christenbury v. Hedrick, 32 N.C. App. 708, 234 S.E.2d 3 (1977).
Liability of parent for injury to unemancipated child caused by parent's negligence -- modern cases, 6 A.L.R. 4th 1066 §
6.
Page 234

Parent and Child

§ 113 Nonparental acts or transactions
A distinction has been suggested between obligations of the parent that are peculiarly parental and those that are im-
posed upon everyone in all relations with other people. n1 The parental immunity rule is sometimes stated as applying to
negligence growing out of and pertaining to the relation of parent and child. n2 Also, it has been held that a parent has no
immunity while engaged in a nonparental transaction, n3 or where performing duties relating to his business, as distinct
from parental duties. n4 Also, where there is some other relation between the parties on which liability can be predicated,
such as employer and employee n5 or carrier and passenger, n6 the fact that the parties are also related as parent and child
has been held not to preclude liability.
FOOTNOTES:
n1 Dunlap v. Dunlap, 84 N.H. 352, 150 A. 905, 71 A.L.R. 1055 (1930); Worrell v. Worrell, 174 Va. 11, 4 S.E.2d 343 (1939).
n2 Foldi v. Jeffries, 93 N.J. 533, 461 A.2d 1145 (1983); McCallister v. Sun Valley Pools, Inc., 100 Mich. App. 131, 298 N.W.2d 687
(1980).
n3 Hurst v. Titus, 77 A.D.2d 157, 432 N.Y.S.2d 938 (4th Dep't 1980); Cummings v. Jackson, 57 Ill. App. 3d 68, 14 Ill. Dec. 848, 372
N.E.2d 1127 (4th Dist. 1978); Borst v. Borst, 41 Wash. 2d 642, 251 P.2d 149 (1952).
n4 Trevarton v. Trevarton, 151 Colo. 418, 378 P.2d 640 (1963); Foy v. Foy Elec. Co., 231 N.C. 161, 56 S.E.2d 418 (1949); Felderhoff v.
Felderhoff, 473 S.W.2d 928 (Tex. 1971).
n6 Worrell v. Worrell, 174 Va. 11, 4 S.E.2d 343 (1939); Lusk v. Lusk, 113 W. Va. 17, 166 S.E. 538 (1932).
Liability of parent for injury to unemancipated child caused by parent's negligence -- modern cases, 6 A.L.R. 4th 1066
§§ 8, 9.
Page 235

Parent and Child

§ 114 Of parent lacking custody of child
Some courts, while generally adhering to the parental immunity doctrine, hold that a parent who does not have the cus-
tody of his unemancipated child at the time the tort occurs is not immune from suit in tort by the child. n1
FOOTNOTES:
n1 Buffalo v. Buffalo, 441 N.E.2d 711 (Ind. Ct. App. 4th Dist. 1982); Turner v. Turner, 304 N.W.2d 786 (Iowa 1981); Bondurant v. Bon-
durant, 386 So. 2d 705 (La. Ct. App. 3d Cir. 1980); Fugate v. Fugate, 582 S.W.2d 663 (Mo. 1979).
11.
Page 236

Parent and Child

§ 115 Of person in loco parentis
Where a stepparent stands in loco parentis to a child who is a member of his household, his immunity, at least in a mere
negligence case, is usually the same as would be accorded to a natural parent. n1 However, according to some courts, and
in some types of cases, a person standing merely in loco parentis may sometimes be liable where a natural parent would
not have been. n2 Also, though a natural parent is not civilly liable to his child for breach of a peculiarly parental duty,
there have been instances in which persons in loco parentis have been held liable for failure to provide care and protec-
tion. n3
FOOTNOTES:
n1 Gillett v. Gillett, 168 Cal. App. 2d 102, 335 P.2d 736 (2d Dist. 1959); Bricault v. Deveau, 21 Conn. Supp. 486, 157 A.2d 604 (Super. Ct.
1960); Maddox v. Queen, 150 Ga. App. 408, 257 S.E.2d 918 (1979); Hush v. Devilbiss Co., 77 Mich. App. 639, 259 N.W.2d 170 (1977);
London Guarantee & Acc. Co. v. Smith, 242 Minn. 211, 64 N.W.2d 781 (1954); Kaplan v. Vavasseur, 101 Misc. 2d 519, 421 N.Y.S.2d 335
(Sup 1979); Barry v. Schorling, 2 Ohio App. 3d 110, 440 N.E.2d 1216 (6th Dist. Lucas County 1981); Van Wart v. Cook, 1976 OK CIV
APP 39, 557 P.2d 1161 (Okla. Ct. App. Div. 1 1976); Gunn v. Rollings, 250 S.C. 302, 157 S.E.2d 590 (1967); Lyles v. Jackson, 216 Va.
797, 223 S.E.2d 873 (1976); McManus v. Hinney, 31 Wis. 2d 333, 143 N.W.2d 1 (1966).
n2 Wilkins v. Kane, 74 N.J. Super. 414, 181 A.2d 417 (Law Div. 1962); Mayberry v. Pryor, 422 Mich. 579, 374 N.W.2d 683, 55 A.L.R.4th
767 (1985).
n3 In re Juvenile Appeal, 187 Conn. 431, 446 A.2d 808 (1982); Flagg v. Flagg, 458 A.2d 748 (Me. 1983); In re James D., 295 Md. 314, 455
A.2d 966 (1983); Clasen v. Pruhs, 69 Neb. 278, 95 N.W. 640 (1903); Com. ex rel. Zaffarano v. Genaro, 500 Pa. 256, 455 A.2d 1180 (1983);
In re Nicholas, 457 A.2d 1359 (R.I. 1983).
West's Key Number Digest, Parent and Child [westkey]11, 13.5, 15
4.
Page 237

Parent and Child

§ 116 Effect of insurance
According to most courts, the fact that the particular defendant-parent is protected by insurance against legal liability
does not enable the minor to maintain the action if he could not otherwise have done so. n1 Protection by insurance, how-
ever, is regarded by some courts as removing the objection to the action. n2 Also, some courts have considered the wide
prevalence of liability insurance, especially in automobile cases, as a proper factor to be taken into account in deciding
whether to abrogate the immunity rule. n3
If the insurance policy is designed to provide compensation to persons injured, not simply protection against liability,
and especially, it seems, if the procurement of it for that purpose is compulsory, the minor's action may be maintainable.
n4
FOOTNOTES:
n1 Owens v. Auto Mut. Indemnity Co., 235 Ala. 9, 177 So. 133 (1937); Rambo v. Rambo, 195 Ark. 832, 114 S.W.2d 468 (1938); Hogan v.
Hogan, 106 Ill. App. 3d 104, 61 Ill. Dec. 929, 435 N.E.2d 770 (5th Dist. 1982); McNeal v. Administrator of McNeal's Estate, 254 So. 2d 521
(Miss. 1971); Gillikin v. Burbage, 263 N.C. 317, 139 S.E.2d 753 (1965); Silverstein v. Kastner, 342 Pa. 207, 20 A.2d 205 (1941); Maxey v.
Sauls, 242 S.C. 247, 130 S.E.2d 570 (1963).
n2 Union Bank & Trust Co. of Mt. Holley, N. J. v. First Nat. Bank & Trust Co. of Waynesboro, Pa., 362 F.2d 311 (5th Cir. 1966); Hebel v.
Hebel, 435 P.2d 8 (Alaska 1967); Williams v. Williams, 369 A.2d 669 (Del. 1976); Ard v. Ard, 414 So. 2d 1066 (Fla. 1982); Ruiz v. Clancy,
182 La. 935, 162 So. 734 (1935); Dean v. Smith, 106 N.H. 314, 211 A.2d 410 (1965); Gelbman v. Gelbman, 23 N.Y.2d 434, 297 N.Y.S.2d
529, 245 N.E.2d 192 (1969); Worrell v. Worrell, 174 Va. 11, 4 S.E.2d 343 (1939); Lusk v. Lusk, 113 W. Va. 17, 166 S.E. 538 (1932).
n3 Williams v. Williams, 369 A.2d 669 (Del. 1976); Briere v. Briere, 107 N.H. 432, 224 A.2d 588 (1966); Goller v. White, 20 Wis. 2d 402,
122 N.W.2d 193 (1963).
As to the abrogation of the doctrine in motor vehicle actions, see § 112.
n4 Williams v. Williams, 369 A.2d 669 (Del. 1976); Small v. Morrison, 185 N.C. 577, 118 S.E. 12, 31 A.L.R. 1135 (1923); Worrell v. Wor-
rell, 174 Va. 11, 4 S.E.2d 343 (1939); Lusk v. Lusk, 113 W. Va. 17, 166 S.E. 538 (1932).
10.
Page 238

Parent and Child

§ 117 Effect of child's emancipation or coming of age
An emancipated minor can maintain tort actions against his parents, n1 but emancipation must be complete, not merely
partial. n2 An emancipated child cannot maintain an action against his parent for a tort committed before emancipation if
at the time of the wrong the action was not maintainable. n3
FOOTNOTES:
n1 Wood v. Wood, 135 Conn. 280, 63 A.2d 586 (1948); Fowlkes v. Ray-O-Vac Co., 52 Ga. App. 338, 183 S.E. 210 (1935); Shell Oil Co. v.
Ryckman, 43 Md. App. 1, 403 A.2d 379 (1979); Wurth v. Wurth, 322 S.W.2d 745 (Mo. 1959); Gillikin v. Burbage, 263 N.C. 317, 139
S.E.2d 753 (1965).
As to what constitutes emancipation, generally, see §§ 79 et seq.
n2 Perkins v. Robertson, 140 Cal. App. 2d 536, 295 P.2d 972 (4th Dist. 1956); Gillikin v. Burbage, 263 N.C. 317, 139 S.E.2d 753 (1965).
n3 Rambo v. Rambo, 195 Ark. 832, 114 S.W.2d 468 (1938); Lee v. Comer, 159 W. Va. 585, 224 S.E.2d 721 (1976).
5.
Page 239

Parent and Child

§ 118 Effect of death of parent or child
Since the purpose of the intrafamily immunity rule is to protect the family relationship, some courts take the view that
the rule no longer applies when the relationship has already been ended by the death of the parent, n1 or of the child, n2
though there is authority to the contrary. n3
FOOTNOTES:
n1 Barnwell v. Cordle, 438 F.2d 236 (5th Cir. 1971) (applying Georgia law); Palcsey v. Tepper, 71 N.J. Super. 294, 176 A.2d 818 (Law
Div. 1962); Johnson v. Myers, 2 Ill. App. 3d 844, 277 N.E.2d 778 (2d Dist. 1972); Shumway v. Nelson, 259 Minn. 319, 107 N.W.2d 531
(1961); Brennecke v. Kilpatrick, 336 S.W.2d 68 (Mo. 1960); Stewart v. Harris, 1967 OK 223, 434 P.2d 902 (Okla. 1967); Vidmar v. Sig-
mund, 192 Pa. Super. 355, 162 A.2d 15 (1960); Sisler v. Seeberger, 23 Wash. App. 612, 596 P.2d 1362 (Div. 3 1979).
A wrongful death action brought by a grandmother, as administratrix ad prosequendum of her deceased daughter on behalf of her grandson,
alleging that her daughter's surviving spouse murdered the daughter, or caused her death by gross and reckless conduct, was improperly
barred by the trial court on the basis of interspousal and intrafamilial immunity doctrines; the parental immunity doctrine is inapplicable in
situations where exercise of parental authority and adequacy of child care are not matters in issue. Small v. Rockfeld, 66 N.J. 231, 330 A.2d
335, 87 A.L.R.3d 829 (1974).
n2 Harlan Nat. Bank v. Gross, 346 S.W.2d 482 (Ky. 1961).
n3 Orefice v. Albert, 237 So. 2d 142 (Fla. 1970); McNeal v. Administrator of McNeal's Estate, 254 So. 2d 521 (Miss. 1971); Lewis v. Farm
Bureau Mut. Auto. Ins. Co., 243 N.C. 55, 89 S.E.2d 788 (1955); Gunn v. Rollings, 250 S.C. 302, 157 S.E.2d 590 (1967); Campbell v. Grut-
temeyer, 222 Tenn. 133, 432 S.W.2d 894 (1968).
7.
849 § 14[b].
Page 240

Parent and Child

§ 119 Gross negligence
Gross negligence is sometimes listed as one of the kinds of conduct for which a parent may be liable. n1 However, other
cases hold that gross negligence is not enough. n2 The act of driving while intoxicated, with the child as a passenger, for-
feits the immunity, on the ground that it amounts to a temporary abdication of parental responsibilities, the performance
of which the immunity is designed to encourage. n3
FOOTNOTES:
n1 Rodebaugh v. Grand Trunk Western R. Co., 4 Mich. App. 559, 145 N.W.2d 401 (1966).
n2 Strong v. Strong, 70 Nev. 290, 269 P.2d 265 (1954).
n3 Hoffman v. Tracy, 67 Wash. 2d 31, 406 P.2d 323 (1965).
849 § 13.
Page 241

Parent and Child

§ 120 Willful or malicious conduct
Generally, a minor's damage action against a parent or a person in loco parentis is maintainable where the injury or
death is intentional or results from willful misconduct or an evil mind, whether or not characterized as malice. n1 Never-
theless, certain cases have regarded the minor's action as not maintainable even though the matters complained of went
beyond the category of mere negligence. n2
FOOTNOTES:
n1 Emery v. Emery, 45 Cal. 2d 421, 289 P.2d 218 (1955) (applying Idaho law); Gillett v. Gillett, 168 Cal. App. 2d 102, 335 P.2d 736 (2d
Dist. 1959); Horton v. Reaves, 186 Colo. 149, 526 P.2d 304 (1974); Thomas v. Chicago Bd. of Ed., 77 Ill. 2d 165, 32 Ill. Dec. 308, 395
N.E.2d 538 (1979); Shell Oil Co. v. Ryckman, 43 Md. App. 1, 403 A.2d 379 (1979); Henderson v. Henderson, 11 Misc. 2d 449, 169
N.Y.S.2d 106 (Sup 1957); Oldman v. Bartshe, 480 P.2d 99 (Wyo. 1971).
Exception to abrogation of doctrine of parent-child immunity of special situations that involve the exercise of parental authority and custom-
ary child care was modified to permit recovery where the parent's inadequate supervision rises to the level of willful or wanton misconduct.
Foldi v. Jeffries, 93 N.J. 533, 461 A.2d 1145 (1983).
n2 Owens v. Auto Mut. Indemnity Co., 235 Ala. 9, 177 So. 133 (1937); Cook v. Cook, 232 Mo. App. 994, 124 S.W.2d 675 (1939); Maxey
v. Sauls, 242 S.C. 247, 130 S.E.2d 570 (1963).
SUPPLEMENT:
Cases
Asphyxiation by drowning constituted substantial bodily injury for purposes of statute prohibiting wanton or reckless
injury of child in prosecution of defendant whose child drowned after she left it unattended in bathtub, despite absence
of signs of external or internal trauma, as asphyxiation created protracted impairment of heart, lung, or brain function.
M.G.L.A. c. 265, § 13J(b). Com. v. Chapman, 433 Mass. 481, 744 N.E.2d 14 (2001).
849 § 12.
Page 242

Parent and Child

§ 121 Corporal punishment
The cases agree that neither a parent nor a person in loco parentis is ordinarily liable to an unemancipated minor child in
his charge for corporal punishment inflicted by way of discipline or correction. n1 Also, some of them appear to regard
the minor as not entitled to maintain a damage action in case of parental chastisement, even if the treatment received
was definitely cruel and abusive. n2 Others, however, uphold the minor's right to recover damages for abuse of the right
to chastise, but are not in agreement as what degree of abuse, or what parental motives or state of mind, are essential to
a recovery. n3
FOOTNOTES:
n1 Chastain v. Chastain, 50 Ga. App. 241, 177 S.E. 828 (1934); Treschman v. Treschman, 28 Ind. App. 206, 61 N.E. 961 (Div. 1 1901);
Rowe v. Rugg, 117 Iowa 606, 91 N.W. 903 (1902); Mahnke v. Moore, 197 Md. 61, 77 A.2d 923 (1951); Fortinberry v. Holmes, 89 Miss.
373, 42 So. 799 (1907); Cook v. Cook, 232 Mo. App. 994, 124 S.W.2d 675 (1939); Clasen v. Pruhs, 69 Neb. 278, 95 N.W. 640 (1903);
Small v. Morrison, 185 N.C. 577, 118 S.E. 12, 31 A.L.R. 1135 (1923); Steber v. Norris, 188 Wis. 366, 206 N.W. 173, 43 A.L.R. 501 (1925).
As to the limits of the right to chastise, see § 25.
n2 Chastain v. Chastain, 50 Ga. App. 241, 177 S.E. 828 (1934); Smith v. Smith, 81 Ind. App. 566, 142 N.E. 128 (Div. 1 1924); Cook v.
Cook, 232 Mo. App. 994, 124 S.W.2d 675 (1939); Small v. Morrison, 185 N.C. 577, 118 S.E. 12, 31 A.L.R. 1135 (1923).
n3 Treschman v. Treschman, 28 Ind. App. 206, 61 N.E. 961 (Div. 1 1901); Mahnke v. Moore, 197 Md. 61, 77 A.2d 923 (1951); Dix v. Mar-
tin, 171 Mo. App. 266, 157 S.W. 133 (1913); Clasen v. Pruhs, 69 Neb. 278, 95 N.W. 640 (1903); Dunlap v. Dunlap, 84 N.H. 352, 150 A.
905, 71 A.L.R. 1055 (1930); Steber v. Norris, 188 Wis. 366, 206 N.W. 173, 43 A.L.R. 501 (1925).
Page 243

Parent and Child

B. Tort Actions Between Parents or Against Third Persons
1. In General
§ 122 Generally; alienation of child's affections
The parent's right to the custody and companionship, and still more clearly his right to the services and earnings, of his
minor child are valuable rights, constituting a species of property in the parent a wrongful injury to which by a third per-
son will support an action by him. n1
Generally, a parent has no right of action for alienation of his child's affections, n2 although there is authority to the con-
trary. n3 In an action for another tort, loss of the child's affections does not, in itself, constitute an element of damage for
which recovery is permissible. n4 It has generally been deemed permissible, however, in an action for another tort, to
consider any resulting loss of the child's affections for the purpose of determining the mental or physical effect of such
loss upon the parent. n5 The recovery is for the parent's resulting suffering, not for the loss of the child's affections. Such
recovery has been said to be permissible in an action for abduction of a child, n6 in an action for conspiracy to alienate
the child's affections from the parent, n7 and in an action for libel where the child was alleged to have been placed in fear
of the parent by a statement that the parent was insane. n8
FOOTNOTES:
n1 Pyle v. Waechter, 202 Iowa 695, 210 N.W. 926, 49 A.L.R. 557 (1926); Lessard v. Great Falls Woolen Co., 83 N.H. 576, 145 A. 782, 63
A.L.R. 1142 (1929); Tidd v. Skinner, 225 N.Y. 422, 122 N.E. 247, 3 A.L.R. 1145 (1919).
n2 Stevens v. Redwing, 146 F.3d 538 (8th Cir. 1998) (applying Missouri law); Orlando v. Alamo, 646 F.2d 1288 (8th Cir. 1981); Hyman v.
Moldovan, 166 Ga. App. 891, 305 S.E.2d 648 (1983); Pyle v. Waechter, 202 Iowa 695, 210 N.W. 926, 49 A.L.R. 557 (1926); Ronan v.
Briggs, 351 Mass. 700, 220 N.E.2d 909 (1966); McGrady v. Rosenbaum, 62 Misc. 2d 182, 308 N.Y.S.2d 181 (Sup 1970), judgment aff'd, 37
A.D.2d 917, 324 N.Y.S.2d 876 (1st Dep't 1971); Edwards v. Edwards, 43 N.C. App. 296, 259 S.E.2d 11 (1979).
One who, without more, alienates from its parent the affections of a child, whether a minor or of full age, is not liable to the child's parent.
Restatement Second, Torts § 699.
n3 Strode v. Gleason, 9 Wash. App. 13, 510 P.2d 250, 60 A.L.R.3d 924 (Div. 1 1973).
n4 Montgomery v. Crum, 199 Ind. 660, 161 N.E. 251 (1928).
n5 Montgomery v. Crum, 199 Ind. 660, 161 N.E. 251 (1928); Bishop v. New York Times Co., 233 N.Y. 446, 135 N.E. 845 (1922); Little v.
Holmes, 181 N.C. 413, 107 S.E. 577 (1921).
n6 Montgomery v. Crum, 199 Ind. 660, 161 N.E. 251 (1928); Little v. Holmes, 181 N.C. 413, 107 S.E. 577 (1921).
n7 Montgomery v. Crum, 199 Ind. 660, 161 N.E. 251 (1928).

Page 244
n8 Bishop v. New York Times Co., 233 N.Y. 446, 135 N.E. 845 (1922).
SUPPLEMENT:
Cases
Parents' claims against therapists, who had treated their adult daughter, for loss of relationship with daughter, in which
parents alleged that therapists had implanted false memories of sexual and physical abuse in daughter, were properly
construed as claims for loss of society and companionship of an adult child, which were barred. Johnson v. Rogers
Memorial Hosp., Inc., 244 Wis. 2d 364, 2001 WI 68, 627 N.W.2d 890 (2001).
REFERENCE: West's Key Number Digest, Child Custody [westkey]965 to 979

West's Key Number Digest, Parent and Child [westkey]5, 7, 7.5, 12, 13.5, 16
Right of child or parent to recover for alienation of other's affections, 60 A.L.R. 3d 931.
Page 245

Parent and Child

1. In General
§ 123 Enticement or abduction of child; interference with custody
A parent may recover for enticement or abduction of a child whenever he can show that this had the effect of depriving
him of the child's services. n1 Under this rule the parent has no right of action where the child is so young as to be inca-
pable of rendering any services to the parent. n2 However, some jurisdictions have definitely repudiated the view that
loss of services, actual or constructive, must be shown in order to sustain an action by a parent for the abduction or en-
ticement of his child. n3
There must be some affirmative act of solicitation in order to render one liable to an action for enticement of a minor
child from a parent's control. n4 After a child has voluntarily left the father's service, he cannot be enticed away from it, n5
although it is not necessary, in order to sustain an action for abduction or enticement, that the child be in his immediate
custody, so long as the parent has the legal right to recall the child into his custody and service. n6 Abduction may occur
under some circumstances even where the defendant has possession of the child at the time. n7
Some jurisdictions recognize that where there is an intentional interference with a parent's custody of his child by the
other parent, the custodial parent is entitled to a remedy that completely compensates him. n8 Although not every trans-
portation of a child by one parent causing the other some loss of custody and association with the child would be
wrongful, it has been held that one parent commits a legal wrong if he spirits the child away and conceals it, leaving the
other parent utterly bereft of the means of enjoying any of the privileges of parenthood. n9
FOOTNOTES:
n1 Armstrong v. McDonald, 39 Ala. App. 485, 103 So. 2d 818 (1958); Surina v. Lucey, 168 Cal. App. 3d 539, 214 Cal. Rptr. 509 (2d Dist.
1985); Shoemaker v. Jackson, 128 Iowa 488, 104 N.W. 503 (1905); Meredith v. Buster, 209 Ky. 623, 273 S.W. 454 (1925); Tidd v. Skinner,
225 N.Y. 422, 122 N.E. 247, 3 A.L.R. 1145 (1919); Howell v. Howell, 162 N.C. 283, 78 S.E. 222 (1913); Magnuson v. O'Dea, 75 Wash.
574, 135 P. 640 (1913).
One who, with knowledge that the parent does not consent, abducts or otherwise compels or induces a minor child to leave a parent legally
entitled to its custody or not to return to the parent after it has been left him, is subject to liability to the parent. Restatement Second, Torts §
700.
n2 Pickle v. Page, 252 N.Y. 474, 169 N.E. 650, 72 A.L.R. 842 (1930).
n3 Surina v. Lucey, 168 Cal. App. 3d 539, 214 Cal. Rptr. 509 (2d Dist. 1985); Pickle v. Page, 252 N.Y. 474, 169 N.E. 650, 72 A.L.R. 842
(1930); Howell v. Howell, 162 N.C. 283, 78 S.E. 222 (1913).
n4 Cockrell v. State, 71 Tex. Crim. 543, 160 S.W. 343 (1913).
n5 Kenney v. Baltimore & O.R. Co., 101 Md. 490, 61 A. 581 (1905).
Page 246
n6 Howell v. Howell, 162 N.C. 283, 78 S.E. 222 (1913).
n7 Howell v. Howell, 162 N.C. 283, 78 S.E. 222 (1913).
n8 DiRuggiero v. Rodgers, 743 F.2d 1009 (3d Cir. 1984) (applying New Jersey law); Lloyd v. Loeffler, 694 F.2d 489 (7th Cir. 1982) (ap-
plying Wisconsin law); Plante v. Engel, 124 N.H. 213, 469 A.2d 1299, 49 A.L.R.4th 1 (1983).
As to abduction or kidnapping by a parent or one in loco parentis, generally, see 1 Am. Jur. 2d, Abduction and Kidnapping § 34 to 37.
n9 Rosefield v. Rosefield, 221 Cal. App. 2d 431, 34 Cal. Rptr. 479 (1st Dist. 1963).
SUPPLEMENT:
Cases
Parents of adult son who was fatally shot by law enforcement officer had no constitutional right under due process
clause to recover for the loss of society and companionship of son, absent state action directed at interfering with par-
ent-child relationship; overruling Bell v. City of Milwaukee, 746 F.2d 1205. Russ v. Watts, 414 F.3d 783 (7th Cir.
2005), petition for cert. filed, 74 U.S.L.W. 3308 (U.S. Nov. 7, 2005)
Father, as a parent awarded visitation rights with child, stated claim against mother and maternal grandmother for tor-
tious interference with parent-child relations; interference with father's parental rights by mother and grandmother, who,
without father's consent, allegedly abducted the children, fled to Egypt, and refused to return the children to father, was
substantial, as father had not seen child with whom he had visitation rights in over six years. Khalifa v. Shannon, 404
Md. 107, 945 A.2d 1244 (2008).
Father, who had legal custody of one son and visitation rights as to second son, stated claim of tortious interference with
parent-child relations against mother and maternal grandmother, who, without father's consent, allegedly abducted the
children, fled to Egypt, and refused to return the children to father. Khalifa v. Shannon, 404 Md. 107, 945 A.2d 1244
(2008).

Liability of legal or natural parent, or one who aids and abets, for damages resulting from abduction of own child, 49
A.L.R. 4th 7.
Page 247

Parent and Child

1. In General
§ 124 Action by child
A child generally has no right of action for loss of support, training, parental attention and the like, against a third per-
son negligently injuring his parent, n1 though there is authority to the contrary. n2 Statutes have conferred on the child a
right of action under some circumstances for loss of his parent's support resulting from the wrongful act of another. Il-
lustrative of this type of action or proceeding are the statutory action for the death of a parent, brought either by the
child directly or by the personal representative for his benefit; n3 the action, under civil damage acts, for the sale of intox-
icating liquor to the parent; n4 and proceedings for the benefit of the child as a dependent under workers' compensation
acts. n5
A difference of opinion exists as to whether a child has a cause of action against a third party causing the alienation of
his parent's affections from him, with some decisions upholding such a right of action n6 and others denying it. n7
A parent is under no legal duty to his child to preserve his own chastity, and a child has no right of action against a third
person for criminal conversation with his parent. n8 A child has a cause of action against her grandfather for depriving
her of the society, care, protection, and affection of her mother by participating with the father in her abduction and con-
cealment. n9
FOOTNOTES:
n1 Russell v. Salem Transp. Co., Inc., 61 N.J. 502, 295 A.2d 862, 69 A.L.R.3d 522 (1972); Borer v. American Airlines, Inc., 19 Cal. 3d
441, 138 Cal. Rptr. 302, 563 P.2d 858 (1977); Zorzos v. Rosen By and Through Rosen, 467 So. 2d 305 (Fla. 1985); Block v. Pielet Bros.
Scrap and Metal, Inc., 119 Ill. App. 3d 983, 75 Ill. Dec. 515, 457 N.E.2d 509 (1st Dist. 1983); Schmeck v. City of Shawnee, 231 Kan. 588,
647 P.2d 1263 (1982); Trioli v. Town of Sudbury, 15 Mass. App. Ct. 394, 446 N.E.2d 92 (1983); Salin v. Kloempken, 322 N.W.2d 736
(Minn. 1982); General Elec. Co. v. Bush, 88 Nev. 360, 498 P.2d 366 (1972).
One who by reason of his tortious conduct is liable to a parent for illness or other bodily harm is not liable to a minor child for resulting loss
of parental support and care. Restatement Second, Torts § 707A.
n2 Audubon-Exira Ready Mix, Inc. v. Illinois Cent. Gulf R. Co., 335 N.W.2d 148 (Iowa 1983); Ferriter v. Daniel O'Connell's Sons, Inc.,
381 Mass. 507, 413 N.E.2d 690, 11 A.L.R.4th 518 (1980); Berger v. Weber, 411 Mich. 1, 303 N.W.2d 424 (1981); Ueland v. Reynolds Met-
als Co., 103 Wash. 2d 131, 691 P.2d 190 (1984); Theama by Bichler v. City of Kenosha, 117 Wis. 2d 508, 344 N.W.2d 513 (1984).
n3 22A Am. Jur. 2d, Death §§ 98 to 104.
n4 45 Am. Jur. 2d, Intoxicating Liquors § 525.
n5 82 Am. Jur. 2d, Workers' Compensation §§ 207 to 214.

Page 248
n6 Koskela v. Martin, 91 Ill. App. 3d 568, 47 Ill. Dec. 32, 414 N.E.2d 1148 (1st Dist. 1980); Miller v. Monsen, 228 Minn. 400, 37 N.W.2d
543 (1949).
n7 McMillan v. Taylor, 160 F.2d 221 (App. D.C. 1946); Mode v. Barnett, 235 Ark. 641, 361 S.W.2d 525 (1962); Rudley v. Tobias, 84 Cal.
App. 2d 454, 190 P.2d 984 (2d Dist. 1948); Coulter v. Coulter, 73 Colo. 144, 214 P. 400 (1923); Taylor v. Keefe, 134 Conn. 156, 56 A.2d
768 (1947); Hunt v. Chang, 60 Haw. 608, 594 P.2d 118 (1979); Wheeler v. Luhman, 305 N.W.2d 466 (Iowa 1981); Hale v. Buckner, 615
S.W.2d 97 (Mo. Ct. App. E.D. 1981); Morrow v. Yannantuono, 152 Misc. 134, 273 N.Y.S. 912 (Sup 1934); Henson v. Thomas, 231 N.C.
173, 56 S.E.2d 432, 12 A.L.R.2d 1171 (1949); Nash v. Baker, 1974 OK CIV APP 19, 522 P.2d 1335 (Okla. Ct. App. Div. 1 1974); Garza v.
Garza, 209 S.W.2d 1012 (Tex. Civ. App. Eastland 1948).
One who, without more, alienates from a child the affections of a parent, is not liable to the child. Restatement Second, Torts § 702A.
n8 Henson v. Thomas, 231 N.C. 173, 56 S.E.2d 432, 12 A.L.R.2d 1171 (1949).
n9 Rosefield v. Rosefield, 221 Cal. App. 2d 431, 34 Cal. Rptr. 479 (1st Dist. 1963).
SUPPLEMENT:
Cases
Under Ohio law, minor child has cause of action for loss of parental consortium against third-party tortfeasor who negli-
gently or intentionally causes physical injury to child's parent. Bishop v. Oakstone Academy, 477 F. Supp. 2d 876, 218
Ed. Law Rep. 429 (S.D. Ohio 2007).
Apart from wrongful death actions, a child may not maintain an action for loss of parental consortium when the parent
is negligently injured by a third person. Forte v. Connerwood Healthcare, Inc., 745 N.E.2d 796 (Ind. 2001).

Adult Child's Right of Action for Loss of Parental Consortium, 12 A.L.R.6th 241
Child's right of action for loss of support, training, parental attention, or the like, against a third person negligently injur-
ing parent, 11 A.L.R. 4th 549.
Right of child or parent to recover for alienation of other's affections, 60 A.L.R. 3d 931 § 3.
Proof of Damages in Wrongful Death or Survival Action, 25 Am. Jur. Proof of Facts 3d 251
Wife's Damages for Loss of Consortium, 10 Am. Jur. Proof of Facts 3d 97
Loss of Consortium: Parent-Child Relationships, 27 Am. Jur. Proof of Facts 2d 393
Forensic Economics-Death of Person Not in Labor Force, 14 Am. Jur. Proof of Facts 2d 311
Am. Jur. Pleading and Practice Forms, Automobiles and Highway Traffic §§ 1158, 1159
Am. Jur. Pleading and Practice Forms, Death §§ 17, 65, 66, 132 to 136
Complaint, petition, or declaration -- By minor children -- For alienation of mother's affections 19 Am. Jur. Pleading
and Practice Forms, Parent and Child § 183.
Agosto and Rodriguez, What About the Parents?Can the Parents of a Non-Fatally-Injured Child Recover Damages for
Loss of Consortium?, 66 Tex. B.J. 396 (2003)
Bailey, Flawed Justice: Limitation of Parental Remedies for the Loss of Consortium of Adult Children, 27 Seattle U. L.
Rev. 941 (2004)
Buening, Comment The Value of a Parent-Child Relationship: Should Adult Children in Wisconsin Be Permitted to Re-
cover For Loss of Companionship of a Parent Who has Died at the Hands of a Nursing Home?, 86 Marq. L. Rev. 541
(2002)
Kaleem, Comment, Towards the Recognition of a Parental Right of Companionship in Adult Children Under the Four-
teenth Amendment Substantive Due Process Clause, 35 Seton Hall L. Rev. 1121 (2005)
Lilly, Casenotes, Loss of Consortium -- Texas Supreme Court Declines to Recognize a Parent's Loss of Consortium
Claim Resulting from a Non-Fatal Injury to Child, 57 SMU L. Rev. 489 (2004)
Page 249
Lind, Valuing Relationships: The Role of Damages for Loss of Society, 35 N.M. L. Rev. 301 (2005)
Szarwark, Recovery for Loss of Parental Consortium in Non-Wrongful Death Cases, 25 Whittier L. Rev. 3 (2003)
Page 250

Parent and Child

1. In General
§ 125 Against third person for act of parent
In jurisdictions where a parent is not liable to his unemancipated minor child for negligence, a child has no cause of ac-
tion against his parent's employer when injured by the negligence of his parent acting within the scope of his employ-
ment. n1 This result has been reached even where the employer was himself guilty of a negligent omission which contrib-
uted to the accident, but where the parent's positive negligence was the primary operative cause and the employer would
therefore have had a right of recovery over against the parent. n2 Generally, however, the parent's immunity is personal
and does not bar an action against the employer. n3 The rule that an employer cannot avail himself of his employee's
parental immunity has been said to apply a fortiori where the employer is engaged in a business involving special duties
to the public, as in the case of a common carrier. n4
A child injured by his parent's negligent driving of an automobile cannot sue the owner of the automobile, since the lat-
ter would have a right of action over against the parent and the result would be to allow an indirect recovery against the
parent. n5 However, in an airplane case in another jurisdiction the opposite result was reached on the ground that the pol-
icy behind the parental immunity rule does not require protection of persons outside the family who would otherwise be
liable. n6
A child injured by his parent's negligence in the course of the latter's partnership activities has no cause of action against
the parent's non-negligent copartners. n7 However, there is authority that a child may bring an action against a partner-
ship of which the minor's father was a member for injuries sustained through the father's negligence where the injuries
are alleged to have occurred in the conduct of business activities wholly outside the sphere of parental duties and re-
sponsibilities. n8
FOOTNOTES:
n1 Myers v. Tranquility Irr. Dist., 26 Cal. App. 2d 385, 79 P.2d 419 (4th Dist. 1938); Pullen v. Novak, 169 Neb. 211, 99 N.W.2d 16 (1959);
Stewart v. Craig, 208 Tenn. 212, 344 S.W.2d 761 (1961).
n2 Graham v. Miller, 182 Tenn. 434, 187 S.W.2d 622, 162 A.L.R. 571 (1945).
n3 Radelicki v. Travis, 39 N.J. Super. 263, 120 A.2d 774 (App. Div. 1956); Mi-Lady Cleaners v. McDaniel, 235 Ala. 469, 179 So. 908, 116
A.L.R. 639 (1938); Chase v. New Haven Waste Material Corp., 111 Conn. 377, 150 A. 107, 68 A.L.R. 1497 (1930); Kemp v. Rockland
Leasing, Inc., 51 Misc. 2d 1073, 274 N.Y.S.2d 952 (Sup 1966); Wright v. Wright, 229 N.C. 503, 50 S.E.2d 540 (1948); Hooper By and
Through Hooper v. Clements Food Co., 1985 OK 6, 694 P.2d 943 (Okla. 1985); Farley v. M M Cattle Co., 529 S.W.2d 751 (Tex. 1975).
n4 Wright v. Wright, 229 N.C. 503, 50 S.E.2d 540 (1948).
n5 Ownby v. Kleyhammer, 194 Tenn. 109, 250 S.W.2d 37 (1952).

Page 251
n6 Orefice v. Albert, 237 So. 2d 142 (Fla. 1970).
n7 Belleson v. Skilbeck, 185 Minn. 537, 242 N.W. 1 (1932).
n8 Felderhoff v. Felderhoff, 473 S.W.2d 928 (Tex. 1971).

West's Key Number Digest, Parent and Child [westkey]7.5, 12
Liability of employer for injury to wife or child of employee through latter's negligence, 1 A.L.R. 3d 677 §§ 8, 9.
Page 252

Parent and Child

2. Tort Actions Against Child
a. In General
§ 126 Generally
Although, where a child is injured by a tort committed upon him or her, the parent has no right to sue for the injury as
such, this right of action being in the child and enforceable only in an action brought for his benefit by a guardian or
next friend, n1 it is universally recognized that the parent may maintain an action in his own right for any impairment of
his parental rights caused by the injury. This right of action includes two principal elements: the parent's loss of the
child's services and earnings, present and prospective to the end of the minority, and the parent's expenses incurred in
effecting or attempting to effect a cure. n2 Parents' expenses incurred on behalf of their adult child following an accident
are not recoverable directly from the tortfeasor or his liability insurers, but are owed to them by the child. n3
In some jurisdictions, it is expressly provided by statute that a parent may maintain an action for injury to his child.
Such a statute generally is held merely to codify the common-law right of the parent to maintain an action for the loss of
the services of his child, although there is also authority to the effect that it enlarges such right so as to permit the parent
to bring an action, as trustee for the child, to recover for the injury itself. n4
There is authority that a parent has no cause of action in negligence to recover damages for loss of filial consortium, n5
though there is authority to the contrary. n6
FOOTNOTES:
n1 42 Am. Jur. 2d, Infants § 156
n2 Smith v. Richardson, 277 Ala. 389, 171 So. 2d 96 (1965); Parrott v. Mallett, 262 Ark. 525, 558 S.W.2d 152 (1977); Baxter v. Superior
Court, 19 Cal. 3d 461, 138 Cal. Rptr. 315, 563 P.2d 871 (1977); Pawnee Farmers' Elevator Co. v. Powell, 76 Colo. 1, 227 P. 836, 37 A.L.R.
6 (1924); Shiels v. Audette, 119 Conn. 75, 174 A. 323, 94 A.L.R. 1206 (1934); Wilkie v. Roberts, 91 Fla. 1064, 109 So. 225 (1926); King v.
Southern Ry. Co., 126 Ga. 794, 55 S.E. 965 (1906); Thompson v. Town of Ft. Branch, 204 Ind. 152, 178 N.E. 440, 82 A.L.R. 1413 (1931);
Stone v. City of Pleasanton, 115 Kan. 476, 223 P. 303 (1924); Meers v. McDowell, 110 Ky. 926, 23 Ky. L. Rptr. 461, 62 S.W. 1013 (1901);
King v. Viscoloid Co., 219 Mass. 420, 106 N.E. 988 (1914); Rohm v. Stroud, 386 Mich. 693, 194 N.W.2d 307 (1972); Keller v. City of St.
Louis, 152 Mo. 596, 54 S.W. 438 (1899); Lessard v. Great Falls Woolen Co., 83 N.H. 576, 145 A. 782, 63 A.L.R. 1142 (1929); Flippin v.
Jarrell, 301 N.C. 727, 274 S.E.2d 228 (1981); McGarr v. National & Providence Worsted Mills, 24 R.I. 447, 53 A. 320 (1902); Dudley v.
Phillips, 218 Tenn. 648, 405 S.W.2d 468, 21 A.L.R.3d 462 (1966); Richmond v. Campbell, 148 W. Va. 595, 136 S.E.2d 877 (1964); Korth
by Lukas v. American Family Ins. Co., 115 Wis. 2d 326, 340 N.W.2d 494 (1983).
Father could maintain derivative action for medical, hospital, and nursing expenses incurred by his son whom the father was supporting even
though the son was over 18 years of age at the time. Clough v. Board of Ed. of Spencerport Central School Dist., Monroe County, 56 A.D.2d
233, 392 N.Y.S.2d 170 (4th Dep't 1977).
As to recovery by one in loco parentis, see § 9.

Page 253
One who by reason of his tortious conduct is liable to a minor child for illness or other bodily harm is subject to liability to (a) the parent
who is entitled to the child's services for any resulting loss of services or ability to render services, and to (b) the parent who is under a legal
duty to furnish medical treatment for any expenses reasonably incurred or likely to be incurred for the treatment during the child's minority.
Restatement Second, Torts § 703.
One who unlawfully sells or otherwise supplies to a minor child a habit-forming drug without its parent's consent and with knowledge that it
will be used by the child in a way to cause him harm, is subject to liability to (a) the parent who is entitled to the child's services for any re-
sulting loss of services or ability to render services, and to (b) the parent who is under a legal duty to furnish medical treatment for expenses
reasonably incurred or likely to be incurred for the child's treatment during its minority. Restatement Second, Torts § 705.
n3 Motorists Mut. Ins. Co. v. Glass, 996 S.W.2d 437 (Ky. 1997), as modified, (Feb. 18, 1999).
n4 Pacheco v. Delgardo, 46 Ariz. 401, 52 P.2d 479, 103 A.L.R. 494 (1935).
n5 Baxter v. Superior Court, 19 Cal. 3d 461, 138 Cal. Rptr. 315, 563 P.2d 871 (1977).
n6 Yordon v. Savage, 279 So. 2d 844 (Fla. 1973); Harbeson v. Parke-Davis, Inc., 98 Wash. 2d 460, 656 P.2d 483 (1983); Shockley v. Prier,
66 Wis. 2d 394, 225 N.W.2d 495 (1975).

What items of damages on account of personal injury to infant belong to him, and what to parent, 32 A.L.R. 2d 1060.
Page 254

Parent and Child

a. In General
§ 127 Tort not involving loss of services
The courts quite consistently refuse to permit any recovery in actions by parents for injuries to their children where the
nature of the tort is such that it does not ordinarily involve any loss of services. In the absence of any showing of loss of
services, a parent cannot recover for the defamation of his child. n1 Likewise, no cause of action lies in favor of the par-
ent for the malicious prosecution or false imprisonment of his child, n2 although recovery will be allowed where there is
an actual loss of the services of the child. n3
FOOTNOTES:
n1 Hurst v. Goodwin, 114 Ga. 585, 40 S.E. 764 (1902); Pattison v. Gulf Bag Co., 116 La. 963, 41 So. 224 (1906).
n2 Sperier v. Ott, 116 La. 1087, 41 So. 323 (1906).
n3 Rogers v. Smith, 17 Ind. 323, 1861 WL 2838 (1861).

Page 255

Parent and Child

a. In General
§ 128 Injury resulting in death
Where the death of a child by a tort is not instantaneous, the parent may undoubtedly recover, without the aid of any
statute, for loss of services and for medical and other expenses up to the time of the death. n1 This right of action may be
taken away by a death statute enabling the parent, through a personal representative, to recover the value of the services
of which the parent is deprived by the death. n2 If death is instantaneous, however, the parent has no cause of action at
common law, since the law does not permit recovery of damages for loss of services from the time of death. n3 The only
remedy available under such circumstances is the statutory action for wrongful death. n4
Where injuries to the child have resulted in its death, some courts have allowed recovery for the funeral expenses, even
in the absence of any statute, n5 while other courts have not allowed recovery. n6
FOOTNOTES:
n1 Brink v. Wabash R. Co., 160 Mo. 87, 60 S.W. 1058 (1901).
n2 Christenbury v. Hedrick, 32 N.C. App. 708, 234 S.E.2d 3 (1977).
n3 Panama R. Co. v. Rock, 266 U.S. 209, 45 S. Ct. 58, 69 L. Ed. 250 (1924); Carnego v. Crescent Coal Co., 164 Iowa 552, 146 N.W. 38
(1914); Chaloux v. International Paper Co., 75 N.H. 281, 73 A. 301 (1909); Smith v. Tucker, 151 Tenn. 347, 270 S.W. 66, 41 A.L.R. 830
(1925); Stevenson v. W.M. Ritter Lumber Co., 108 Va. 575, 62 S.E. 351 (1908).
n4 22A Am. Jur. 2d, Death § 108.
n5 Ottley v. Hill, 21 Utah 2d 396, 446 P.2d 301 (1968).
As to the recovery for burial expenses under wrongful death statutes, see 22A Am. Jur. 2d, Death § 242.
n6 Carnego v. Crescent Coal Co., 164 Iowa 552, 146 N.W. 38 (1914); Christenbury v. Hedrick, 32 N.C. App. 708, 234 S.E.2d 3 (1977).
SUPPLEMENT:
Cases
In an action for wrongful death of a child, recoverable damages include parental loss of the child's society, comfort, and
companionship. Brandon ex rel. Estate of Brandon v. County of Richardson, 261 Neb. 636, 624 N.W.2d 604 (2001).
Page 256
Evidence was sufficient to support award of § d150,000 in wrongful death action to victim's parents for loss of compan-
ionship and society and mental anguish, where parents had enjoyed warm and frequent contacts with victim and her
children and victim was friend of mother, who could barely stand to think about victim's death eight years after its oc-
currence. Page v. Fulton, 30 S.W.3d 61 (Tex. App. Beaumont 2000).

Parent's desertion, abandonment, or failure to support minor child as affecting right or measure of recovery for wrongful
death of child, 53 A.L.R. 3d 566.
Common-law recovery of funeral expenses from tortfeasor by husband, wife, or other relative of deceased, 3 A.L.R. 2d
932 § 4.
Page 257

Parent and Child

a. In General
§ 129 Liability of child's employer
A parent has the same right of action against an employer for injury to his child resulting in the loss of its services as he
has against any other tortfeasor. However, unless the employment is without his consent, n1 he cannot recover without
showing that the employer was guilty of some fault, such as negligence, giving rise to a cause of action in favor of the
child. If the child has no cause of action, neither has the parent. n2
Whether the right of action which a parent has at common law against an employer for injury to his child is destroyed
by the enactment of a workers' compensation act depends largely upon the provisions of the act and the interpretation
given to it in the particular jurisdiction. In some jurisdictions, the act is construed as superseding the parent's common-
law right of action as well as that of the child's; n3 while in others, the courts have taken the position that in the absence
of an express provision to that effect, the act ought not to be construed as depriving the parent of his right of action. n4
FOOTNOTES:
n1 § 130.
n2 Harris v. A.J. Spencer Lumber Co., Inc., 185 Ala. 648, 64 So. 557 (1914); King v. Floding, 18 Ga. App. 280, 89 S.E. 451 (1916); Ballard
v. Smith, 183 Ky. 705, 210 S.W. 489 (1919); Berry v. Majestic Milling Co., 210 S.W. 434 (Mo. Ct. App. 1919); Pecos & N.T. Ry. Co. v.
Blasengame, 42 Tex. Civ. App. 66, 93 S.W. 187 (1906).
As to an employer's liability to youthful employees, see 27 Am. Jur. 2d, Employment Relationship §§ 269 to 275
One who, without the parent's consent or acquiescence to the particular risk involved, employs a minor child in an occupation which in con-
sideration of the age and experience of the minor is dangerous to it, is subject to liability to (a) that parent who is entitled to the child's ser-
vices for the loss of its services or ability to render services resulting from illness or other bodily harm sustained by the child in the course of
the dangerous employment, and (b) that parent who is under a legal duty to furnish medical treatment for expenses reasonably incurred or
likely to be incurred for the treatment of the child during its minority. The rule stated in subsection (1) is applicable although the employer of
the child is not liable to the child for the harm sustained by it in the course of the employment. Restatement Second, Torts § 707.
n3 Griggs v. Zimmerman, 50 Ga. App. 24, 177 S.E. 86 (1934); Adkins v. Hope Engineering & Supply Co., 81 W. Va. 449, 94 S.E. 506
(1917).
n4 King v. Viscoloid Co., 219 Mass. 420, 106 N.E. 988 (1914); Roxana Petroleum Co. v. Cope, 1928 OK 442, 132 Okla. 152, 269 P. 1084,
60 A.L.R. 837 (1928).

Page 258

Page 259

Parent and Child

a. In General
§ 130 Employment without parent's consent
A person who employs a minor without a parent's consent, and requires the minor to do dangerous work in the perfor-
mance of which he is injured, commits an actionable wrong, for which the employer is liable to the parent, although
there is no evidence of negligence on the part of the employer. The wrong inherent in the employment makes proof of a
subsequent wrong, as by negligence, unnecessary. The loss of the service is the gist of the action. n1 Knowledge of the
minority of a child, employed without the parent's consent, is essential to the maintenance of the action. This knowledge
may be shown by circumstantial evidence. n2 The parent's right of action is independent of any right of the child to an
award under the workers' compensation law. n3
The parent's consent may be implied as well as express; and if the minor is employed on a continuous job, and the father
permits him to continue without objection, his consent will be implied. n4 So, the consent may be given after the child
has been employed. n5 Mere knowledge on the part of the parent of the danger of the work the child is engaged in will
not preclude a recovery, unless accompanied by a failure to protest or use due diligence to protest to the employer. n6
Where the parent consents to the employment of his child to do a certain kind of work, the employer is liable to the par-
ent for injuries sustained by the child in the performance of another and more dangerous kind of work required by the
employer. n7 The employer may also be liable for an injury resulting, not from the ordinary risks of the employment, but
from the employer's negligence, as in the furnishing of defective equipment. n8
The most frequent use of the rule permitting recovery by the parent for injury to a child employed without his consent is
as a rebuttal to the defense of contributory negligence or the fellow servant rule. The employer, by wrongfully employ-
ing the minor without his parent's consent, assumes all the risk incident to the service; and the negligence of the minor,
or his assumption of the risk, is no bar to recovery. n9 Nor is the fellow servant rule pertinent, since the liability of the
employer rests on the original wrong, and not on any subsequent negligence. n10
FOOTNOTES:
n1 Hendrickson v. Louisville & N. Ry. Co., 137 Ky. 562, 126 S.W. 117 (1910); Seglinski v. Baltimore Copper Smelting & Rolling Co., 149
Md. 541, 131 A. 774 (1926); Berry v. Majestic Milling Co., 210 S.W. 434 (Mo. Ct. App. 1919); Haynie v. North Carolina Elec. Power Co.,
157 N.C. 503, 73 S.E. 198 (1911).
n2 Hendrickson v. Louisville & N. Ry. Co., 137 Ky. 562, 126 S.W. 117 (1910); Seglinski v. Baltimore Copper Smelting & Rolling Co., 149
Md. 541, 131 A. 774 (1926).
Page 260
n4 Gulf & S.I.R. Co. v. Sullivan, 155 Miss. 1, 119 So. 501, 62 A.L.R. 191 (1928).
n5 Gulf & S.I.R. Co. v. Sullivan, 155 Miss. 1, 119 So. 501, 62 A.L.R. 191 (1928).
n6 Sjoberg v. White, 119 Utah 562, 230 P.2d 331 (1951).
n7 Seglinski v. Baltimore Copper Smelting & Rolling Co., 149 Md. 541, 131 A. 774 (1926); Haynie v. North Carolina Elec. Power Co., 157
N.C. 503, 73 S.E. 198 (1911).
n8 Sjoberg v. White, 119 Utah 562, 230 P.2d 331 (1951).
n9 Hendrickson v. Louisville & N. Ry. Co., 137 Ky. 562, 126 S.W. 117 (1910); Haynie v. North Carolina Elec. Power Co., 157 N.C. 503,
73 S.E. 198 (1911).
n10 Hendrickson v. Louisville & N. Ry. Co., 137 Ky. 562, 126 S.W. 117 (1910).

Page 261

Parent and Child

a. In General
§ 131 Employment in violation of statute
An action for injury to, or the death of, one who has been employed in violation of a child labor statute is not maintain-
able for the benefit of the parent, where the only ground for holding the employer responsible is the unlawful employ-
ment, and the parent consented to the employment, n1 although there is authority holding the employer liable even where
the parent not only consented to the unlawful employment but misrepresented the child's age to the employer. n2 The em-
ployer is liable where he has been guilty of acts or omissions apart from the fact of the unlawful employment, for in
such a case the consent of the parent cannot be said to have been the proximate cause of the injury. n3
Violation of a statute requiring the maintenance of safety devices has been held to sustain an action by a parent against
an employer for loss of the services of his child, n4 although the opposite conclusion has also been reached upon the
ground that such a statute is for the personal benefit of the employee only. n5
FOOTNOTES:
n1 Newton v. Illinois Oil Co., 316 Ill. 416, 147 N.E. 465, 40 A.L.R. 1200 (1925); Hetzel v. Wasson Piston Ring Co., 89 N.J.L. 205, 98 A.
308 (N.J. Ct. Err. & App. 1916); Swope v. Keystone Coal & Coke Co., 78 W. Va. 517, 89 S.E. 284 (1916).
n2 Dusha v. Virginia & Rainy Lake Co., 145 Minn. 171, 176 N.W. 482, 23 A.L.R. 632 (1920).
n3 Dickinson v. Stuart Colliery Co., 71 W. Va. 325, 76 S.E. 654 (1912).
n4 Henry v. Missouri, K & T. Ry. Co., 98 Kan. 567, 158 P. 857 (1916).
n5 Gibson v. Kansas City Packing Box Co., 85 Kan. 346, 116 P. 502 (1911).

Page 262

Parent and Child

b. Damages
§ 132 Generally
A parent's right of action for injury to his child is based principally upon his loss of the child's services and the expenses
incurred by him in connection with the injury. The right to recover damages for the injury itself, as distinguished from
the incidental loss and expense caused thereby, belongs to the child, and is no item of damage for which the parent can
recover. n1
Generally a parent is not entitled to recover for mental distress and anxiety on account of an injury to his child, although
the opposite rule prevails where the injury is a willful or malicious one. n2 Loss of the society and companionship of the
child cannot be considered as an element in fixing the damages recoverable by a parent for an injury to the child, ac-
cording to some cases, n3 though there is authority to the contrary. n4
Historically, most jurisdictions which addressed the question whether the parents of a negligently injured child could re-
cover damages for loss of that child's consortium declined to recognize such a right of recovery. n5 However, an increas-
ing number of courts have held or recognized that such losses are recoverable, n6 and some jurisdictions have recognized
the cause of action by virtue of statute n7 or by state rules of civil procedure. n8
FOOTNOTES:
n1 Davis v. Gibbs, 23 N.J. Super. 558, 93 A.2d 206 (App. Div. 1952); St. Louis S.F. Ry. Co. v. Perryman, 213 Ark. 550, 211 S.W.2d 647
(1948); Lynch v. Birdwell, 44 Cal. 2d 839, 285 P.2d 919 (1955); Pawnee Farmers' Elevator Co. v. Powell, 76 Colo. 1, 227 P. 836, 37 A.L.R.
6 (1924); Shiels v. Audette, 119 Conn. 75, 174 A. 323, 94 A.L.R. 1206 (1934); Youngblood v. Taylor, 89 So. 2d 503 (Fla. 1956); Waters v.
Bridges, 55 Ga. App. 763, 191 S.E. 297 (1937); Hayward v. Yost, 72 Idaho 415, 242 P.2d 971 (1952); Automobile Underwriters v. Camp,
109 Ind. App. 389, 32 N.E.2d 112 (1941); Kentucky Service Co. v. Miracle, 246 Ky. 797, 56 S.W.2d 521 (1933); Koob v. Cooperative Cab
Co., 213 La. 903, 35 So. 2d 849 (1948); Gendron v. Gendron, 144 Me. 347, 69 A.2d 668 (1949); Rodgers v. Boynton, 315 Mass. 279, 52
N.E.2d 576, 151 A.L.R. 475 (1943); Gumienny v. Hess, 285 Mich. 411, 280 N.W. 809 (1938); Ludwig v. Haugen Motor Co., 187 Minn.
315, 245 N.W. 371 (1932); Evans v. Farmers Elevator Co., 347 Mo. 326, 147 S.W.2d 593 (1941); Clasen v. Pruhs, 69 Neb. 278, 95 N.W.
640 (1903); Walker v. Burkham, 63 Nev. 75, 165 P.2d 161 (1946); Mullen v. Fayette, 274 A.D. 527, 85 N.Y.S.2d 64 (3d Dep't 1948), judg-
ment aff'd, 300 N.Y. 501, 89 N.E.2d 20 (1949); Smith v. Hewett, 235 N.C. 615, 70 S.E.2d 825, 32 A.L.R.2d 1055 (1952); Stinchcomb v.
Holder, 1941 OK 224, 189 Okla. 315, 116 P.2d 891 (1941); Schmidt v. Kratzer, 402 Pa. 630, 168 A.2d 585 (1961); Motte v. First Nat.
Stores, 76 R.I. 349, 70 A.2d 822, 20 A.L.R.2d 88 (1950); Doyen v. Lamb, 75 S.D. 77, 59 N.W.2d 550 (1953); Cartwright v. Graves, 182
Tenn. 114, 184 S.W.2d 373 (1944); Bee Line Coaches v. Folterman, 207 S.W.2d 986 (Tex. Civ. App. Galveston 1948), writ refused n.r.e;
Trapeni v. Walker, 120 Vt. 510, 144 A.2d 831 (1958); Watson v. Daniel, 165 Va. 564, 183 S.E. 183 (1936).
n2 38 Am. Jur. 2d, Fright, Shock, and Mental Disturbance §§ 27 to 29.
n3 Brennan v. Biber, 99 N.J. Super. 247, 239 A.2d 261 (App. Div. 1968); Smith v. Richardson, 277 Ala. 389, 171 So. 2d 96 (1965); Baxter
v. Superior Court, 19 Cal. 3d 461, 138 Cal. Rptr. 315, 563 P.2d 871 (1977); Butler v. Chrestman, 264 So. 2d 812, 69 A.L.R.3d 546 (Miss.
1972); Gilbert v. Stanton Brewery, 295 N.Y. 270, 67 N.E.2d 155 (1946); McGarr v. National & Providence Worsted Mills, 24 R.I. 447, 53
A. 320 (1902).
Page 263
n4 Hayward v. Yost, 72 Idaho 415, 242 P.2d 971 (1952); Shockley v. Prier, 66 Wis. 2d 394, 225 N.W.2d 495 (1975).
n5 Devito v. Opatich, 215 A.D.2d 714, 627 N.Y.S.2d 441 (2d Dep't 1995); Smith v. Richardson, 277 Ala. 389, 171 So. 2d 96 (1965); Foy v.
Greenbolt, 141 Cal. App. 3d 1, 190 Cal. Rptr. 84 (1st Dist. 1983); Elgin v. Bartlett, 994 P.2d 411 (Colo. 1999); Forte v. Connerwood Health-
care, Inc., 745 N.E.2d 796 (Ind. 2001); Monias v. Endal, 330 Md. 274, 623 A.2d 656 (1993); Boudreau v. Landry, 404 Mass. 528, 536
N.E.2d 339 (1989); Jackson v. Tastykake, Inc., 437 Pa. Super. 34, 648 A.2d 1214 (1994); Gates v. Richardson, 719 P.2d 193 (Wyo. 1986).
n6 Howard Frank, M.D., P.C. v. Superior Court of State of Ariz., In and For Maricopa County, 150 Ariz. 228, 722 P.2d 955 (1986); Dymek
v. Nyquist, 128 Ill. App. 3d 859, 83 Ill. Dec. 52, 469 N.E.2d 659 (1st Dist. 1984); Madison v. Colby, 348 N.W.2d 202 (Iowa 1984); Snearl v.
Mercer, 780 So. 2d 563 (La. Ct. App. 1st Cir. 2001), writ denied, 794 So. 2d 800 (La. 2001) and writ denied, 794 So. 2d 801 (La. 2001);
Shepardson v. Consolidated Medical Equipment, Inc., 714 A.2d 1181 (R.I. 1998); Korth by Lukas v. American Family Ins. Co., 115 Wis. 2d
326, 340 N.W.2d 494 (1983).
n7 Gillispie v. Beta Const. Co., 842 P.2d 1272 (Alaska 1992); Elkhart Community Schools v. Yoder, 696 N.E.2d 409 (Ind. Ct. App. 1998);
Department of Educ. v. Blevins, 707 S.W.2d 782, 32 Ed. Law Rep. 329 (Ky. 1986); Pitre v. Louisiana Tech University, 655 So. 2d 659, 100
Ed. Law Rep. 1214 (La. Ct. App. 2d Cir. 1995), writ granted, 661 So. 2d 454 (La. 1995) and writ granted, 661 So. 2d 454 (La. 1995) and
rev'd, 673 So. 2d 585, 109 Ed. Law Rep. 1398 (La. 1996).
n8 Leahy v. Morgan, 275 F. Supp. 424 (N.D. Iowa 1967).
SUPPLEMENT:
Cases
Under Ohio law, parent may recover damages for loss of filial consortium upon a showing that defendant tortiously
caused physical injury to parent's minor child. Bishop v. Oakstone Academy, 477 F. Supp. 2d 876, 218 Ed. Law Rep.
429 (S.D. Ohio 2007).
Under Ohio law, in order to state a claim for loss of filial consortium, parent must allege physical injury to their child in
the complaint. Bishop v. Oakstone Academy, 477 F. Supp. 2d 876, 218 Ed. Law Rep. 429 (S.D. Ohio 2007).
Under Ohio law, parents of autistic child stated claim for loss of filial consortium, where they alleged their child suf-
fered "sensory, social, and academic regression" as a result of his alleged expulsion from private academy and that "sen-
sory regression" was a neurological injury that constituted a physical injury. Bishop v. Oakstone Academy, 477 F. Supp.
2d 876, 218 Ed. Law Rep. 429 (S.D. Ohio 2007).
A parent cannot recover for loss of a child's society and companionship. Forte v. Connerwood Healthcare, Inc., 745
N.E.2d 796 (Ind. 2001).
Where "feasibility" of joinder is at issue in a loss of parental consortium claim, the child plaintiff has the burden of
showing that joinder was impossible, impractical or not in the child's best interest for his or her claim to be joined with
those of the injured parent. Kelley v. Centennial Contractors Enterprises, Inc., 147 Wash. App. 290, 194 P.3d 292 (Div.
2 2008).

Parent's right to recover for loss of consortium in connection with injury to child, 54 A.L.R. 4th 112 §§ 3, 4.
What items of damages on account of personal injury to infant belong to him, and what to parent, 32 A.L.R. 2d 1060 §
6.
Loss of consortium in parent-child relationship, 27 Am. Jur. Proof of Facts 2d 393.
Page 264

Parent and Child

b. Damages
§ 133 Loss of ability to work
Since the parent is entitled to recover for loss of services resulting from injury to his child, the loss by a child of his abil-
ity to perform labor and to earn wages during the period of his minority -- in other words, loss of services -- is an item
of damages belonging to the parent, rather than to the child, n1 the child's right to damages of this type being confined to
the period following his majority. n2 Unless the parent has emancipated the child, n3 or has otherwise waived or released
his own cause of action in favor of the child, n4 the child may recover neither for loss of time from work or diminished
earnings in the past, that is, up to the time of trial, nor for loss of time or diminished earning capacity between the time
of trial and the time when he will attain his majority. n5
FOOTNOTES:
n1 Sinclair v. Taylor, 27 Ala. App. 418, 173 So. 878 (1937); S. A. Gerrard Co. v. Couch, 43 Ariz. 57, 29 P.2d 151 (1934); St. Louis S.F. Ry.
Co. v. Perryman, 213 Ark. 550, 211 S.W.2d 647 (1948); Finnerty v. Cummings, 132 Cal. App. 48, 22 P.2d 37 (1st Dist. 1933); Pawnee
Farmers' Elevator Co. v. Powell, 76 Colo. 1, 227 P. 836, 37 A.L.R. 6 (1924); Shiels v. Audette, 119 Conn. 75, 174 A. 323, 94 A.L.R. 1206
(1934); Hayward v. Yost, 72 Idaho 415, 242 P.2d 971 (1952); Curtis v. Lowe, 338 Ill. App. 463, 87 N.E.2d 865 (2d Dist. 1949); Automobile
Underwriters v. Camp, 109 Ind. App. 389, 32 N.E.2d 112 (1941); Shoemaker v. Jackson, 128 Iowa 488, 104 N.W. 503 (1905); Kentucky
Service Co. v. Miracle, 246 Ky. 797, 56 S.W.2d 521 (1933); Koob v. Cooperative Cab Co., 213 La. 903, 35 So. 2d 849 (1948); Gendron v.
Gendron, 144 Me. 347, 69 A.2d 668 (1949); Hudson v. Hudson, 226 Md. 521, 174 A.2d 339 (1961); Rodgers v. Boynton, 315 Mass. 279, 52
N.E.2d 576, 151 A.L.R. 475 (1943); Vink v. House, 336 Mich. 292, 57 N.W.2d 887 (1953); Pettit v. Lifson, 238 Minn. 349, 57 N.W.2d 34
(1953); Evans v. Farmers Elevator Co., 347 Mo. 326, 147 S.W.2d 593 (1941); Chicago, B & Q.R. Co. v. Krayenbuhl, 65 Neb. 889, 91 N.W.
880 (1902); Walker v. Burkham, 63 Nev. 75, 165 P.2d 161 (1946); Lessard v. Great Falls Woolen Co., 83 N.H. 576, 145 A. 782, 63 A.L.R.
1142 (1929); Clarke v. Eighth Ave. R. Co., 238 N.Y. 246, 144 N.E. 516, 37 A.L.R. 1 (1924); Doss v. Sewell, 257 N.C. 404, 125 S.E.2d 899
(1962); Immel v. Richards, 154 Ohio St. 52, 42 Ohio Op. 128, 93 N.E.2d 474 (1950); Stinchcomb v. Holder, 1941 OK 224, 189 Okla. 315,
116 P.2d 891 (1941); Discovich v. Chestnut Ridge Transp. Co., 369 Pa. 228, 85 A.2d 122 (1952); Pritsker v. Greenwood, 47 R.I. 384, 133
A. 656 (1926); Hall v. Waters, 132 S.C. 117, 128 S.E. 860 (1925); Wolfe v. Vaughn, 177 Tenn. 678, 152 S.W.2d 631 (1941); Bee Line
Coaches v. Folterman, 207 S.W.2d 986 (Tex. Civ. App. Galveston 1948), writ refused n.r.e; Watson v. Daniel, 165 Va. 564, 183 S.E. 183
(1936); Richmond v. Campbell, 148 W. Va. 595, 136 S.E.2d 877 (1964); Callies v. Reliance Laundry Co., 188 Wis. 376, 206 N.W. 198, 42
A.L.R. 712 (1925) (disapproved of by, Hudson v. Hudson, 226 Md. 521, 174 A.2d 339 (1961)).
As to the impaired earning capacity of injured minors as an element of damages, see 22 Am. Jur. 2d, Damages §§ 191 to 194.
n2 Stone v. Yellow Cab Co., 221 P.2d 131 (Cal. App. 2d Dist. 1950), certified question accepted, (Mar. 22, 1951); Kentucky Service Co. v.
Miracle, 246 Ky. 797, 56 S.W.2d 521 (1933); Zarba v. Lane, 322 Mass. 132, 76 N.E.2d 318 (1947); Vink v. House, 336 Mich. 292, 57
N.W.2d 887 (1953); Lanasa v. Downey, 201 S.W.2d 179 (Mo. Ct. App. 1947); Toler v. Savage, 226 N.C. 208, 37 S.E.2d 485 (1946); Wolfe
v. Vaughn, 177 Tenn. 678, 152 S.W.2d 631 (1941); Watson v. Daniel, 165 Va. 564, 183 S.E. 183 (1936); Handley v. Anacortes Ice Co., 5
Wash. 2d 384, 105 P.2d 505 (1940); Webster v. Krembs, 230 Wis. 252, 282 N.W. 564 (1938).
n3 § 137.
n4 § 138.
Page 265
n5 Chicago, B & Q.R. Co. v. Krayenbuhl, 65 Neb. 889, 91 N.W. 880 (1902); Lessard v. Great Falls Woolen Co., 83 N.H. 576, 145 A. 782,
63 A.L.R. 1142 (1929); Comer v. Ritter Lumber Co., 59 W. Va. 688, 53 S.E. 906 (1906).

3.
Page 266

Parent and Child

b. Damages
§ 134 Consequential expenses; value of care
Unless the child is emancipated, the parent, rather than the child, is entitled to recover, in an action for injury to the
child, for medical and other expenses necessarily incurred in healing or attempting to heal the injury. n1 The fact that the
parent has insurance against such contingencies does not affect his right to recover. n2
Upon the ground that there is no assurance that if recovery is permitted by the parent, the money will be used for the
child's benefit, it has been held that the child, not the parent, is the proper party to recover for future expenses, including
the increased cost of supporting the child due to the injury. n3 However, though there is authority that a minor child may
recover for prospective medical or similar expenses, notwithstanding he has not been emancipated, n4 other cases permit
the parents to recover for medical expenses to be incurred in the future. n5 Damages for the increased cost of support and
maintenance of an injured minor belong to the parents. n6 When the minor child has paid his medical expenses out of his
own means or on his own account, his parents have no right to recover them. n7 The expenses recoverable by the parent
are not necessarily confined to medical expenses, but may include other items of expense not directly connected with
the healing of the injury. n8 The parent cannot recover for any aggravation of the injury caused by his own failure to ob-
tain proper medical treatment. n9
It is generally held that the parent may recover the reasonable value of the care or attendance which he himself renders
to the child as a result of the injury. n10
FOOTNOTES:
n1 Peer v. City of Newark, 71 N.J. Super. 12, 176 A.2d 249 (App. Div. 1961); McGahey v. Albritton, 214 Ala. 279, 107 So. 751 (1926); S.
A. Gerrard Co. v. Couch, 43 Ariz. 57, 29 P.2d 151 (1934); St. Louis S.F. Ry. Co. v. Perryman, 213 Ark. 550, 211 S.W.2d 647 (1948); Lynch
v. Birdwell, 44 Cal. 2d 839, 285 P.2d 919 (1955); Hauk v. Zimmerman, 135 Conn. 259, 63 A.2d 146 (1948); Hobbs v. Lokey, 37 Del. 408,
183 A. 631 (Super. Ct. 1936); Youngblood v. Taylor, 89 So. 2d 503 (Fla. 1956); Krasner v. O'Dell, 89 Ga. App. 718, 80 S.E.2d 852 (1954),
judgment aff'd, 211 Ga. 142, 84 S.E.2d 46 (1954); Baldwin v. Ewing, 69 Idaho 176, 204 P.2d 430 (1949); Curtis v. Lowe, 338 Ill. App. 463,
87 N.E.2d 865 (2d Dist. 1949); Shoemaker v. Jackson, 128 Iowa 488, 104 N.W. 503 (1905); Balandran v. Compton, 141 Kan. 321, 41 P.2d
720 (1935); Kentucky Service Co. v. Miracle, 246 Ky. 797, 56 S.W.2d 521 (1933); Zernott v. Hobbie, 146 So. 2d 729 (La. Ct. App. 4th Cir.
1962); Gendron v. Gendron, 144 Me. 347, 69 A.2d 668 (1949); Hudson v. Hudson, 226 Md. 521, 174 A.2d 339 (1961); Rodgers v. Boynton,
315 Mass. 279, 52 N.E.2d 576, 151 A.L.R. 475 (1943); Balian v. Ogassian, 277 Mass. 525, 179 N.E. 232, 78 A.L.R. 1021 (1931); Vink v.
House, 336 Mich. 292, 57 N.W.2d 887 (1953); Pettit v. Lifson, 238 Minn. 349, 57 N.W.2d 34 (1953); Lane v. Webb, 220 So. 2d 281 (Miss.
1969); Evans v. Farmers Elevator Co., 347 Mo. 326, 147 S.W.2d 593 (1941); Walker v. Burkham, 63 Nev. 75, 165 P.2d 161 (1946); Clarke
v. Eighth Ave. R. Co., 238 N.Y. 246, 144 N.E. 516, 37 A.L.R. 1 (1924); Smith v. Hewett, 235 N.C. 615, 70 S.E.2d 825, 32 A.L.R.2d 1055
(1952); Bagyi v. Miller, 3 Ohio App. 2d 371, 32 Ohio Op. 2d 518, 210 N.E.2d 887 (7th Dist. Mahoning County 1965); Palacine Oil Co. v.
Philpot, 1930 OK 180, 144 Okla. 123, 289 P. 281 (1930); Schmidt v. Kratzer, 402 Pa. 630, 168 A.2d 585 (1961); Motte v. First Nat. Stores,
76 R.I. 349, 70 A.2d 822, 20 A.L.R.2d 88 (1950); Hughey v. Ausborn, 249 S.C. 470, 154 S.E.2d 839, 25 A.L.R.3d 1406 (1967); Degen v.
Bayman, 90 S.D. 400, 241 N.W.2d 703 (1976); Cartwright v. Graves, 182 Tenn. 114, 184 S.W.2d 373 (1944); Mercer v. Evans, 173 S.W.2d
206 (Tex. Civ. App. Fort Worth 1943); Watson v. Daniel, 165 Va. 564, 183 S.E. 183 (1936); Barker v. Saunders, 116 W. Va. 548, 182 S.E.
289 (1935).
Page 267
n2 Ottley v. Hill, 21 Utah 2d 396, 446 P.2d 301 (1968).
n3 Brown v. Caldwell, 389 So. 2d 287 (Fla. Dist. Ct. App. 1st Dist. 1980); Clarke v. Eighth Ave. R. Co., 238 N.Y. 246, 144 N.E. 516, 37
A.L.R. 1 (1924).
n4 Rockwood v. Lansburgh, 109 Cal. App. 581, 293 P. 792 (1st Dist. 1930); Sharkey v. Herman Bros., 3 N.J. Misc. 126, 127 A. 525 (Sup.
Ct. 1925), judgment aff'd, 102 N.J.L. 224, 130 A. 920 (N.J. Ct. Err. & App. 1925).
n5 Peer v. City of Newark, 71 N.J. Super. 12, 176 A.2d 249 (App. Div. 1961).
n6 American Nat. Ins. Co. v. Denke, 65 S.W.2d 522 (Tex. Civ. App. Waco 1933), rev'd, 128 Tex. 229, 95 S.W.2d 370, 107 A.L.R. 409
(Comm'n App. 1936); Ketterer v. Public Service R. Co., 5 N.J. Misc. 159, 135 A. 679 (Sup. Ct. 1927).
n7 McManus v. Arnold Taxi Corp., 82 Cal. App. 215, 255 P. 755 (1st Dist. 1927); Hobbs v. Lokey, 37 Del. 408, 183 A. 631 (Super. Ct.
1936); Smith v. Gulf, M & N.R. Co., 158 Miss. 188, 129 So. 599 (1930); Graham v. Cloar, 30 Tenn. App. 306, 205 S.W.2d 764 (1947);
Knutson v. Fenelon, 200 Wis. 261, 227 N.W. 857 (1929).
n8 Woodman v. Peck, 90 N.H. 292, 7 A.2d 251, 122 A.L.R. 1402 (1939).
As to the recovery of funeral expenses by the parent, see § 128.
n9 Lange v. Hoyt, 114 Conn. 590, 159 A. 575, 82 A.L.R. 486 (1932).
n10 Smith v. Richardson, 277 Ala. 389, 171 So. 2d 96 (1965); Armstrong v. Onufrock, 75 Nev. 342, 341 P.2d 105, 76 A.L.R.2d 946 (1959);
Simone v. Rhode Island Co., 28 R.I. 186, 66 A. 202 (1907).
In a damages action arising out of an automobile accident, in which the plaintiff's minor was so severely injured as to require lifetime nurs-
ing care by the mother, who left her job to furnish said care, damages for future care were properly computed using the present value of the
mother's job rather than present value of a licensed practical nurse. Nichols v. Hodges, 385 So. 2d 298 (La. Ct. App. 1st Cir. 1980), writ re-
fused, 386 So. 2d 355 (La. 1980).

Damages for personal injury or death as including value of care and nursing gratuitously rendered, 90 A.L.R. 2d 1323 §
5.
What items of damages on account of personal injury to infant belong to him, and what to parent, 32 A.L.R. 2d 1060 §§
4, 5.
Page 268

Parent and Child

b. Damages
§ 135 Punitive damages
Where a parent sues for medical expenditures or loss of services claimed to have resulted from a personal injury negli-
gently inflicted upon his child by the defendant, his recovery is purely compensatory and no punitive damages may be
allowed, n1 though there is authority to the contrary. n2
FOOTNOTES:
n1 Feazell v. Campbell, 358 So. 2d 1017 (Ala. 1978); Mancino v. Webb, 274 A.2d 711 (Del. Super. Ct. 1971); Forte v. Connerwood
Healthcare, Inc., 745 N.E.2d 796 (Ind. 2001); Fowler Butane Gas Co. v. Varner, 244 Miss. 130, 141 So. 2d 226 (1962); Tidd v. Skinner, 225
N.Y. 422, 122 N.E. 247, 3 A.L.R. 1145 (1919); Hughey v. Ausborn, 249 S.C. 470, 154 S.E.2d 839, 25 A.L.R.3d 1406 (1967).
n2 Wangen v. Ford Motor Co., 97 Wis. 2d 260, 294 N.W.2d 437, 13 A.L.R.4th 1 (1980).
As to the rule that exemplary damages are allowed only to the immediate person receiving the injury, see 22 Am. Jur. 2d, Damages § 781.
SUPPLEMENT:
Cases
Punitive damages are not recoverable under a parent's common law claim for loss of a child's services. Forte v. Conner-
wood Healthcare, Inc., 745 N.E.2d 796 (Ind. 2001).

Spouse's or parent's right to recover punitive damages in connection with recovery of damages for medical expenses or
loss of services or consortium arising from personal injury to other spouse or to child, 25 A.L.R. 3d 1416.
8.
Page 269

Parent and Child

c. Defenses
§ 136 Generally; inability of child to recover
Various defenses are available against the parent in actions involving torts against the child. Thus, a parent who con-
sents to the intentional infliction of bodily harm upon his minor child by another is barred from recovering from the
other for the resulting loss of the child's services and any expense incurred by him or her in providing medical attention.
n1
Since, except where the action is for employment without the parent's consent, n2 the parent's cause of action arises out
of the injury to the child, an act or omission which would not support an action by the child will not furnish a ground of
action by the parent. n3 Thus, where an automobile guest statute would preclude recovery by the child, the parent cannot
recover for loss of services and expenses of treatment. n4 However, this requirement that the child also have a good cause
of action has reference to the nature and circumstances of the injury itself, and does not necessarily mean that the par-
ent's cause of action can be defeated by the consent of the child to the wrongful act, n5 or by his waiver of the wrong,
even where such waiver was by operation of law, n6 although, as to the latter point, there is authority to the contrary. n7
It is no defense to a parent's action for loss of the services of his child that the parent is in such financial condition as not
to be dependent upon those services, n8 or that he permitted the child, prior to the injury, to spend his own earnings. n9 A
statute which does away with a defense to an action by a child applies also to an action by its parent. n10
A child's action for injuries must be compensable in order for the parent to be able to maintain a suit for loss of the
child's consortium. n11
FOOTNOTES:
n1 Restatement Second, Torts § 704.
n2 § 130.
n3 Shiels v. Audette, 119 Conn. 75, 174 A. 323, 94 A.L.R. 1206 (1934); Jones v. Schmidt, 349 Ill. App. 336, 110 N.E.2d 688 (4th Dist.
1953); Smith v. Hewett, 235 N.C. 615, 70 S.E.2d 825, 32 A.L.R.2d 1055 (1952); Dudley v. Phillips, 218 Tenn. 648, 405 S.W.2d 468, 21
A.L.R.3d 462 (1966).
n4 Shiels v. Audette, 119 Conn. 75, 174 A. 323, 94 A.L.R. 1206 (1934).
n6 King v. Viscoloid Co., 219 Mass. 420, 106 N.E. 988 (1914).
Page 270
n7 Courage v. Carleton, 96 N.H. 348, 77 A.2d 111 (1950).
n8 Tucker v. Draper, 62 Neb. 66, 86 N.W. 917 (1901).
n9 Texas & P. Ry. Co. v. Brick, 83 Tex. 526, 18 S.W. 947 (1892).
n10 Balian v. Ogassian, 277 Mass. 525, 179 N.E. 232, 78 A.L.R. 1021 (1931).
n11 Sanchez By and Through DiFerdinando v. School Dist. 9-R, 902 P.2d 450, 23 A.D.D. 1266, 103 Ed. Law Rep. 838 (Colo. Ct. App.
1995), as modified on denial of reh'g, (Feb. 23, 1995); Haley v. McManus, 593 So. 2d 1339, 72 Ed. Law Rep. 1229 (La. Ct. App. 1st Cir.
1991); Jameson v. Hawthorne, 635 A.2d 1167 (R.I. 1994); Benoy v. Simons, 66 Wash. App. 56, 831 P.2d 167 (Div. 3 1992).
As to a suit by parents for loss of consortium, generally, see § 132.

Injured child's subsequent marriage to tortfeasor as barring parent's action for medical expense, loss of service, and the
like, 91 A.L.R. 2d 910.
Page 271

Parent and Child

c. Defenses
§ 137 Emancipation of child
Since emancipation ends the parent's right to his child's services, it also terminates his right to recover for the loss of
those services. n1 The child can claim his own lost earnings in an action brought by a guardian or a next friend. n2 How-
ever, the emancipation must be complete. A partial emancipation precludes a recovery of damages for loss of services
only during that period or for that purpose, but, being revocable, does not affect the parent's right to recover for loss of
services during the remainder of the period of minority. n3 Emancipation may also preclude recovery by the parent for
medical expenses and the increased cost of supporting the child due to the injury, since in such a case the child, not the
parent, is the one primarily responsible. n4 Where the custody and support of a child remain in the parents their right of
action for loss of his services is not cut off by the appointment of a guardian. n5
FOOTNOTES:
n1 Pawnee Farmers' Elevator Co. v. Powell, 76 Colo. 1, 227 P. 836, 37 A.L.R. 6 (1924); McClain v. Lewiston Interstate Fair & Racing
Ass'n, 17 Idaho 63, 104 P. 1015 (1909); Collis v. Hoskins, 306 Ky. 391, 208 S.W.2d 70 (1948); Roher v. State, 200 Misc. 669, 106 N.Y.S.2d
360 (Ct. Cl. 1951), judgment aff'd, 279 A.D. 1116, 112 N.Y.S.2d 603 (3d Dep't 1952); Memphis Steel Const. Co. v. Lister, 138 Tenn. 307,
197 S.W. 902 (1917).
Complete, although not partial, emancipation of the child is a good defense in an action by a parent against an employer for injury to the
child, but the employer has the burden of proving complete emancipation. Memphis Steel Const. Co. v. Lister, 138 Tenn. 307, 197 S.W. 902
(1917).
n2 Romine v. City of Watseka, 341 Ill. App. 370, 91 N.E.2d 76 (2d Dist. 1950).
n3 Memphis Steel Const. Co. v. Lister, 138 Tenn. 307, 197 S.W. 902 (1917).
n4 Clarke v. Eighth Ave. R. Co., 238 N.Y. 246, 144 N.E. 516, 37 A.L.R. 1 (1924).
n5 Lessard v. Great Falls Woolen Co., 83 N.H. 576, 145 A. 782, 63 A.L.R. 1142 (1929).

Page 272
What items of damages on account of personal injury to infant belong to him, and what to parent, 32 A.L.R. 2d 1060 §§
9 to 11.
Page 273

Parent and Child

c. Defenses
§ 138 Waiver and estoppel
The parent may waive or relinquish in favor of the child his right to the child's services, so as to permit the child to re-
cover their value as part of his damages. n1 In such a case, the child is entitled to recover the full amount to which both
he and his parent would have been entitled if separate suits had been brought, and the parent is estopped from afterward
bringing any action in his own right. n2 Although it may also be the subject of a formal waiver or relinquishment, n3 such
a release to the child of the parent's rights is more frequently implied from the parent's conduct. Thus, the parent's rights
are waived where, having notice, the parent fails to object to the bringing of an action by the child in which the child
claims damages properly belonging to the parent, n4 or where he testifies in the child's action in regard to such damages.
n5
Also, where, in an action brought by him as guardian or next friend to recover for injuries to his child, the parent
claims damages for loss of time, diminished earning capacity, medical expenses, etc., he cannot make any claim for
such items in a subsequent action brought in his own right, but rather, they are to be recovered by the child in the first
action only. n6 However, where the mother conducts the minor's action as next friend, the father is not estopped from
bringing an independent action. n7
A parent has an independent right to damages for the loss of his child's services, which includes the loss of companion-
ship, and such an action is maintainable even if the child waives his right to sue. n8
FOOTNOTES:
n1 McClain v. Lewiston Interstate Fair & Racing Ass'n, 17 Idaho 63, 104 P. 1015 (1909); Goff v. Hubbard, 217 Ky. 729, 290 S.W. 696, 50
A.L.R. 1382 (1927); Pascal v. Burke Transit Co., 229 N.C. 435, 50 S.E.2d 534 (1948); Bagyi v. Miller, 3 Ohio App. 2d 371, 32 Ohio Op. 2d
518, 210 N.E.2d 887 (7th Dist. Mahoning County 1965).
n2 Faitz v. Ruegg, 114 Cal. App. 3d 967, 171 Cal. Rptr. 149 (1st Dist. 1981); Louisville, H & St. L. Ry. Co. v. Lyons, 155 Ky. 396, 159
S.W. 971 (1913); Shields v. McKay, 241 N.C. 37, 84 S.E.2d 286 (1954).
n3 National City Development Co. v. McFerran, 55 A.2d 342 (Mun. Ct. App. D.C. 1947); Evans v. Caldwell, 52 Ga. App. 475, 184 S.E.
440 (1936), aff'd, 184 Ga. 203, 190 S.E. 582 (1937); Wolfe v. Vaughn, 177 Tenn. 678, 152 S.W.2d 631 (1941); Schaff v. Sanders, 269 S.W.
1034 (Tex. Comm'n App. 1925).
n4 Louisville, H & St. L. Ry. Co. v. Lyons, 155 Ky. 396, 159 S.W. 971 (1913).
n5 National City Development Co. v. McFerran, 55 A.2d 342 (Mun. Ct. App. D.C. 1947); Girard v. Irvine, 97 Cal. App. 377, 275 P. 840
(1st Dist. 1929); White v. Seitz, 342 Ill. 266, 174 N.E. 371 (1930); Behemoth Coal Co. v. Helton, 310 Ky. 810, 222 S.W.2d 845 (1949).
n6 Carangelo v. Nutmeg Farm, 115 Conn. 457, 162 A. 4, 82 A.L.R. 1320 (1932); Fox v. Hopkins, 343 Ill. App. 404, 99 N.E.2d 363, 26
A.L.R.2d 352 (3d Dist. 1951); Goff v. Hubbard, 217 Ky. 729, 290 S.W. 696, 50 A.L.R. 1382 (1927); Lane v. Webb, 220 So. 2d 281 (Miss.
Page 274
1969); Mitchell v. Mosher, 362 S.W.2d 532 (Mo. 1962); Chicago, B & Q.R. Co. v. Krayenbuhl, 65 Neb. 889, 91 N.W. 880 (1902); Pascal v.
Burke Transit Co., 229 N.C. 435, 50 S.E.2d 534 (1948); Bagyi v. Miller, 3 Ohio App. 2d 371, 32 Ohio Op. 2d 518, 210 N.E.2d 887 (7th
Dist. Mahoning County 1965).
n7 Smith v. Hewett, 235 N.C. 615, 70 S.E.2d 825, 32 A.L.R.2d 1055 (1952).
n8 Wilkie v. Roberts, 91 Fla. 1064, 109 So. 225 (1926).

Page 275

Parent and Child

c. Defenses
§ 139 Res judicata
A parent suing for consequential damages resulting to himself from a negligent injury to a minor child is not bound by a
judgment rendered in a prior action brought by the child. n1 This rule is not affected by the fact that the parent, as
guardian or next friend, was actually the one who instituted the child's action. n2 The judgment, in fact, is not even ad-
missible in evidence in the subsequent action. n3 Similarly, children are not bound by a judgment against their parent in a
previous action for loss of the minor's services. n4
FOOTNOTES:
n2 Pawnee Farmers' Elevator Co. v. Powell, 76 Colo. 1, 227 P. 836, 37 A.L.R. 6 (1924); Henry v. Missouri, K & T. Ry. Co., 98 Kan. 567,
158 P. 857 (1916); Syczhk v. Szczerbaniewicz, 233 A.D. 342, 252 N.Y.S. 780 (4th Dep't 1931); Rabil v. Farris, 213 N.C. 414, 196 S.E. 321,
116 A.L.R. 1083 (1938); Smittle v. Eberle, 1960 OK 137, 353 P.2d 121 (Okla. 1960); Comer v. Ritter Lumber Co., 59 W. Va. 688, 53 S.E.
906 (1906).
n3 Henry v. Missouri, K & T. Ry. Co., 98 Kan. 567, 158 P. 857 (1916); Bridger v. Asheville & S.R. Co., 27 S.C. 456, 3 S.E. 860 (1887).
n4 Ball v. Benjamin, 313 Ky. 623, 233 S.W.2d 267, 23 A.L.R.2d 707 (1950).
SUPPLEMENT:
Cases
Prior judgment in price discrimination suit brought by independent auto parts retailers, wholesale distributors, and trade
association against parts manufacturers and national retail chains precluded same plaintiffs from asserting claims under
Robinson-Patman Act arising from sales during time periods covered by prior action, but did not bar other similarly-sit-
uated plaintiffs' claims based on same facts. Robinson-Patman Act, § 1, 15 U.S.C.A. § 13. Coalition For A Level Play-
ing Field, L.L.C. v. AutoZone, Inc., 737 F. Supp. 2d 194 (S.D. N.Y. 2010).

Page 276

Judgment against parents in action for loss of minor's services as precluding minor's action for personal injuries, 41
A.L.R. 3d 536 § 3.
Judgment in action growing out of accident as res judicata, as to negligence or contributory negligence, in later action
growing out of same accident by or against one not a party to earlier action, 23 A.L.R. 2d 710 § 18.
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Parent and Child

c. Defenses
§ 140 Contributory or imputed negligence
In an action by a parent for his own benefit to recover damages which he has suffered by reason of injury to his child,
his own negligence contributing to the injury may defeat or limit his recovery. n1 However, as in other negligence ac-
tions, the contributory negligence of the parent, in order to constitute a defense to the action, must have been a concur-
rent and proximate cause of the injury. n2
The general rule that the negligence of one spouse will not be imputed to the other n3 has been applied in an action by
one parent to recover for an injury to the child caused by the concurrent negligence of the defendant and the other par-
ent. n4 However, where the cause of action is community property, the negligence of one parent is imputed to the other in
order to prevent the negligent parent from profiting by his own wrong. n5
FOOTNOTES:
n1 Brennan v. Biber, 93 N.J. Super. 351, 225 A.2d 742 (Law Div. 1966), judgment aff'd, 99 N.J. Super. 247, 239 A.2d 261 (App. Div.
1968) and (implied overruling recognized by, Carter v. University of Medicine and Dentistry of New Jersey, 838 F. Supp. 957 (D.N.J.
1993)); Brady on Behalf of Brady v. Rivella Developers, Inc., 424 So. 2d 1104 (La. Ct. App. 1st Cir. 1982); Walsh v. Loorem, 180 Mass.
18, 61 N.E. 222 (1901); Wilson v. Thayer County Agricultural Soc., 115 Neb. 579, 213 N.W. 966, 52 A.L.R. 1393 (1927); Haynie v. North
Carolina Elec. Power Co., 157 N.C. 503, 73 S.E. 198 (1911); Gress v. Philadelphia & R. Ry. Co., 228 Pa. 482, 77 A. 810 (1910); Swope v.
Keystone Coal & Coke Co., 78 W. Va. 517, 89 S.E. 284 (1916); Giese v. Montgomery Ward, Inc., 111 Wis. 2d 392, 331 N.W.2d 585
(1983).
In an action by a parent for loss of services of a minor child resulting from bodily harm inflicted on the child by the tortious conduct of a
third party, contributory negligence or assumption of risk on the part of the parent is a defense to the extent that it constitutes a defense in
general for the type of tortious conduct in which the third party is engaged. Restatement Second, Torts § 704A.
n2 Winters v. Kansas City Cable Ry. Co., 99 Mo. 509, 12 S.W. 652 (1889).
n3 57B Am. Jur. 2d, Negligence § 1799.
n4 Ward v. Baskin, 94 So. 2d 859, 66 A.L.R.2d 1320 (Fla. 1957); Illingworth v. Madden, 135 Me. 159, 192 A. 273, 110 A.L.R. 1090
(1937).
The negligence of one parent does not bar recovery by the other parent for loss of the services of their child, or for medical expenses in-
curred in caring for him. Restatement Second, Torts § 494a.
n5 Flores v. Brown, 39 Cal. 2d 622, 248 P.2d 922 (1952).

Page 278
Parent's right to recover for loss of consortium in connection with injury to child, 54 A.L.R. 4th 112 § 6[b].
Negligence of one parent contributing to injury or death of child as barring or reducing damages recoverable by other
parent for losses suffered by other parent as result of injury or death of child, 26 A.L.R. 4th 396.
Permitting child to walk to school unattended as contributory negligence of parents in action for injury to or death of
child, 62 A.L.R. 3d 541.
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Parent and Child

c. Defenses
§ 141 Negligence of child
If the child failed to exercise the care properly to be required of one of its age, and that lack of care contributed to the
accident, the parent's recovery is defeated or limited. n1 This defense is not available where the conduct of the defendant
amounts to a positive and willful injury. n2 In addition, a child's contributory negligence is not a defense to the parents'
claim for loss of services, companionship, and society to the injured child where it is not the sole proximate cause of the
child's injury. n3
FOOTNOTES:
n1 Fekete v. Schipler, 80 N.J. Super. 538, 194 A.2d 361 (App. Div. 1963); Thompson v. Town of Ft. Branch, 204 Ind. 152, 178 N.E. 440,
82 A.L.R. 1413 (1931); Douga v. Ancona Baking Co., 193 So. 271 (La. Ct. App., Orleans 1940); Niemi v. Boston & M. R. R., 87 N.H. 1,
175 A. 245 (1934); Tidd v. Skinner, 225 N.Y. 422, 122 N.E. 247, 3 A.L.R. 1145 (1919); Gress v. Philadelphia & R. Ry. Co., 228 Pa. 482, 77
A. 810 (1910); Dudley v. Phillips, 218 Tenn. 648, 405 S.W.2d 468, 21 A.L.R.3d 462 (1966); Dartez v. Gadbois, 541 S.W.2d 502 (Tex. Civ.
App. Houston 1st Dist. 1976).
n2 Thompson v. Town of Ft. Branch, 204 Ind. 152, 178 N.E. 440, 82 A.L.R. 1413 (1931); Tidd v. Skinner, 225 N.Y. 422, 122 N.E. 247, 3
A.L.R. 1145 (1919).
n3 Handeland v. Brown, 216 N.W.2d 574 (Iowa 1974).

Parent's right to recover for loss of consortium in connection with injury to child, 54 A.L.R. 4th 112 § 6[a].
Negligence of spouse or child as barring or reducing recovery for loss of consortium by other spouse or parent, 25
A.L.R. 4th 118.
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Parent and Child

c. Defenses
§ 142 Limitations
In some jurisdictions, a parent's claim for loss of services and companionship of his or her injured child is separate and
distinct from the child's claim for damages and is not tolled until the child reaches the age of majority, n1 whereas in
other jurisdictions, a parent is entitled to the benefit of the tolling provision of the applicable statute of limitations, and
can bring his or her action within the same time period as the child's claim for damages. n2
FOOTNOTES:
n1 Davis v. Drackett Products Co., 536 F. Supp. 694 (S.D. Ohio 1982).
n2 Carter v. University of Medicine and Dentistry of New Jersey, 838 F. Supp. 957 (D.N.J. 1993); Korth by Lukas v. American Family Ins.
Co., 115 Wis. 2d 326, 340 N.W.2d 494 (1983).

Page 281

Parent and Child

d. Practice and Procedure
§ 143 Generally
The bringing of separate actions by the parent and the child does not involve any wrongful splitting of the cause of ac-
tion. n1
To enable a child to recover items of damages which would belong to the parent if the situation of the parent and child
were the usual one, the pleadings of the child must allege the facts which are claimed to entitle it, instead of its parents,
to recover. This is true, for example, where the child claims to have been emancipated. n2 Generally, emancipation must
be pleaded where relied on as a defense to the parent's action. n3
It is error for the court, in granting a new trial because of the inadequacy of damages for the child, to limit the new trial
to the amount of damages in the child's case, where the child's action for the injury and the parent's action for loss of
services were tried together. n4 When a judgment in favor of the parent must be reversed, a judgment in favor of the child
will be reversed also, especially as to parties who once participated in the trial without objection to joinder. n5
FOOTNOTES:
n1 Freeman v. Harrison, 143 S.W. 686 (Tex. Civ. App. Texarkana 1912), writ refused, (Apr. 3, 1912).
n2 Santasiero v. Briggs, 278 A.D. 15, 103 N.Y.S.2d 1 (3d Dep't 1951).
n3 Collis v. Hoskins, 306 Ky. 391, 208 S.W.2d 70 (1948).
n4 Radiant Oil Co. v. Herring, 146 Fla. 154, 200 So. 376 (1941).
n5 Houston Oxygen Co. v. Davis, 139 Tex. 1, 161 S.W.2d 474, 140 A.L.R. 868 (Comm'n App. 1942).

12.
Page 282
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Parent and Child

d. Practice and Procedure
§ 144 Right to sue; parties
There is authority that the cause of action of a parent of an unemancipated child injured by the tortious act of another is
available to either the father or the mother, or to the two parents together, and that in such a suit, both lawful parents are
necessary parties. n1 Also, where the facts show that the right to the child's services and the duty to support the child are
actually in the mother, she has been held entitled to maintain the action. n2 However, where the action is brought by the
mother, the father has been held a necessary party in the absence of pleading and proof of facts showing that the father's
duty to support the child and right to the child's services have been terminated. n3 A mother who has performed nursing
services for her injured minor child may bring her own action directly against the wrongdoer. n4 Statutes sometimes re-
quire that both parents join in the action. n5
Neither the child nor its guardian is a proper plaintiff in an action by the parents to recover for loss of services. n6
FOOTNOTES:
n1 Yordon v. Savage, 279 So. 2d 844 (Fla. 1973).
n2 Clough v. Board of Ed. of Spencerport Central School Dist., Monroe County, 56 A.D.2d 233, 392 N.Y.S.2d 170 (4th Dep't 1977); Flip-
pin v. Jarrell, 301 N.C. 108, 270 S.E.2d 482 (1980); McGarr v. National & Providence Worsted Mills, 24 R.I. 447, 53 A. 320 (1902); Thore-
son v. Milwaukee & Suburban Transport Co., 56 Wis. 2d 231, 201 N.W.2d 745 (1972).
n3 Houston Oxygen Co. v. Davis, 139 Tex. 1, 161 S.W.2d 474, 140 A.L.R. 868 (Comm'n App. 1942).
n4 Armstrong v. Onufrock, 75 Nev. 342, 341 P.2d 105, 76 A.L.R.2d 946 (1959).
n5 Emery v. Emery, 45 Cal. 2d 421, 289 P.2d 218 (1955).
n6 Lessard v. Great Falls Woolen Co., 83 N.H. 576, 145 A. 782, 63 A.L.R. 1142 (1929).

Page 284

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Page 1

American Jurisprudence, Second Edition

Laura Hunter Dietz, J.D.

Parent and Child

59 Am Jur 2d Parent and Child Summary

Parent and Child Summary

REFERENCE: Research References

A.L.R. Index: Children

Parent's failure to supervise children, 11 Am. Jur. Proof of Facts 2d 541

American Jurisprudence, Second Edition

Laura Hunter Dietz, J.D.

Parent and Child

59 Am Jur 2d Parent and Child § 1

REFERENCE: U.C.C.J.E.A. § 102(2)

American Jurisprudence, Second Edition

Laura Hunter Dietz, J.D.

Parent and Child

59 Am Jur 2d Parent and Child § 2

§ 2 "parent"; "father"; "mother"

n3 Kerins v. Lima, 425 Mass. 108, 680 N.E.2d 32 (1997).

n5 Owens v. Munden, 168 N.C. 266, 84 S.E. 257 (1915).

n10 Mund v. Rehaume, 51 Colo. 129, 117 P. 159 (1911).

n12 In re M., 51 A.L.R.2d 488 (CA 1955).

As to persons in loco parentis, generally, see §§ 9 et seq.

REFERENCE: U.C.C.J.E.A. § 102(2)

American Jurisprudence, Second Edition

Laura Hunter Dietz, J.D.

Parent and Child

59 Am Jur 2d Parent and Child § 3

REFERENCE: U.C.C.J.E.A. § 102(2)

American Jurisprudence, Second Edition

Laura Hunter Dietz, J.D.

Parent and Child

59 Am Jur 2d Parent and Child § 4

n3 Colpitt v. Cheatham, 1954 OK 77, 267 P.2d 1003 (Okla. 1954).

n8 Ellis v. Henderson, 204 F.2d 173 (5th Cir. 1953).

REFERENCE: U.C.C.J.E.A. § 102(2)

American Jurisprudence, Second Edition

Laura Hunter Dietz, J.D.

Parent and Child

59 Am Jur 2d Parent and Child § 5

§ 5 "Child artificially inseminated"

n1 41 Am. Jur. 2d, Illegitimate Children § 2.

As to a husband's duty of support of a child artificially conceived, see § 56.

As to a husband's visitation rights toward a child artificially conceived, see § 38.

n2 U.P.A. §§ 702 to 704.

n3 Welborn v. Doe, 10 Va. App. 631, 394 S.E.2d 732 (1990).

REFERENCE: U.C.C.J.E.A. § 102(2)

American Jurisprudence, Second Edition

Laura Hunter Dietz, J.D.

Parent and Child

59 Am Jur 2d Parent and Child § 6

n1 Rivera v. Marcus, 696 F.2d 1016 (2d Cir. 1982).

n2 Pesqueira v. Talbot, 7 Ariz. App. 476, 441 P.2d 73 (Div. 2 1968).

n3 Steva v. Steva, 332 S.W.2d 924 (Mo. 1960).

REFERENCE: U.C.C.J.E.A. § 102(2)

American Jurisprudence, Second Edition

Laura Hunter Dietz, J.D.

Parent and Child

59 Am Jur 2d Parent and Child § 7

§ 7 of child for parent

n7 Wilks v. Stone, 339 S.W.2d 590 (Mo. Ct. App. 1960).

n8 Fisher v. Lutz, 146 Wis. 664, 132 N.W. 592 (1911).

REFERENCE: U.C.C.J.E.A. § 102(2)