Parent and Child
| Author | Jeffrey Lehman, Shirelle Phelps |
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The legal relationship between a father or mother and his or her offspring.
The relationship between parent and child is of fundamental importance to U.S. society, because it preserves the safety and provides for the nurture of dependent individuals. For this reason, the parent-child relationship is given special legal consideration. Increasingly, local, state, and federal governments have become more involved in the relationship, especially when a child is abused or neglected. In addition, parental roles have shifted over time, and the law has moved with these changes. Legal rights that were once the sole province of the father are now shared with the mother, and, in general, the law seeks to treat parents equally.
The term child is used in the limited sense to indicate an individual below the age of majority. The more precise word for such an individual is minor, juvenile, or infant. The age of majority, which transforms a child legally into an adult, has traditionally been the age of 21 years. Many states, however, have reduced the age of majority to 18 years.
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In its most restricted use, the term parent refers only to a mother or father who is related to the child by blood. This definition holds whether the child is legitimate (the natural parents are married to each other) or illegitimate (the parents are not married to each other). As of 2003, as a result of statutes, adoptive parents have the same rights and responsibilities as natural parents. Other persons standing in the place of natural parents, such as stepparents, are not, however, given such extensive rights and responsibilities. Although in some instances foster parents and foster care agencies have the legal responsibility to nurture a minor, they are not entitled to the full status of parent.
A child is the issue or offspring of his parents. A posthumous child is one conceived prior to, and born after, the death of his father. Such a child has the same inheritance rights as a child born while his father is alive. A child is not entitled to full legal rights unless the child is born alive. The law does not ordinarily consider a fetus to be a child.
In 1874, a badly beaten girl known only as Mary Ellen became the first legally recognized victim of CHILD ABUSE in the United States. Before 1874, society offered little protection for minors. Children were considered the property of their parents, and neither the government nor private individuals intervened when they were injured, overworked, or neglected. Mary Ellen was rescued from unfit parents only after the American Society for the Prevention of Cruelty to Animals (ASPCA) stepped in on her behalf. ASPCA advocates pointed out that if Mary Ellen were a horse or a dog, her mistreatment would be prohibited by statute. A judge agreed that the young girl deserved at least the same protection as an animal.
The status of U.S. children has improved dramatically since Mary Ellen's ordeal. At the turn of the twentieth century, a nationwide child protection movement helped eliminate the long hours, poor wages, and punishing conditions faced by child workers. CHILD LABOR LAWS paved the way for later reforms regarding compulsory education, foster care, protective services, HEALTH CARE, and criminal justice for juveniles.
Just how far these reforms should go is the subject of debate. A mild uproar over children's rights arose during the 1992 U.S. presidential race between incumbent GEORGE H. W. BUSH (R) and challenger BILL CLINTON (D). Scholarly articles written in the early 1970s by Clinton's wife, HILLARY RODHAM CLINTON, were at the heart of the controversy. A former lawyer for the Children's Defense Fund, Clinton questioned the traditional legal presumption of INCOMPETENCY for children. She believed that children were capable of making many of their own decisions; thus she proposed the elimination of minority status for children and suggested a new presumption of legal competence. Clinton also favored granting children the same substantive and procedural rights enjoyed by adults. Further, because children's interests are not always the same as their parents', Clinton felt that minors should be allowed to hire their own lawyers.
During the presidential campaign, Clinton's views were attacked by political opponents who claimed she encouraged children to sue their parents. Her critics predicted that Clinton's ideas would lead children to "divorce" their parents over trivial matters such as curfews, homework, allowances, and household chores.
However, Clinton's views were actually much less extreme than those of so-called child liberationists who believe that children should be allowed to vote, choose their residence, refuse to attend school, enter into contracts, and take part in activities currently reserved for adults. More radical child advocates maintain that children are just as rational as adults and that the nation's commitment to justice requires equal treatment of all people, regardless of age.
Critics of children's rights believe conferring too many rights on children would erode parental authority and the traditional family. Many conservatives believe that children lack the wisdom to make important decisions and require the guidance of responsible adults. They approve of a paternalistic approach to children's welfare rather than one that empowers young people. Critics also resent the legal system's intrusion into parents' domain, arguing that parents are entitled to the final word in their children's upbringing. Conservatives fear that if children have ready access to attorneys, a rash of frivolous or retaliatory lawsuits will erupt, destroying many fragile families in need of help. So strong is this fear that the United States is one of only two countries (Somalia is the other) that have not ratified the United Nations Convention on the Rights of the Child. Among other concerns some critics have raised against children's rights are that children could be allowed legally to join GANGS or have ABORTIONS. Some critics have gone so far as to claim that ratification of the United Nations treaty would take control of children away from parents and hand it to the United Nations (even though the U.S. Constitution does not allow any treaty to override its precepts). Some groups, such as the Children's Rights Council (CRC), believe that children have the "right" to be raised in a two-parent household. One CRC goal is to keep marriages together, but, in the case of DIVORCE, it seeks to encourage parents to share custody equitably.
Three well-publicized cases illustrate the philosophical divide over children's and parents' rights.
Kingsley v. Kingsley In 1992, an eleven-year-old Florida boy went to court to terminate the rights of his biological parents. Gregory Kingsley retained attorney Jerri Blair to represent him in a proceeding to sever all ties with his natural parents, Rachel and Ralph Kingsley. Kingsley also petitioned for his own ADOPTION by his foster parents, Lizabeth and George Russ. Rachel Kingsley opposed her son's actions; her estranged husband did not.
Kingsley persuaded circuit court judge Thomas Kirk that he had been abandoned by his mother. Most of Kingsley's chaotic, impoverished life had been spent in and out of foster care. His unstable early environment was contrasted with the loving and more affluent home now offered by the Russ family. Kirk determined that Kingsley, a minor, had the capacity to bring the action and ordered both the termination of parental rights and the adoption.
Rachel's attorney, Jane Carey, complained that a child's wish had been declared more important than the preservation of the family. Carey worried that the termination of Rachel's rights sent a message to poor parents that they could never measure up to wealthier families. It also drove a symbolic wedge between U.S. children and their parents. To Gregory's supporters, however, the ruling was an important victory on behalf of neglected, mistreated children.
On appeal, Florida's Fifth District Court of Appeals determined that, as a minor, Kingsley could not initiate a proceeding to terminate his parents' rights (Kingsley v. Kingsley, 623 So. 2d 780 [1993]). Only a GUARDIAN AD LITEM, or friend of the court, could do so. Nonetheless, the appeals court upheld the termination of Rachel's parental rights because clear and convincing...
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