Parental Duties Owed to Children

• Pages: 167-185
• Author: Walter Wadlington,Raymond C. O'Brien,Robin Fretwell Wilson

167

Chapter 8

PARENTAL DUTIES OWED

TO CHILDREN

I. The Best Interest of the Child

In 2000 Justice Sandra Day O’Conn or, writing for the majority

in the United States Supreme Court de cision of Troxel v. Granville,

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reaffirmed the fundame ntal liberty interest of parents in the care,

custody, and control of their children. The effect of this is to cre ate a

presumption that parents presumptively act in their child’s best

interest and the refore be fore a court may consider the child’s best

interest separately, the c ourt must overcome the presumption in

favor of the parent’s decisions pertaining to the child.

Balanced against the Fourteenth Amendment’s Due Process

fundamental right of the parent to raise a child are the sometimes

competing rights of the child to life, liberty, and the pursuit of

happiness. Courts often struggle to balance the parent’s right to

decide what is best for a child when it appears the parent’s judgment

is faulty. What follows is a brief list of issues illustrating conflicts

between what a parent presumes to be in the best interests of his or

her child, and what a child, or a person advocating for a child,

perceives to be in the child’s best interests.

A. Emancipation from Parental Authority

By law, parents are tasked with providing a child with financial

support, h ealth care, education, and supervision during the child’s

minority. Because of this re sponsibility imposed by law, the law

permits a parent to discipline a child, and to regulate such things as

what the ch ild wear s, wh ere the child goes to school, wh ether the

child has religious training, what the child eats, and the type of

medical care a child receives. The parent is entitled to the child’s

services and to any financial earnings p aid to the minor. Only upon

the child’s becoming emancipated, almost always by at taining the

age of majority, does this arrangement cease. In the interim, if the

child is blatantly disobedient, truant, or flees the h ome, the parent’s

authority may be complemented with state rehabilitative or juvenile

services.

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1

530 U.S. 57 (2000).

2

See, e.g., State ex rel. S.S., 842 A.2d 904 (N.J. App. Ct. 2004) (court ordered

trial court to find alternative living arrangements or treatments for minor).

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PARENTAL DUTIES OWED TO CHILDREN

Ch. 8

Some states provide for emancipation by statute. California, for

example, provides that a minor may become emancipated if the

minor is married, on active duty in the armed forces, or obtains a

judicial decree of emancipation. To obtain the judicial decree of

emancipation the minor must: (1) be at least fourteen years of age,

(2) willingly live apart from his or her parents by mutual consent, (3)

successfully manage his or her own financial affairs, and ( 4) derive

no income from criminal activity.

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Conflicts over discipline, lifestyle choices, schooling, or home

environment most often cause minors to seek emancipation. And the

reverse is likely true too. Adult p arents may wish to divest

themselves of duties to support and care for their children. Other

than through Safe Haven statutes, wh ich permit parents to

relinquish newborns,

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a parent is obligated to provide financial

support and care to a minor child. Further, a parent may not

manufacture grounds for emancipation as a way to avoid the duty of

support.

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Emancipation may occur piecemeal. Under the common law, a

child was emancipated upon becoming a parent himself or herself. In

addition, a s noted infra and in Chapter 7, a significant number of

states provide a judicial bypass to children who do not want to seek,

or who cannot obtain, a parent’s permission for certain medical

procedures, such as abortion.

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In this mechanism, judges provide the

needed permission to medical professionals to care for the child, often

after evaluating the child’s maturity and w hether the procedure

promotes the child’s best interests.

Some states allow for a minor to consent to medical treatment

for himself or herself if the treatment relates to sexually transmitted

diseases, drug abuse, or me dical conditions related to pregnancy.

Some statutes allow a mi nor to refuse extraordinary mean s of life-

support. For the minor’s consent to be valid, the unemancipated

minor must be of sufficient intelligence to understand and appreciate

the co nsequences of the proposed surgical or medical treatment or

procedures to be performed.

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And increasingly, courts are more

willing to allow a mature minor to consent to medical procedures over

3

See Emancipation of Minors Law, CAL. FAM. CODE § 7120 (West 2020); Bonnie

P. v. Superior Court, 37 Cal. Rptr.3d 77 (Cal. Ct. App. 2005) (holding child not

emancipated).

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See, e.g., FLA. STAT. ANN. §§ 383.50–51 (West 2024); In re Doe, 3 A.3d 657 (N.J.

Super. Ct. 2010) (reviewing the elements of the state’s Safe Haven statute).

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Purdy v. Purdy, 578 S.E.2d 30 (S.C. App. 2003) (father helped daughter get

apartment and then claimed she was emancipated so as to be relieved of child support

obligation).

6

CAL. FAM. CODE §§ 6920 et seq. (West 2024).

7

See ARK. CODE ANN. § 20–9–602(7) (West 2024).