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Parents, Children & the Law
University of South Carolina School of Law
Patterson, Elizabeth G.

Parents, Children, and the Law Outline 2013 – Patterson
 
Children, Parents, and Families in the law
Child Development Research:
 
–          Piagetian Cognitive Development Theory: (Jean Piaget)
o   Knowledge develops continually from a state of lesser knowledge to one that is more complete and effective.
o   Four Levels of development:
§  Level One: Sensory motor period: Occurs from birth-2 years old
·         During this stage, children begin to demonstrate mentally inventive acts of intelligence
§  Level Two: preoperational thought period- occurs between 2-7
·         Children gain a facility for language and move from simple problem solving to logical thought
·         Children under the age of 7 cannot engage in truly intellectual activity
§  Level Three: Concrete operations period- occurs between 7-11
·         Children begins to understand causation, gain a more objective view of the universe, and a better understanding at other people’ perceptions
·         Children begin to understand why physical events occur.
§  Level Four: Formal Operations Period: occurs between 11-15
·         Children can imagine the past, present, and future conditions of a problem and create hypotheses about what might logically occur under different conditions
·         They can hypothesize, draw deductions, understand theories, and combine them to solve problems
·         A child’s thinking has evolved into a mature state and adult thought exists within the child’s repertoire of mental functions
The Child at Common Law
Mitchell v. Mizerski: 16-year-old minor entered into an agreement to have vehicle repaired with car body shop.
–          Rule: an infant does not have the capacity to bind himself absolutely by contract.
o   Because the repairs to the car were not necessaries, Travis is entitled to disaffirm the contracts while he is a minor or within a reasonable time after reaching the age of majority and to have all amounts he paid under the contract returned to him
–          Policy: aim is to discourage adults from contracting with an infant; they cannot complain if, as a consequence of violating the rule, they are unable to enforce their contracts
o   Age of contractual capacity is 18
–          Disaffirmance: a minor’s contract is voidable by the minor, provided that the minor disaffirms the contract during minority or within a reasonable time after reaching majority.
–          Ratification: the minor loses the right to disaffirm a contract when, after reaching majority, the minor party agrees to perform any part of his obligations under the contract
o   Examples of ratification: 1) an acknowledgement of or promise to pay such debt made in writing; 2) Partial payment; or 3) disposal of part of property.
–          Adult co-obligators: parents who co-sign has the responsibility for the obligation even if the child seeks to disaffirm the contract
–          Restitution: when the minor disaffirms, the minor must return any property he received under the contract and still possesses or controls. If the minor has dissipated or negligently destroyed the property in the interim, he may disaffirm without returning it
–          Age misrepresentation: no contract can be disaffirmed in cases where the minor misrepresents his age to an adult
–          NECESSARIES DOCTRINE: when a person provides a minor with a necessity of life under circumstances indicating that the person expected payment pursuant to an agreement, the minor is not liable for the contracted price, but is liable for the reasonable value of what was provided under the contract.
o   what constitutes a necessaries is not fixed, but depends upon such factors as the minor’s standard of living and particular circumstances
o   Ex. When the parent has the ability and is willing to support his minor child, board and lodging are not considered necessaries for which the infant is liable.
Parent Support Obligation
State Ex Rel. Hermesmann v. Seyerr: Babysitter had sex with minor. She was 17, he was 13.
–          Rule: if voluntary intercourse results in parenthood, then for purposes of child support, the parenthood is voluntary. This is true even if a fifteen-year-old boy’s parenthood resulted from a sexual assault upon him within the meaning of the criminal law
o   Kansas Parentage Act specifically contemplates minors as fathers and makes no exception for minor parents regarding their duty to support and educate their child.
o   The issue of consent to sexual activity is irrelevant in a civil action to determine paternity and support of a minor child of such activity.
–          Public Policy: the state’s interest in requiring minor parents to support their children overrides the state’s competing interest in protecting juveniles from illegal acts.
–          Men may also wrongly believe they are a child’s father and be obligated to pay support because they acknowledged paternity without paternity testing, or because they are presumed father because they are married to the mother. The support obligation may continue even after genetic testing has shown that someone else is the father because of equitable remedies such as estoppel or because of state laws limiting rescission of paternity acknowledgments.
Brad Michael L. v. Lee D: Lee’s blood test proved him to be the biological father. He testified that he had no knowledge of Brad’s existence for the first 15 years of his life.
–          Trial court denied past support because he had not known of Brad and had no opportunity to develop a relationship with him, but ordered Lee to pay $500 monthly for future support
–          Rule: a number of jurisdictions have enacted statutes that extend the parental support obligation beyond 18, including an extension for higher education
–          Rule: Initially, only divorce of parents was required to pay for child’s post-secondary education if they were financially able to do so. Now, never-married parents also have been required to provide support for a child over the age of majority who is in college.
Child Support Policies:
–          Why do we need Child Support?
o   Children with one uninvolved parent tend to have more behavioral problems
o   Many children living in single-parent households are living in poverty
–          Child Support affects Marriage and Families
o   Strong child support programs keep families together, higher support =lower divorce rates. Fathers who pay child support are more likely to remain in their lives
–          Child Support Affects States
o   States become surrogate guardians for kids with problems; kids with child support have fewer problems
o   States also have to deal with future costs of child well-being through lower juvenile and criminal court costs
Six Steps for Child Support Enforcement:
–          Step One: Getting Child Support
o   1- locate noncustodial parent
§  New Hire Directories: employers must report all new employees to the state new hire directory within 20 days
§  Federal Parent Locator Service
§  Data Matches
§  Statewide Automated Systems
o   2- establish paternity
§  State programs must establish paternity before the child reaches 18
§  State programs must permit parties to contest acknowledgments and court orders within 60 days. After that, challenges are only allowed on the basis of fraud, duress, or mistake of fact
§  Fathers may acknowledge paternity voluntarily by signing an affidavit of acknowledgment at the time of birth
o   3- establish child support orders
§  States use 3 models to calculate appropriate guideline amounts: 1) Income Shares Model; 2) Percentage of Income Model; 3) Melson Formula model
§  Income Shares Model (used in SC). Looks at income and assets and expenses of both parents, allocates how much each party is responsible for
o   income Is determined by one of 2 ways: gross income( all income with no deductions) or net income (all income with deductions from taxes
·         Percentage of Income Model: Used in 11 states, this model sets support as a percentage of the noncustodial parent’s income only
·         Melson Formula Model: used in 3 states,
o   Income Shares Model (used in SC). Looks at income and assets and expenses of both parents, allocates how much each party is responsible for
o   4- Enforce Child Support order
§  All child support orders are handled by the state system and are subject to automatic income withholding when a delinquency of at least one month occurs
§  States may also enforce child support through:
·         License restrictions, property liens, income tax refund intercepts, etc.
o   5- Distributing Child Support
o   6- Reviewing child support orders periodically and modifying them when appropriate
Emancipation: Pgs. 196-202, Supp. 54-56
In Re Thomas C:  Thomas was a problematic child and parents expressed concern about their vicarious financial liability for civil or criminal wrongdoin

safety, welfare and morals; trying to protect public generally
–          parens patriae: regulation to care for and protect (rather than regulatory) the person, i.e. abuse, neglect, foster care, adoption, medical decision-making, support and delinquency, until child reaches age of majority; state acts in a parental role to make decisions for or care for a vulnerable person
o   protection in street about protecting the child, parens patriae
o   police power in child labor b/c it benefits the society as a whole when healthy, well-rounded young people grow into full maturity as citizens; also child labor falls under the parens patriae power
o   both powers are really strong, but the parens patriae has a shakier legal history than the police power
o   whenever there is a parens patriae power, you can almost always find a police power justification as well
Troxel v. Granville: Grandparents wanted visitation rights to their children, and parents opposed grandparent’s visitation rights.
–          Rule: the Due Process Clause does not permit a State to infringe on the fundamental right of parents to make child rearing decisions simply because a state judge believes a better decision could be made.
–          The court acknowledged that the Meyer-Pierce-Prince line of decisions confers on parents a due process right to direct their children’s upbringing.
–          parent’s interest: control of the upbringing, including associations of the child
o   Why would mother care about kids being gone two weekends per month?  New family, religious upbringing, keeps child from family and friends
–          Child’s interests: Interest in knowing grandparents, interest in having strong relationship with someone they have already developed a relationship with (protect relationships), interest in consistent and coherent upbringing
–          state’s interest: essentially the best interest of the child, which can fit in with the child or the parent’s interest
–          Dissent: The weighing process must consider “the child’s interest in preserving relationships that serve her welfare and protection.” Visitation disputes do not present a struggle between the parents and the State over who has final authority to determine what is in the child’s best interests.
–          Would all grandparent visitation statutes be struck? How about visitation may be awarded if in the best interest of the child after considering the views of the parent? This takes away presumption and gives the Court the right to choose.  That doesn’t work.
o    Maybe: Court can award visitation over parent’s objections if it find that the child has a strong relationship, etc.  Maybe some factual findings that would be a basis for overriding the parent’s presumption.
§  Has to give presumption to parent for best interest of the child.
Constitutional Rights of the Child:
Gault: Held that children are persons under the 14th Amendment, overcoming Constitution’s failure to explicitly mention children.  However, there is a wider scope for state regulation than there would be for children than adults.  Children do have 1st, 4th Amendment rights, but the state has greater power to regulate children in those areas than adults.
–          Gault undermined the state’s parens patriae authority to exercise informal discretion in delinquency proceedings.
Tinker v. Des Moines Ind. Comm. School Dist: several students wanted to wear black armbands to show objection to Vietnam.  School decided to prohibit this and the kids were suspended
–          Court ruled in favor of the students.