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

Parents, Children, and the Law Outline_Patterson_Fall 2014

Child Development Basics and the Status of Child and Parents at Common Law

Rule of 7’s – not used in South Carolina anymore

1-7: The child is incapable of having intent or the requisite culpability

7-14: Rebuttable presumption

14+: Capable of having criminal or tort liability

Piaget’s levels of development p. 211

Adolescent behavior: Peer influence; immediate gratification; riskier choices

Capacity to Contract

Mitchell v. Mizerski p. 849 Minor contracts for vehicle repair

RULE: All contracts of an infant except those for necessities are voidable by the infant at his or her election. Must be disaffirmed during infancy or within reasonable time after child turns 18. The adult has the responsibility for the obligation even if the child seeks to disaffirm the K or does not fulfill his obligations. If the minor ratifies the K after reaching age of majority, then the K is binding. When minor is emancipated, then they can K.

Tort Liability

Standard v. Shine p. 869 – SC

6 yo intentionally set fire to a building.

Parent liability: Statute 20-7-340: When any unmarried minor under the age of 17 and living with his parents shall maliciously and intentionally destroy, damage, or steal property, real or personal, the owner of such property shall be entitled to recover from such parents of the minor. Parents are liable for damages up to $1,000.

RULE: Negligence standard: a child of like age, intelligence, and experience under like circumstances.

Policy: Parents are expected to exercise reasonable care to keep their children from destroying the property of another.

Supp. 1-2 Legal capacity of minors

63-5-310: Ratification of minor’s contract

63-5-320: Capacity to borrow for higher education

Parent’s Support Obligation

The three duties of parents:

1) Support

2) Protection

3) Education

State ex rel. Hermesmann v. Seyer p. 799 Who has the most equities?

Duty to support arises from the assumption of legal parenthood

This case shows to whom the court attaches the duty to support

Babysitter who was 17 had sex with a boy who was 13. They had a baby together and she sought child support.

Policy: Father liable for support. The decision underlies the support policy and support for an innocent baby outweighs the protection of the father as a victim of rape.

Brad Michael L v. Lee D. p. 804 – Father did not know about his 15 yo. Child files action for support retroactively.

Equity issues: The child should not lose out because father didn’t know about him.

Two principles: Duty of support accrues upon birth of a child who you created then you have an obligation to support from birth.

Child Support Enforcement System

Enforced by the state, funded by the feds.


1) ID the father

2) Agency finds the father, does paternity test

3) Paternity and support order will be issued

4) Court can withhold wages or sell property

In order to coerce payment the court can:

Revoke a driver’s license or other licenses

Can hold father in contempt of court.

Family Privacy / State Parens Patriae Authority

Parens Patriae and Police Power p.16

The two sources of power for the state to protect the child

State police power: Gives the state the power to protect the health, safety, and welfare of the public. This allows the state to pass legislation that deals with the public

Parens Patriae doctrine: (parents of the country doctrine): Gives the state the right and responsibility to protect persons legally incapable of caring for themselves, including children.

The adoption of these two powers showed that the parental rights are natural and constitutional, but not inalienable.

Prince v. Massachusetts p. 27 – Post-Lochner era

Aunt of child was Jehovah’s Witness and child would stand on corner and preach with her. Charged with violating child labor laws.

STATE: Wanted to protect against child labor; the parents had the interest of being able to raise their children, and the child had a freedom of religion interest

The court must perform a balancing act between the private interests of the parents and children and the state’s interests.

State has an interest in upholding the law and enforcing child labor laws. State’s interest was stronger. Court upheld the law.

Wisconsin v. Yoder p. 79 (Parents’ interest in regulating basic education prevailed)

Compulsory school attendance statute through age 16; Amish parents did not send their 14-15 yo children to school. Three Amish parents were convicted and fined $5 each.

Child’s interest: Substantive right of Amish child to a secondary education. State’s interest and power as parens patriae to extend education to children regardless of the interests of their parents. States are interested in education because the state needs people who are productive/self-sufficient and who will engage in civic participation.

Holding: Wisconsin is imposing criminal penalties on the parents. The children are not parties to the litigation. Violated the parents’ rights under the First Amendment free exercise clause. DOES NOT determine proper resolution of a case in state court re: Amish parents who are preventing their children who wish to attend high school from attending.

Age of Majority/Mature Minors

Age of Majority: 18 in nearly all states

Status of “child” is complex: Law views children as vulnerable and needing protection in some cases and as individuals with rights, decision-making capacity, and personal responsibility in others.

Medical Decision Making: At common law, a minor generally lacks capacity to consent.

Recognized that the state is not capable of maintaining the parental

ement agency, fire station, emergency medical services station, or any staffed house of worship during the hours the facility is staffed. The infant must be less than 30 days old, unharmed, and left by the parent or other person acting for the parent. The law provides the parent immunity from prosecution if the conditions are met. A baby left under these conditions will be placed in DSS foster care and adoptions proceedings will be initiated immediately.

Abortion Statutes [Supp. 29-32]


This is the termination of minority status of a child prior to his 18th birthday; relates to the general age of majority; when law speaks in terms of age, your age is still in effect; terminates parents’ support obligation.

Is the child independent, self-supporting and able to enter into enforceable contracts?

In Re Thomas C. p. 196

RULE / STANDARD: The court must look at child’s best interest to determine whether the child is capable of living independently.

The legal effects of emancipation

Holding: Emancipation petition denied (best interests of child prevail). Parental rights to raise and nurture their children are strong. Parental obligations and duties may not be shed lightly.

Purdy v. Purdy [Supp. 37]

Daughter had moved out to live with her boyfriend, got pregnant, has part-time job, and her father wants emancipation for her. Mother objected. Father wanted it because he did not want pay child support anymore. Support obligation continues until the child reaches majority, becomes self-supporting, or marries.

Grounds for emancipation:

Child has moved out of the home with permission of the parents; successful cases most often are filed jointly by the child and parents.

If the minor marries, it can be automatic.

Or if the minor is on active duty in the military

The minor willingly lives separate and apart from parents, with or without permission, and is supporting herself.

Some states require permission

Willingly element: Meaning the parents cannot kick out the minor and then try to have her emancipated.

Court held that daughter was not fully self-supporting to rise to emancipation.

McLeod v. Starnes [Supp. 59]

Requiring non-custodial parents to pay for child’s education does NOT violate the equal protection clause.