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Child, Family and State
Wayne State University Law School
Morrison, Adele M.

Child, Family, State
Professor Morrison
Fall 2011
I.                   Parents & Children: Parents support; Children Obey
A.    Family Privacy
1.      Roe v. Doe – dad has right to make reasonable rules for daughter to abide by (i.e. she either has to stay in dorms or come home)
a.       If rules are unreasonable, daughter may have a case that father has to financially support her still.
b.      But, when daughter chooses to leave the parent’s home to seek her own fortune in the world (must be a child of employable age), that child forfeits the right to support (financially)
c.       Concurrence: don’t even look to see if father was reasonable
2.      Sisson v. Sisson – law will not regulate the internal affairs of the home (how a child should be educated), except in cases where the child’s health or morals are put in jeopardy. (H,S,W = health, safety, welfare of child)
3.      Notes:
a.       Parents = supposed to provide support for child
b.      Child = duty to obey (reasonable rules of parents)
c.       Law will step in when there has been harm done
d.      Default position: For the most part, law will not involve itself in parent-child relationship (doctrine of family privacy)
B.     Encroachments on the Doctrine of Family Privacy
1.      Constitutional Law
a.       Prince v. Massachusetts (1944) – jehovah’s witness allowed daughter to pass out pamphlets in the street at night, got some money for it.
(1)   Rule: Custody, care, and nurture of a child resides first with the parents (i.e. right to upbring a child in a certain religion as long as it doesn’t harm the HSW (health, safety and welfare); child also has a right to exercise its own religion, as long it doesn’t jeopardize his health, safety, or welfare
(2)   BUT state can require school attendance or prohibit child’s labor, or when child’s health is in jeopardy. (i.e. this was an instance where the activity was likely to adversely affect the child’s health, morals, and welfare) WHEN THERE IS HARM (we’ll talk about defining harm)
(3)   Class notes: The state has more power to interfere with family privacy when a child’s health, welfare is at stake than when state is dealing with an adult
(4)   Dissent: Freedom of religion outweighs the need to interfere for child safety’s here
b.      Parham v. J.R. (1979) – a fact-finding hearing is not necessary before putting a child into mental hospital when parent’s want to and doctor thinks its OK. Its not a due process violation.
(1)   Parents have broad, sweeping power generally.
(2)   Here, the kids thought parents had too much power b/c they could just dump hard-to-handle kids in mental hospitals.
(3)   When will state encroach here (i.e. go against parents wishes): has to be HARM shown
(4)   There is a presumption that the parent is acting in the child’s best interest
2.      Tort Law
a.       Goorland v. YMCA – parent left kid unattended in parking lot where he got hit by a car. Insurance co. is cross-suing parent for negligent supervision.
(1)   Minority Rule (as articulated in this case): generally there is parental immunity. (We’re not going to encroach upon the Parent-Child relationship!!)
(a)    Where parental control, authority, or discretion is at question (i.e. a negligence claim) Parental immunity precludes direct claims by a minor child
(b)   If parents negligence is relevant to minor child’s theory of liability, a defendant may introduce evidence to establish that the parent’s negligence was a supervening cause (then YMCA would not be liable)
(c)    If parents negligence was a proximate cause but not a supervening cause, YMCA may still be liable. Because a parent cannot be a joint tortfeasor.
(2)   Majority Rule in America: absolute parental immunity has all but disappeared.
b.      Popple v. Rose (1998) – parents duty to warn others about son. Issue of “failure to warn”.
(1)   Rule: Parents do have duty to warn if they are aware of the child’s known, habitual, dangerous propensity.
(2)   Here, the Rose’s had no prior evidence of their son’s dangerous sexual propensities (it had never happened before).
(3)   However, like many states, Rose’s were held liable through vicarious liability
c.       Duties
(1)   Is there a duty of DF to protect Plaintiff from harm? (Parents have a special relationship which creates a duty – to warn)
(2)   Parents must Know of propensity – here they did not
(3)   Parents must have ability to control their child- they could not control, here
d.      Giuliani v. Guiler – yes, logical next step is that there should be a claim available for a loss of parental consortium (for a child)
e.       Gallimore v. Children’s Hospital Med. Center – recognizes parents right for loss of consortium when minor child is injured by a 3rd party tortfeasor
(1)   No longer for loss of child as an economic asset
(2)   Nowadays, comfort, companionship, and love is essence of the parent-child relationship
3.      Criminal Law (3rd Encroachment on Doctrine of Family Privacy)
a.       Connecticut v. Miranda – can boyfriend be convicted of assault for failing to protect victim from physical abuse by her mother?
(1)   No. Cannot be convicted of assault because NO duty. He is only the boyfriend… NOT a parent or legal guardian. (Should he be??)
(2)   Concurrence: (different reason): failure to act cannot constitute assault.
b.      Diehl v. State – daughter was informant against parents for growing marijuana. Was she credible? Yes.
(1)   Dissent: should be a “private sanctuary” of family life; should be parent-child immunity.
C.     When Parent, Child, & State Disagree
1.      Name
a.       Henne v. Wright
2.      Education  – nowadays, states require children to attend school for 9 or more years
a.       Pierce v. Society of Sisters – 2 private schools challenge statute that requires school attendance at public school
(1)   Used the Due Process Cl of 14th Amendment to overrule statute
(2)   Child is not the mere creature of the state
b.      Mozert v. Hawkins County Bd. of Ed – TN required use of a particular set of reading books, some “born-again” Christians objected
(1)   Free exercise Clause of First Amendment (religion)
(2)   Held: There is no compulsion, no requirement to believe something. Plus you can send them somewhere else!
(3)   No undue burden on the free exercise clause.
c.       Zelman v. Simmons-Harris – people thought voucher money was skewed towards religious schools in Cleveland
(1)   Held: the program is neutral in respect to religion; it is a matter of private choice
d.      Cedar Rapids v. Garret F. – Individuals with Disabilities Act mandates that state provide special/needs/ed kids with public schooling and “related services”
(1)   Held: Related services – court says everything that can be done by “school health services” is required; but not anything requ

Problems arise, though, when the question is what is life-threatening?
(2)   Presumption of parental best interest – can be overcome by 1. Clear and convincing evidence that parental custody is detrimental/harmful to child and 2. The alternative decision is in the best interest of the child (see above in outline)
D.    The Child Born Out of Wedlock
1.      Lalli v. Lalli – illegitimate children need proof of paternity for inheritance; legitimate do not
a.       Equal Protection Grounds
(1)   The state goal of ‘orderly distribution of property upon death’ is substantially related to the state interest
(2)   Prof: so you have to take proactive steps to prove a parent-child relationship
2.      Clark v. Jeter – statute: illegitimate child has to seek paternity suit 6 years or less after birth; legitimate children can seek support anytime
(1)   Intermediate scrutiny is used (Equal Protection Grounds): test:
(a)   Part one – the statute of limitations must be sufficiently long enough to provide a reasonable opportunity to obtain support
(b)   Limitation must be substantially related to state’s interest
i.                    State’s interest is in avoiding fraudulent or stale claims
(2)   Court says the limitation is not substantially related
i.                    Court notes that other states have longer than 6 years, and there are no problems there
(3)   Prof: this reinforces that parents have duty to support their children!
3.      People in Interest of S.P.B. – dad doesn’t want to pay child support b/c he wanted the baby aborted
a.       Equal Protection Grounds – intermediate scrutiny for gender discrimination
(1)   State’s interest in ‘securing for each child care & guidance’ does meet important state interest req. – no violation of equal protection
(2)   On a balancing test, a woman’s rights to decide about her child outweigh the man’s rights to choose
b.      Due Process Claim: (note: this statute had a presumption in it, which is disfavored, but given great deference) statutory presumption can only be invalidated:
(1)   If presumption in the statute is not neccesarilly universally true AND
(2)   State has reasonable alternative means of making the crucial determination
i.                    Court: we’re not going to step in to find if the “nexus” relationship was broken between conception and child birth
c.       Note: There is a presumption that there is a nexus between conception and childbirth – cant do it on a case by case basis
d.      Is there any way for a biological father’s responsibility to the child to be waived?
(1)   If he was tricked into it (misrepresentation)
(2)   AND the mother actually can support the child      
(3)   OR complete termination of parental rights