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Parental Rights - Legal Relationships

Parent and Child is a branch of the law of domestic relations that determines the legal rights and obligations of fathers or mothers to their children and of children to their parents. The legal relationship is distinguished from the natural relationship; for example, two persons may have a legal relationship of parent and child although there is no natural relationship, as in the case of an adopted child.

In common law in the United States, parents were the legal as well as natural guardians of their child. They had the right to name the child and were entitled to custody. As custodians, they could reasonably chastise the child, but for excessive punishment the parents were criminally liable for assault, or for homicide in case of death. The father was deemed entitled to custody of the child in preference to the mother. A parent was not liable for a tort (wrongful act) of the child unless its commission was incited or authorized by the parent. A parent could recover damages for torts committed against the child. In common law, the parent was not civilly liable to maintain the child, but was criminally responsible in cases of neglect, as when failure to provide food or clothing caused injury or death.


The legal relationships of parent and child established under common law have been modified by statute in the U.S. In general, such statutes provide that a married woman is a joint guardian of her children with her husband, with equal powers, rights, and duties. Either parent has the right to custody of the children of the marriage, and in a divorce or separation the court can award custody to the parent best qualified and able to care for the children. Parents must provide for their children such necessities of life as food, clothing, shelter, education, and medical care; if they cannot or will not, state laws authorize intervention by designated authorities to ensure that children's needs are met. Children who are physically or emotionally abused by their parents may be the subject of legal action in order to protect the children. Parents' rights to custody of their children may be limited or, in extreme cases, terminated because of failure to provide adequate care. Laws require a father to support his minor children if he is able to do so, whether or not he has ever been married to their mother. Failure to provide support may result in civil or criminal proceedings against him. If paternity has been admitted or established, laws permit children to inherit from their father's estate unless specifically excluded in his will.


Surrogate motherhood has become one of the most difficult problems in modern family law. The term surrogate mother was first used in connection with in vitro fertilization in the late 1970s. The newest use refers to the introduction, by artificial insemination, of the sperm of a man whose wife is infertile into a woman who has agreed, often by contract, to bear the child conceived as a result of the insemination and then relinquish it to the couple after birth.

One argument against surrogacy is that it is little more than formalized baby selling. The counter-argument is that surrogacy is not baby selling because the husband of the couple receiving the child is that child's biological father. Many state legislatures are considering bills that would either make surrogate parenting entirely illegal or strictly regulate it, for example, limiting or prohibiting the payment of fees to the surrogate or to intermediaries. Most would require psychological counseling for the prospective surrogate mother, legal representation for all parties, and court approval of the contract.

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