Vickipedia

PARENT AND CHILD. The legal relation between parent and child is one of the incidents or consequences of the relation of husband and wife, and flows out of the contract of marriage. The legal is to be distinguished from the natural relation, for two persons may be by the law of nature parent and child, while they are not legally or legitimately so. Hence a radical distinction exists between natural or illegitimate and legitimate children, and their legal rights as against their parents respectively are very different. Legitimate children are the children of two parents who are recognized as married according to the laws of the country in which they are domiciled at the time of the birth; and according to the law of England, if a child is illegitimate at the time of the birth, nothing that can happen afterwards will ever make it legitimate, the maxim being ‘ once illegitimate always illegitimate ‘— a maxim which, as will be stated, has some exceptions in Scotland. In treating of the laws affecting the mutual relation of parent and child, the laws of England and Ireland, which differ from the law of Scotland in material respects, will first be stated.

1. As to Legimitate Children.—These laws relate first to the liability of the parent to maintain the child, and the rights of the child in the event of the parent’s death. As regards the maintenance of the child, it is somewhat singular that, according to the law of England, there is no duty whatever on the parent to support the child, and consequently no mode of enforcing such maintenance. The law of nature was probably considered sufficient to supply the motives which urge a parent to support the child, but the municipal law of England has not made this duty compulsory. This defect was to some extent remedied when what is called the Poor-Law was created by statute in the reign of Elizabeth, by which law parents and children are compellable to a certain small extent, but only when having the pecuniary means to do so, to support each other, or rather to help the parish authorities to do so. But apart from the Poor-Law statutes, there is no legal obligation on the parent to support the child, nor on the child to support the parent. Hence it follows, that if the child is found in a destitute state, and is taken up, fed, and clothed, and saved from starvation by a stranger, such stranger cannot sue the parent for the expense, or any part of it, however necessary to the child’s existence.

In order to make the father liable for maintenance, there must in all cases be made out against him some contract, express or implied, by which he undertook to pay for such expense; in other words, the mere relationship between the parent and child is not of itself a ground of liability. But when the child is living in the father’s house, it is always held by a jury or court that slight evidence is sufficient of, at least, an implied promise by the father to pay for such expenses. As, for example, if the child orders clothes or provisions, and the father see these in use or in process of consumption, it will be taken that he assented to and adopted the contract, and so will be bound to pay for them. So if a parent put a child to a boarding-school, very slight evidence of a contract will be held sufficient to fix him with liability. Nevertheless, in strictness of law, it is as necessary to prove a contract or agreement on the part of the parent to pay for these expenses as it is to fix him with liability in respect of any other matter. When it is said that a parent is not compellable by the common law to maintain his child, it must, at the same time, be observed that if a child is put under the care and dominion of an adult person, and the latter wilfully neglect or refuse to feed or maintain such child, whereby the child dies or is injured, such adult will incur the penalties of misdemeanor; but this offence does not result from the relationship of parent and child, and may arise between an adult and child in any circumstances, as where a child is an apprentice or servant.

The change as to the liability of parents to maintain their children created by the Poor-Laws amounts merely to this, that if a person is chargeable to the parish, that is, not able to work as well as destitute, and if the overseers or guardians are bound to support him or her, then the parish authorities may reimburse themselves this outlay, or part of it, by obtaining from justices of the peace an order commanding the parent or child of such pauper to pay a certain sum per week towards the relief. This is, however, only competent when the relative is able to pay such sum, and in all cases the sum is of necessity very small. Not only parents, but grand-parents, are liable under the Poor-Law Act to the extent mentioned. Another provision in the Poor-Law and other kindred acts is, that if a parent runs away and deserts his children, leaving them destitute and a burden on the parish, the overseers are entitled to seize and sell his goods, if any, for the benefit and maintenance of such children; and if the parent, so deserting the children, is able by work or other means to support them, such parent may be committed to prison as a rogue and vagabond. Not only, therefore, is a parent during life not bound to maintain his or her child (with the above exceptions), but also after the parent’s death the executors or other representatives of the parent, though in possession of funds, are not bound. It is true that if the parent die intestate, both the real and personal property will go to the children; but the parent is entitled, if he choose, to disinherit the children, and give away all his property to strangers, provided he execute his will in due form, which he may competently do on death-bed if in possession of his faculties.

Another important point of law, affecting the mutual relation of parent and child, is the right of the parent to the custody of the child. At common law it is the father who has the right to the custody of the child until majority at least, as against third parties, and no court will deprive him of such custody except on strong grounds. Whenever the child is entitled to property, the Court of Chancery so far controls his parental right, that if the father is shown to act with cruelty, or to be guilty of immorality, u guardian will be appointed. A court of common law also has often to decide in cases of children brought before it by habeas corpus, when parties have had the custody against the father’s will. In such cases, if the child is under fourteen, called the age of nurture, and the father is not shown to be cruel or immoral, the court will order the child to be delivered up to him; but if the child is above fourteen, or, as some say, above sixteen, the court will allow the child to choose where to go. So the father is entitled by his will to appoint a guardian to his children while they are under age. The mother had, at common law, no right as against the father to the custody of the children, however young; hut under a statute of 36 and 37 Vict. c. 12, she is entitled to the custody of the child while under sixteen years of age, or rather she is entitled to apply to the Court of Chancery for leave to keep the children, while under that age, provided she is unobjectionable in point of character; and access may be allowed to the father or guardian. If the parents separate by agreement, no stipulation will be enforced which is prejudicial to the child. In case of divorce or judicial separation, the Court of Divorce has power to direct who is to have the custody of the children.

2. Illegitimate Children.—It has been already stated that, at common law, the parent of a legitimate child is not bound to maintain it, and this is equally true of an illegitimate child—i. e., a child born not in wedlock. In strictness of law, an illegitimate child has no father, which means practically that in case of the death of the father without making a will, the law will not treat such child as entitled to the ordinary legal rights of a legitimate child—i. e., to a share of the father’s property. The child is not legally related to the father in this sense. With regard to the another, she also is not bound to maintain her child according to the common law; but the Poor-Law acts have made an important qualification of her rights and duties. As between the father and mother of the child, the law is this: The father is not bound even by the Poor-Laws to maintain the child, and the parish officers cannot now institute any proceeding whatever against him for this purpose; but the mother can, to a certain extent, enforce against him a contribution towards the child’s maintenance and education, or the guardians may do so. It is entirely discretionary on the mother to take any proceeding against the father, but if she chooses she can do so; and the first step is to go before a justice of the peace and obtain a summons of affiliation. The father is thus cited before the magistrate, and if the mother swears that he is the father of the child, and is corroborated in some material part of this statement by a third party, the magistrate may make an order against the father to pay the expenses of lying-in, and a weekly sum not exceeding five shillings till the child attains the age of sixteen. The mother may make this application either a few months before the birth, or within twelve months after the birth; and even after that time, provided she can prove that the putative father paid her some money on account of the child within such twelve months. The putative father, in these cases, is a competent and compellable witness.

The utmost, therefore, that the father can be made to contribute towards the child’s maintenance is only a portion of the whole, the chief burden being thrown on the mother, who is assumed to be the more blameable party. Though she is not bound by the common law to maintain her child, yet the Poor-Laws make her liable to maintain the child till it attains sixteen; and not only is she bound, but any man who marries her is also by statute bound to support all her illegitimate (and also legitimate) children till they attain sixteen. The result is, that illegitimate children under sixteen are better provided for by the present state of the law than legitimate children, inasmuch as the mother is positively bound to support her illegitimate child, and only to a less extent her legitimate child. As regards the custody of illegitimate children, the mother is the party exclusively entitled, for the father is not deemed, in point of law, to be related to such child. Yet if the father has, in point of fact, obtained the custody of such child, and the child is taken away by fraud, the courts will restore the child to his custody, so as to put him in the same position as before. Though illegitimate children will not succeed to the father’s property in the event of his dying without a will, there is nothing to prevent him making his will in their favor, provided he expressly name and identify them, and not leave it to them by the description of ‘his children,’ which in point of law they are not.

Scotland.— The law of parent and child in Scotland differs materially from the law of England and Ireland. In Scotland, a child may be born a bastard, and yet if the parents afterwards marry, this will legitimize the child, and give the child the right to succeed to the father’s property. A difficulty sometimes arises where, before the father and mother of a bastard marry, the father has had a legitimate family by another woman, in which case it is held that the bastard, though oldest in point of age, does not take precedence of the legitimate children. The law of Scotland also differs from that of England as regards the obligation of parent and child to maintain each other. There is a legal obligation on both parties to maintain each other if able to do so, and either may sue the other for aliment at common law; but this obligation extends only to what may be called subsistence money, and does not vary according to the rank of the party. Thus an earl is bound to pay no more for the aliment of his son than any other father. As regards all maintenance beyond mere subsistence, the law does not materially differ from that of England, and a contract must be proved against the father before he can be held liable to pay. The legal liability as between parent and child is qualified in this way by the common law, that if a person has both a father and a child living and able to support him, then the child is primarily liable, and next the grandchild, after whom comes the father, and next the grandfather. Not only are parent and child liable to support each other while the party supporting is alive, but if he die, his executors are also liable; and this liability is not limited by the age of majority, but continues during the life of the party supported. Such being the common law of Scotland, it was scarcely necessary, as in England, for the Poor-Law to supply any defect; but the Scotch Poor-Law supplements the common law, by imposing a penalty on a father or mother (though not vice versa) who neglects to support a child.

Another advantage which a Scotch child has over an English child is, that the father cannot disinherit it—at least so far as concerns his movable property; and even in case of heritable property, the rights of the child were so protected, that unless the father made away with his heritable property sixty days before his death, or while in sound health, it was too late to prejudice his heir-at-law; this rule was, however, abolished in 1870 by 34 and 35 Vict. c. 81. This was called the Law of Deathbed (q. v.); but as regards the father’s movable property, he cannot by any will he can make at any time of his life deprive the children of one-third, or, if their mother is dead, of one-half of such property. This is called the children’s right to Legitim (q. v.),a right which they can vindicate, whatever may be their age when their father dies. With regard to the custody of children in Scotland, the rule is, that the father is entitled to the custody as between him and the mother; but the Court of Session has power to regulate the custody in case the children are entitled to property, and the father is of an immoral or cruel character; and the court will also interfere to allow to the mother access to the children at certain times and seasons. Another important difference between a Scotch and English child is this, that whereas in England the father or guardian, or the Court of Chancery, has power to control the custody of the person of the child to a certain extent, until the child attains the age of 21. in Scotland such power entirely ceases when the child attains the age of 14 or 12, according as such child is male or female. At the age of 14, a boy, and at 12, a girl, in Scotland, is entire master or mistress of his or her movements, and can live where he or she pleases, regardless of any parent or court They can marry at that age at their own uncontrolled discretion, and act in all respects with the same freedom as adults. As regards the disposition of their property there are some restrictions, but as regards the disposal of their persons there are none, after the ages of 14 and 12 respectively.

2. Illegitimate Children.—The law of Scotland as to illegitimate children also differs in some respects from that of England. Both the father and mother of a bastard are bound by law to support such child, and the obligation transmits to the personal representatives of the father or mother. Moreover, by the Poor-Law statute both are liable to a penalty for neglecting to support the child. The mother of illegitimate children is entitled to their custody till the age of ten, if daughters, and if sons, till the age of seven; but the limit is not clearly defined. If the father support the child after the above age, he is entitled to the custody. The mother does not apply to a magistrate for a summons of affiliation in order to fix the paternity; but she may bring an action of filiation and aliment, in which the question of paternity is settled. The father may be judicially examined, and is a competent witness; and it is usual for the court to decree an aliment, varying from £4 per annum against laborers, up to £10 against persons in better circumstances. In Scotland, as in England, the father of a bastard child is not deemed related, in point of law, to such child; and if he desires to provide for such child, it must be done by deed or will, in which the child is identified and not merely described under the general designation of ‘child,’ which he is not.