Common Law Duty to Support
The duty to support their children has long been a legal obligation for parents. However, the purpose of early child support laws in England was to prevent children from becoming wards of the parish, rather than to enforce parental duties. In the United States, nineteenth-century courts and legislatures established the obligation to pay child support in connection with granting a parent visitation rights. By the early twentieth century, most states had enacted child support laws, which gave courts the discretionary power to obligate fathers to pay “just” or “reasonable” support for their offspring. Modern child support laws recognize that both mothers and fathers have a duty to support their children, and either parent may be ordered to pay child support.
Child Labor Laws
Throughout history, children were considered economic assets of their parents, and a child’s labor was an essential resource. Families were often dependent on the labor of their children for survival. It was not uncommon for children as young as five years old to work in fields and factories.
In the early half of the twentieth century, awareness of the poor working conditions of children in urban factories increased, and many advocated for government regulation of child labor. In 1904, activists formed the National Child Labor Committee to abolish the practice of employing children in the workplace, and in 1912, the U.S. Children’s Bureau, formed within the Department of Commerce and Labor, was the first national government agency focused solely on the well-being of children.
The most sweeping federal law enacted to regulate child labor was the Fair Labor Standards Act (FLSA), passed in 1938 as part of the New Deal legislation. The child labor laws in the FLSA set forth legal requirements to maintain health and safety in the workplace for minors.
Child Welfare Laws
Common law in England recognized that responsibility for the care and protection of children lay with their parents “as guardians by the law of nature,” as well as with the monarchy as parens patriae—the parent of the country. Fathers had virtually unlimited rights to discipline their children, as the government was reluctant to get involved in what they deemed private family matters. The first law passed to prevent cruelty towards children, commonly known as the Children’s Charter, was not passed in England until 1889.
In the United States, for many years laws enacted to prevent child abuse varied state by state, and the legal framework to protect children was often unenforceable and needlessly complex. In order to address growing concern for increasingly reported incidents of child abuse, Congress passed the Child Abuse Prevention and Treatment Act (CAPTA) in 1974, creating the nation’s first mandatory child-abuse and neglect reporting laws. Although amended several times, CAPTA remains law and provides federal funding for the prevention, identification, and treatment of child abuse and neglect. Most of today’s parents are well aware that every state has an agency with the power to remove an abused or neglected child from the custody of the parents in order to protect the safety and welfare of that child.
Equal Rights of Nonmarital Children
Under common law, an illegitimate child was deemed filius nullius —the child of no one. Until the 1960s, the majority of state laws defined “parent” as encompassing both the mother and father of a child born during marriage, but the definition included only the mother of a child born outside of marriage. Many states deemed unwed fathers as de facto unfit to care for their children, and often children were made wards of the state if their mother passed away or otherwise could not care for them.
In several landmark Supreme Court cases in the 1960s and 1970s, the Court recognized that children born outside of marriage were clearly “persons” under the Fourteenth Amendment, which entitled them to its full protection. Levy v. Louisiana, 391 U.S. 68 (1968); see also Stanley v. Illinois, 405 U.S. 645 (1972). Consequently, statutes have since abandoned all classifications of children as either “legitimate” or “illegitimate.” Today, children born outside of marriage have the same legal rights as children born of marriages, and parents are not required to be legally married in order to have legal rights in connection with their children.
Fundamental Right of Parents
Neither the U.S. Constitution nor the Bill of Rights explicitly refers to the rights of parents. However, throughout the twentieth century, the U.S. Supreme Court has recognized that parents have the constitutionally protected right to autonomously make child-rearing decisions.
- In Meyer v. Nebraska, the Supreme Court struck down a 1919 Nebraska law restricting foreign-language education because the rights of individuals to marry, establish a home, and bring up children are protected by the Due Process Clause. 262 U.S. 390 (1923).
- In Pierce v. Society of the Sisters, the Supreme Court recognized that a parent has the right to choose whether a child will attend private or public school. 268 U.S. 510 (1925).
- In Wisconsin v. Yoder, the Supreme Court determined that Amish children could not be placed under compulsory education past eighth grade, as parents’ fundamental right to freedom of religion outweighs the state’s interest in educating children. 406 U.S. 205 (1972). This case is often cited as a basis for parents’ right to homeschool their children.
- In Stanley v. Illinois, the Supreme Court recognized that fathers of children born outside of marriage had a fundamental right to their children and that they are guaranteed the same rights as married or divorced fathers. 405 U.S. 645 (1972).
- In Troxel v. Granville, the Supreme Court struck down a Washington statute permitting anyone to petition for child visitation as unconstitutional infringement on parents’ fundamental right to raise their children. 530 U.S. 57 (2000). Under Troxel, when considering a petition for visitation by nonparents, courts must presume parents act in the best interest of their children. However, in the wake of this decision, states have been divided over what is required to overcome the parental presumption. Some states have enacted legislation that requires a showing of “harm” to the child, while others require only “detriment” to the child. The Uniform Law Commission is currently drafting a “Non-Parental Child Custody and Visitation Act” to help resolve these differences; a final draft is expected by July 2018.
Allocation of Parental Rights and Duties
The law sets forth parents’ legal duties and rights, which are respectively protected and enforced in order to serve the best interest of the child. When parents divorce, these rights and duties are allocated between the parents, with one parent often having certain rights and duties to the complete exclusion of the other parent. Moreover, the rights and duties are not necessarily given exclusively to biological parents, as the law recognizes that grandparents, stepparents, and in some states, de facto parents, often are the primary caretakers of children and may therefore be granted the legal rights of parents.
- Right to Care, Custody, and Control
The Supreme Court has held that parents have a constitutionally protected right, derived from the Fifth and Fourteenth Amendments, to make decisions concerning their child’s companionship, care, custody, and control. Accordingly, parents have the right to autonomously raise their children, and courts must presume that they act in their children’s best interest.
- Visitation Rights
Parents’ visitation rights are inherent in parental status, and the right of a parent to visit with his or her children is recognized by statute in every state. Even in cases of abuse and drug addiction, courts will often order the parents’ visitation be supervised to protect the child from danger while also recognizing the parent’s right to visitation. Generally, courts will not restrict the visitation rights of parents unless there is a clear showing of physical or emotional danger to the child. See Santosky v. Kramer, 455 U.S. 745 (1982) (holding a parent’s right to raise his or her child could be terminated only upon “clear and convincing” evidence that the child was neglected).
- Duty of Discipline
A parent’s right to discipline his or her child has become a controversial issue in recent years as society’s attitude toward corporal punishment has evolved. However, corporal punishment is still permitted in every state either under state statute or common law. The majority of state laws permit parents to use “reasonable force” in disciplining a child; however, what is reasonable depends on the circumstances of the child and parents, and the force used. Whether a parent has excessively punished a child so that it constitutes criminal child abuse is determined on a case-by-case basis by state courts.