Child Rights and Remedies

By Robert C. Fellmeth | Go to book overview

CHAPTER TWELVE
Child Rights to Property,
Contract and Tort Recovery

A. CHILD RIGHTS TO PROPERTY

1. Common Law Property Rights

Children have the right to “own” both personal and real property.1 However, at common law they are considered incapable of managing it. Hence, parental authority generally includes the management of property owned by a child. Children can alienate and transmit title to properly, but they are not permitted at common law to make irrevocable conveyances of realty without express judicial authority. Usually such a sale is approved for the maintenance or education of a minor.2

Parents do retain presumed title to property that they furnish to their children for support and education, such as clothing and toys. And parents have the right to earnings from their unemancipated children as concomitant to their obligation to support them. That right may take the form of child labor for a parent, or allowing children to work for others (within the limits of child labor laws) and collecting the earnings. If a parent abandons a child, the right to his or her earnings terminates.

Where parental guidance is lacking, a court may appoint a guardian for that purpose. More often, management of a child's assets is accomplished through use of trusts and gifts pursuant to the Uniform Gifts to Minors Act. which has been enacted in varying form in all fifty states. Gifts to children are presumed accepted if to their advantage. Upon receipt, the gift may be enforceable against attempted retrieval. An adult may give up to $11,000 in gifts to a child per annum without incurring federal gift taxation.

Over the last thirty years, trusts have emerged as a common vehicle for transfering property to children, and for its maintenance until they reach majority. Named trustees are appointed by the trustor, are assigned duties by the trust instrument, have a fiduciary duty to the child beneficiary and are liable for its breach.


2 Property Rights of Children of Unwed Parents

Much of the policy debate over child property rights over the past halfcentury has involved the rights of a particular subset of children: those born to unwed parents. What claim do such children have to property deriving from the biological parents (who owe them a duty of support)? How are such children to be treated in terms of government subsidies and payment due the children of married couples? Are such children a “suspect classification” entitled to “strict scrutiny” protection9 To mid-level “heightened scrutiny”?

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