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. Legiti- mate children are the children of two parents who are recognised 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.' In Scotland, on the other hand, a child born of parents who were not married at the time of the birth is made legitimate by their subsequent intermarriage. For a statement of the law relating to illegitimate children, see the articles BASTARD, AFFILIATION, LEGITIMATION, and see also FAMILY, INFANT.
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 the Poor Law was created by statute in the reign of Elizabeth: by that law parents and children are compellable to a certain small extent, but only when they have 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, clothed, and saved from starvation by a stranger, it is questionable whether such a stranger can 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. For example, if the child order 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. If a child be 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 misdemeanour; but this offence does not result from the relationship of parent and child; it may arise between an adult and child in any circumstances, as where a child is an apprentice or servant. 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 be 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 after the parent's death the executors or other representatives of the parent, though in possession of funds, are also 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.
A father has the right to the custody of his 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 so far controls the parental right that, if the father is shown to act with cruelty, or to be guilty of immorality, a guardian will be appointed. The court 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. 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. The law lays upon fathers the duty of providing their children with an elementary education in reading, writing, and arithmetic; and a father has the right, which the court will not interfere with except on special grounds, to have his children educated in his own religious faith.
Scotland.—The law of parent and child in Scotland differs in some respects from the law of England and Ireland. In Scotland there is a legal obligation on parents and children 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, although this does not mean merely relief of the poor-law authorities, but is held to vary according to the social position of the party. 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 dies 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. 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 (see LEGITIM). 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. His right, however, is not absolute, but subject to the equitable jurisdiction of the Court of Session, which makes such orders regarding custody as are dictated by a regard for the health, interests, and moral education of the child. In actions for separation or divorce this court has power to make such orders as are just and proper regarding the custody of the children of the spouses.
By the Guardianship of Infants Act, 1886, increased rights were given to the mothers of lawful children both in England and Scotland. The general effect of the enactment is to place the mother of children whose father is dead in a similar position to that which the father would have occupied had he been alive in regard to the guardianship.
United States.—The American law closely follows that of England on this head, save in regard to the age (usually eighteen) at which women cease to be infants. See INFANT, AGE.