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CHILDREN IN Marriage
Decision to Have Children
Who makes the decision to become a parent?
The Supreme Court in Roe v. Wade and other cases has declared that the decision of
whether or not to have a child is a very personal one and that the decision is protected by the
right of privacy under the United States Constitution. This means that individuals who wish to
have a child cannot be barred from doing so (unless perhaps they are incarcerated). Individuals
who do not wish to have a child have a legal right to obtain and use contraceptives.
What if one spouse wants children and the other does not?
This is a significant emotional issue that, of course, can be very difficult. If one member of the
married couple wants a child and the other does not, that could be a basis for a divorce. A
disagreement on such a fundamental issue could be an "irreconcilable difference" under the nofault
divorce laws of most states. In states that have grounds for divorce based on someone
being at fault, a disagreement on the question of whether to have children could be viewed as
"mental cruelty," and thus a basis for ending the marriage.
Beyond divorce, remedies are limited. The courts cannot force a pregnant woman to stop
the pregnancy, nor does the law require a wife to have her husband's permission for an
abortion.
Abortion
What is the current status of abortion law?
As of the year 2000, women still have a right to an abortion. In the 1992, the U.S. Supreme
Court in the case of Planned Parenthood v. Casey reaffirmed its 1973 decision in Roe v. Wade
that women have a constitutional right to seek an abortion during the early stages of pregnancy.
States, however, do have a right to regulate how abortions are performed and states may ban
abortions after the fetus is viable (able to live outside the womb) unless the mother's life or
health is endangered. The scope of regulation and funding of abortions by the government varies
from state to state. In Casey, the Supreme Court held it was permissible for states to impose a
24-hour waiting period on obtaining abortions and to require a minor to have consent of one
parent or a judge for an abortion.
Childbirth
Are there any rules prohibiting parents from having their children born at home?
No, at-home births generally are an option for parents. The mother should have good
prenatal care, and she should make sure the health care provider believes the delivery will not
pose significant risks to the mother or child. If the delivery is risky for the mother or child, it is
much better to use a hospital. Some states allow nurse-midwives to deliver children at the
parents' home or at a birthing center. Other states allow nurse-midwives to practice only at
hospitals or under the direct supervision of a physician.
If the delivery is at a hospital, may the father or a sibling be present?
At most hospitals, the father may be present at birth. Hospitals often prefer that the father
and mother have gone through some training before the delivery. Parents should check with their
hospitals about other rules and about whether siblings would be allowed in the delivery room.
Rights and Responsibilities of Parents
What are the rights of parents?
Parents have a right to direct the care, control, and upbringing of their children. This gives
them the power to make various decisions, including where to live, what school to attend, what
religion to follow, and what medical treatment to obtain.
Normally the state may not interfere in these decisions. Only in life-threatening or extreme
situations will the courts step in to overrule parents. For example, when a child might die without
the medical care that the parents refuse to provide, a judge may make the child a ward of the
court and order that the care be provided. Parents have been prosecuted for withholding
medical treatment from seriously ill children. This is true even in situations where parents act out
of religious belief.
There may be certain medical procedures, however, that the law allows "mature minors"
to decide upon for themselves, even if their parents disagree. For example, parents have no
absolute veto power over a minor's decision to use contraceptives or to obtain an abortion.
Parents also have the legal authority to control their children's behavior and social lives.
Children have a duty to obey their parents' reasonable rules and commands. Parents may
discipline or punish their children appropriately. They may not, however, use cruel methods or
excessive force; that constitutes child abuse.
What are the legal rights of children?
Children have a unique status under the law. This chapter cannot explain this special status
fully. However, it can point out a few of the major differences between the rights of adults and
children.
Most important, children have a right to be supported by their parents. At minimum, this
means food, shelter, clothing, medical care and education.
The law defines children as unmarried persons under the age of majority--usually
eighteen--who have not left home to support themselves. The law protects children from abuse
and neglect. It also entitles them to the protection of the state. Children may be removed from
their home if it is necessary to ensure them a safe, supportive environment. This removal may be
temporary or permanent.
The law allows children to sue. However, in most instances an adult legal representative
must begin the suit.
Children accused of committing crimes are subject to the juvenile courts of their state, not
the regular criminal justice system. (In some states, children accused of serious crimes who are
above a certain age—such as thirteen—may be tried in court as adults.) Juvenile courts entitle
children to only some of the due process safeguards that adults receive. In return, these courts
have more freedom to deal with juveniles in an effort to rehabilitate them.
How long do parents' legal obligations to their children continue?
Parents are legally responsible for their children until they reach the age of majority (usually
eighteen), marry, or leave home to support themselves. In some states, divorced parents may be
obliged to pay for a child's college education or trade school. In addition, a parent's duty to
support a disabled child might continue for the child's entire life.
WHO CONTROLS THE MONEY CHILDREN EARN OR INHERIT?
Generally, parents do not have unlimited, direct control over their children's money. If children
earn or inherit money, that money must be used for the children=s benefit. Some states require
the appointment of a guardian under court supervision if a child has substantial funds. Unless a
court appoints someone else, parents are the guardians of their children's money. The parents
are legally responsible for managing the money properly and using it for their children's needs.
Are parents financially responsible for the acts of their children?
The law on this varies from state to state. Some states make parents financially responsible
for damage caused by their children, but the states may place limits on the amount of liability. In
Illinois, for example, parents or guardians may be required to pay no more than $2,500 for the
"willful or malicious acts" of minor children who harm another person or property.
Generally, if a child has an auto accident while driving a parent's car, the parent's auto
insurance policy will cover the loss to the same extent it would if the parent had been driving the
car (although parents usually have to pay higher insurance premiums to cover young drivers).
THE DUTIES OF ADULT CHILDREN TOWARD THEIR PARENTS
Adult children normally have no responsibilities toward their parents. In return, their parents
have no duties toward them. However, there are exceptions. In some states, children must
support parents who otherwise would be on welfare. The children can avoid paying support if
they can show that the parents did not care for them when they were underage. In some states,
children may have to contribute to the support of parents in a state hospital or mental institution.
However, the children's ability to pay--not the actual costs of the care--usually determines how
much they must pay.
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