Page:The New International Encyclopædia 1st ed. v. 15.djvu/401

PARENT AND CHILD. to name the diiUl ami are entitled to liis custody. As such custodians, they or persons in loco pa- rcnlis may reasonably chastise the child, but for excessive ijunislinient, amounting to willful or malicious cruelty, the parent may be civilly liable in an action of tort (although in some States this liability has been denied on grounds of policy), or criminally liable for assault, or homicide in case death ensues. At commcm law the jjarcnts could not be deprived of the custody and control of the child by third parties, but by modern legislation oHicers having supervision over public charities, and in some Slates private charitable corj)orations, are authorized to acquire custody of the child, if suojected to cruel or improper treatment by the parents, by means of a properly instituted legal proceeding. At common law, as between the father and mother, in case they w'ere living apart or divorced, the father was deemed to be entitled to the custody of the child, but by the Statute 30 and 37 Vict., c. 12, the mother was entitled to apply to the Court of Chancery for custody- of the child, which the court in its discretion might award to her if it appeared to be for the best interests of the child. It is now the practice of courts generally in the United States, even in the absence of statute, to award the custody of the child to the parent best quali- fied and able to care for and educate the child. In case of divorce or judicial separation of the parents, even in the absence of statute, courts having jurisdiction over divorce generally have jurisdiction to award custody of the children of the marriage. The right to custody may also be determined in a proper case by habeas corpus (q.v. ), or in some States upon applica- tion to courts of probate or similar courts hav- ing statutory jurisdiction over the subject matter. If the parents separate by agreement, no stipu- lation entere<l into by them as to the custody of the child will be enforced by the courts if preju- dicial to the child.

A parent or one in loco ptirrntis is entitled to the services of his child until he comes of age, and if the services are rendered to others, the parent is legally entitled to recover the reason- able value of the child's services unless payment for the services is made to the child with the consent of the parent. As between the father and the mother, the father is entitled to the child's services, but upon the death of the father or ipon custody of the child being awarded to the mother, she becomes entitled to the child's serv- ices. The right of the parent to take the child's earnings may be waived by his voluntary eman- cipation of tile child. See Kma.xcip.vtiox. When a child having regularly rendered serv- ices to his parents continues to do so after com- ing of age, there is a presumption of fact that the services are rendered as a gift, and he will not be allowed to recover for the services thus rendered in the absence of some agreement to that elTect.

Parents have no interest in or control over the property of their children, such control being exercised by guardians ajipointed by courts of chancery or probate, having jurisdiction over the property of infants. (See Guardian and Waku. ) Wearing appand and personal effects, however, ])urchased by the ])arent for an infant child remain the property of the parent and svib- ject to his control. Clioses in action belonging to the infant might be enforced at common law b- an action brought in the name of the infant by the [larent as ne.xt friend {prochein iinii) of the infant; and now by statute generally such actions are prosecuted in the name of the infant by a guardian ud litem appointed by the court, who may be but is not necessarily a jiarcnt of the litigant.

As the parent is legally entitled to the serv- ices of the child, any wrongful act of third per- sons interfering with this right is a tort, for which such third ])ersons nuist respond in dam- ages to the parent. Thus a parent may recover all damages sutTercd by him by reason of loss of services of his cliild because of personal in- juries inflicted upon the child by the negligent conduct of third persons. And in most jurisdic- tions he may recover also for the medical atten- dance supplied to the child, although, as will appear, the parent was not bound by the common law to supply the child with necessaries. Upon similar principles the parent may recover damages for the seduction of an infant daughter. Indeed, by the early law, as well as in some States at the present time, the parent's right to recover for the seduction was based solely upon his right to recover for the loss of his daughter's services. The courts of some States, however, have departed from this rule and permit a re- covery, even though the parent has emancipated his daughter and is, therefore, not entitled to her services. See Seduction.

As regards the maintenance of the child, it is somewhat singular that according to the common law the parent is under no civil legal duty what- ever to support the child. This defect in the law was remedied somewhat when what is known as the 'Poor Law' was enacted b_y Parliament in the reign of Elizabeth by which some legal duty was imposed upon parents and children to sup- port each other when financially able to do so, or rather to assist the parish authorities in con- tributing to their support.

This act authorized the parish authorities to enforce the law by ap])io]iriate proceedings, and even authorized them to i)rocure a judicial seiz- ure of the parents' property for the use of their children in case of abandonment of the children by the parents. But it <lid not create obligations such that one who supplies a destitute child with food and clothing has any legal claim against the parent. Similar statutes have been enacted in most of the United States, and in a few States the courts have indicated that the duty of a parent to maintain his child thus created may also be enforced by third jiersons by an action in the nature of quasi contract.

While the parent is not civilly liable to main- tain his child, he is criminally responsible if, having undertaken to care for his child, he neglects it and, by exposure or failure to provide it with food or clothing, causes the child's injury or death. Parents have been held guilty of man- slaughter and even murder when death resulted from negligent or improper care of their children. The Englisli courts have held that a parent who in good faith neglects to provide medical attend- ance for his child because he did not believe in the use of medicine was not criminally responsi- ble for his neglect. The rule of this decision was promptly corrected by an act of Parliament, and it is probably generally the law in the CTnited States that a jiarent guilty of gross neglect in