The Post-Divorce-Parenting Glossary

• What is the Parens Patriae Doctrine?
• Is Parens Patriae permanent?
• Does Parens Patriae provide the government custody rights over a child?
• What is the history of the Parens Patriae Doctrine?
• How has Parens Patriae evolved in the United States?
• How is the Parens Patriae Doctrine used today?
• Are there any restrictions to limit Parens Patriae being exercised by the state?

What is the Parens Patriae Doctrine?

Parens Patriae is a doctrine that permits the state, power and authority to protect individuals who are deemed legally unable to act on their own behalf. When the government exercises Parens Patriae they assume the role of guardian acting in behalf of another, such as child or mentally disabled individual. In Latin, the term Parens Patriae means father of the country. Parens patriae is often used in child custody cases involving neglect or child abuse. It is used to clarify the state's responsibility to defend small children who do not receive adequate care from their parents.

Is Parens Patriae permanent?

Parens Patriae can be temporary or permanent, depending on the situation. The use of foster homes and other shelters is an example of how family courts use the parens patriae doctrine. When a child is removed from his or her home, in accordance with the parens patriae doctrine, the government must act in accordance with the best interest of the child.

Does Parens Patriae provide the government custody rights over a child?

Yes. Within the Parens Patriae Doctrine, the government is granted both legal custody and physical custody of the child in question. Therefore, the person or persons appointed by the government to assume the role of guardian is allowed to make significant decisions on behalf of the child or adult.

Significant decisions relating to the individual's health, school, religion, day-to-day care, and overall well-being as typically protected by legal custody are afforded to the guardian under Parens Patriae. Further, the government is responsible for where the person resides as is typically protected under physical custody. This means that the government assumes complete responsibility over the child or adult, and has full custody, although they delegate the task of handling the upbringing of the children to others, such as foster parents. 

The government is allowed by law to make any decision on behalf of the children it is responsible for under Parens Patriae.  Furthermore, the government can sue parents or offenders on behalf of citizens who have been mistreated or abandoned.

What is the history of the Parens Patriae Doctrine?

The Parens Patriae Doctrine was initially established within English common law. The concept was first introduced by the kings' bench in 1608. It was intended for parents that were seen as without moral mind or non compos mentis adults (not in control of their mind or "insane", today referred to as "not legally competent") and not capable of caring for their children. In his role as father of the country, the King exercised the functions authorized in the Parens Patriae Doctrine.

The doctrine of Parens Patriae gradually evolved to protect children during the seventeenth and eighteenth centuries. Despite that the Parens Patriae Doctrine is very old it is often used today in family court cases. It has since transitioned from granting the king custodial rights, to family courts being given the authority to protect children and incapacitated adults.

When the Parens Patriae Doctrine was developed it resulted in juveniles having no legal rights or standing before any court. Essentially if a juvenile was accused of committing a crime their fate was decided by the chancellor, who acted on behalf of the king's agents. This left kids and parents without any legal rights. Parents ultimately lost their parental rights which would later complicate future cases in the United States.

How has Parens Patriae evolved in the United States?

The doctrine of Parens Patriae has extended or been translated in the United States to grant the attorney general of a state the authority to initiate litigation on behalf of the state residents for federal antitrust violations; however, there is a inconsistency from state-to-state when Parens Patriae is used. Its primary purpose is to protect the well-being of individuals who are mentally and physically limited due to age or disability and therefore are unable to adequately care for themselves.

In the United States, the Parens Patriae doctrine has had its most significant function in caring for and protecting children, mentally ill persons, and other individuals who have been deemed legally incompetent to handle their affairs. Ultimately the state has the has highest authority to act as guardian of all children residing within its jurisdictions. The state courts have the inherent authority to intervene to protect the best interests of children when their well-being is seen as at risk by harmful acts such as neglect or abuse. The extent of this authority is defined within legislation around child protection, which may differ from one state to the next.

How is the Parens Patriae Doctrine used today?

In the majority of jurisdictions the principle of this doctrine is woven into the primary focus or obligation of a court as to protect the best interest of a person or persons, often a child. As discussed above the parens patriae doctrine has been modified over time to meet the needs of modern states to protect their residents.

Today juveniles are provided an opportunity to rehabilitate through the doctrine. Compared to the unforgiving approach of parens patriae doctrine in the 17th century, today a series of tiered efforts are employed to intervene in criminal offenses, which include: verbal warning, community service, or fines, confinement. Confinement is used as a last resort when juveniles despite multiple attempts to intervene and help them redirect their behavior continue a pattern of criminal activity. The majority of juvenile cases are also tried on a juvenile versus adult level. Further, another difference today compared to the past is that juveniles also have the right to appeal.

Are there any restrictions to limit Parens Patriae being exercised by the state?

Yes. The Parens Patriae Doctrine is limited by the Parental Liberty Doctrine in the United States. This constitutional doctrine is intended to prevent abuse of individual civil rights due to unjustified governmental intervention with minors.

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