Worried about your teenager? Who are they hanging out with? What are they doing after school? Is my child being bullied? Is my child into drugs? These are all valid – and common – concerns of a parent. You probably bought your teen a phone – a cute iPhone or a techie android smartphone.
You can put a lot of fears to rest if you know what is going on with your child’s phone. You also can intervene, if necessary, to protect your child.
What are the legal implications of spying on your child’s phone? Can you be sued by your child?
Parent-Child Immunity: Historically, the Doctrine of Parental Immunity barred a child from bringing a claim against her parents. The parental immunity doctrine had its genesis in the United States in Hewellette v. George, 68 Miss. 703, 9 So. 885 (1891), in which a minor daughter was precluded from suing her deceased mother’s estate for damages resulting from mental suffering and injury to her character incurred during her confinement in an asylum for 11 days caused by her mother. The court gave this reason for its holding:
“ ‘The peace of society, and of the families composing society, and a sound public policy, designed to subserve the repose of families and the best interests of society, forbid to the minor child a right to appear in court in the assertion of a claim to civil redress for personal injuries suffered at the hands of the parent. The state, through its criminal laws, will give the minor child protection from parental violence and wrongdoing, and this is all the child can be heard to demand.’
The rule, as set forth in Hewellette is as follows: “So long as the parent is under obligation to care for, guide, and control, and the child is under reciprocal obligation to aid and comfort and obey, no such action as this can be maintained.”
All 50 states, legislatively or judicially (by a decision of the state’s supreme court), adopted the doctrine. California is a state that adopted the immunity judicially (Trudell v. Leatherby (1931) 212 Cal. 678 [300 P. 7] an unemancipated minor child may not maintain an action against his parent for negligence because an action by a child against his parent would “bring discord into the family and disrupt the peace and harmony of the household”).
The End of Parent-Child Immunity: Almost all states have now abandoned absolute parent-child immunity, particularly with respect to intentional torts against the child (i.e., child molestation and abuse). Many states have abrogated the doctrine for negligence claims where there is insurance coverage for the parent’s negligence, and allowing the child’s lawsuit against the parent would not disrupt family harmony, because the claim really lies against the insurance carrier for the parent (i.e., allowing automobile negligence lawsuits – now commonly excluded by insurance policies).
- The Goller Rule – immunizing ordinary parental negligence
Recognizing the continuing need to protect parental authority and family harmony, some jurisdictions have attempted to limit immunity to negligent conduct arising out of an “exercise of parental authority . . . [or] an exercise of ordinary parental discretion with respect to the provision of food, clothing, housing, medical and dental services, and other care.” Goller v. White, 20 Wis. 2d 402, 122 N.W.2d 193 (1963).
The reasoning is that parents have a right to raise their children according to their own beliefs, without undue interference from the courts. Parents should be free to determine the physical, moral, emotional, and intellectual growth of their own children. Every parent has a unique philosophy of rearing of children, and matters of parental supervision invoke these philosophical considerations. Neither a court nor a jury can evaluate such highly subjective factors without supplanting the parent’s individual philosophy.
The Wisconsin rule from Goller, which is followed by a majority of states, is as follows: The parental-immunity rule is abrogated except in these two situations: (1) where the alleged negligent act involves an exercise of parental authority over the child; and (2) where the alleged negligent act involves an exercise of ordinary parental discretion with respect to the provision of food, clothing, housing, medical and dental services, and other care.
- The Gibson Rule – The Reasonable Parent Standard
California has led the way in completely abrogating the parental immunity doctrine and many states are moving towards the California “reasonable parent” rule adopted in Gibson v. Gibson (1971) 3 Cal.3d 914. Decided after Goller, Gibson recognized that “a parent may exercise certain authority over a minor child which would be tortious if directed toward someone else. For example, a parent may spank a child who has misbehaved without being liable for battery, or he may temporarily order the child to stay in his room as punishment, yet not be held responsible for false imprisonment.”
Gibson adopted the following rule, now known as the “reasonable parent” standard: “Since the law imposes on the parent a duty to rear and discipline his child and confers the right to prescribe a course of reasonable conduct for its development, the parent has a wide discretion in the performance of his parental functions, but that discretion does not include the right willfully to inflict personal injuries beyond the limits of reasonable parental discipline. . . [A]lthough a parent has the prerogative and the duty to exercise authority over his minor child, this prerogative must be exercised within reasonable limits. The standard to be applied is the traditional one of reasonableness, but viewed in light of the parental role. Thus, we think the proper test of a parent’s conduct is this: what would an ordinarily reasonable and prudent parent have done in similar circumstances?”
Statutory Monitoring Required : Oregon’s Child Supervision Law
One could also make the case that communications and location monitoring may sometimes be necessary for parents with a child who has a history of criminal misbehavior. For instance, Oregon imposes criminal penalties (only a $100 fine) against parents whose children violate tobacco, alcohol, truancy and curfew laws. In order to escape liability, the parents must either show they reported the conduct to police, or that they took reasonable steps to control the child. (Oregon Revised Statutes, Sect. 133.07 (Failure to Supervise a Child)).
Parental Liability for Harassing a Child: Don’t Hack Your Child’s Facebook Account
While there are no reported cases of parents being sued by their children for invasion of privacy for spying on their telephone and internet activity, there is a recent case where a parent took her supervisory activities over the top.
The 17-year old son of an Arkansas woman left his Facebook page open on his computer. His mom read his entries on the page and was disturbed to find he was posting accounts of domestic abuse by his mother. She changed his password, and, over the course of several weeks, began posting numerous false and defamatory statements which, to the child’s facebook friends, appeared to be posted by the 17-year old himself. She also sent communications by sms and through facebook to her son which were vulgar.
Her son made a police complaint. The mother was arrested, tried, and convicted of harassment. She was sentenced to 1 year probation, ordered to pay a $435 fine, and attend anger management classes. (Denise New case)
A Parent’s Takeaway: Monitoring your child’s phone and internet activity is within your right as a parent, and it may be your duty. While supervision and monitoring are perfectly within the law, harmful intentional conduct which goes beyond parenting, exposes parents to both civil and criminal liability. Moreover, public disclosure of personal communications can, in some cases, lead to civil or criminal liability for defamation, harassment or invasion of privacy.