Center for Gender & Sexuality Law
Center for Contract and Economic Organization
Traditionally, the law has deferred to the rights of biological parents in regulating the parent-child relationship. More recently, as the emphasis of legal regulation has shifted to protecting children's interests, critics have targeted the traditional focus on parents' rights as impeding the goal of promoting children's welfare. Some contemporary scholars argue instead for a "child-centered perspective,"' in contrast to the current regime under which biological parents continue to have important legal interests in their relationship with their children. The underlying assumption of this claim is that the rights of parents and the interests of children often are conflicting, and that greater recognition of one interest means diminished importance to the other.
One way of thinking about a legal regime that seeks to harmonize this conflict is to imagine that the parent's legal relationship to the child is shaped by fiduciary responsibilities toward the child rather than by inherent rights derived from status.2 Fiduciaries in law are agents who occupy a position of special confidence, superiority, or influence, and thus are subject to strict and non-negotiable duties of loyalty and reasonable diligence in acting on behalf of their principals. Characterizing parents as fiduciaries suggests that the parent-child relationship shares important features with other legal relationships that have been similarly defined, such as trustees and trust beneficiaries, corporate directors and shareholders, executors and legatees, and guardians and wards. Basic structural similarities are apparent. There are information asymmetries in this family relationship that are analogous to those of other fiduciary relationships. Moreover, satisfactory performance by parents, like that of other fiduciaries, requires considerable discretion, and children, like other principals, are not in a position to direct or control that performance. Here, as in other contexts, the challenge for legal regulation is to encourage the parent to act so as to serve the interests of the child rather than her own conflicting interests, and yet to do so in a context in which monitoring parental behavior is difficult.
Elizabeth S. Scott & Robert E. Scott,
Parents as Fiduciaries,
Va. L. Rev.
Available at: https://scholarship.law.columbia.edu/faculty_scholarship/329