42 Am. Jur. 2d - Infants (2013)

AMJUR INFANTS SUM Page 1
42 Am. Jur. 2d Infants Summary
American Jurisprudence, Second Edition

Database updated November 2013
Infants
John Bourdeau, J.D. and Laura Hunter Dietz, J.D.
Correlation Table
Summary
Scope:
This article discusses the status of infancy in general and the principles relating to the capacities, disabilit-
ies, privileges, and liabilities of infants generally in connection with contracts, torts, the protection of person and
property, and actions.
Federal Aspects:Infants are the subject of various federal laws including those relating to the sexual abuse
of children in special maritime and territorial jurisdictions of the United States or in a federal prison, rights of
child victims and child witnesses, child abuse and treatment of victims, and the reporting of child abuse.
Treated Elsewhere:
Adoption of children, and rights and duties pertaining to adopted children, see Am. Jur. 2d, Adoption §§ 1
et seq.
Adverse possession, acquisition of title by or against infant by means of, see Am. Jur. 2d, Adverse Posses-
sion §§ 153, 172
Agent, capacity of infant to act as or to appoint, see Am. Jur. 2d, Agency §§ 10, 13
Agreed case, infant's participation in, see Am. Jur. 2d, Agreed Case § 11
Apprenticeship programs, see Am. Jur. 2d, Employment Relationship §§ 49, 50
Attachment and garnishment by or against infants, see Am. Jur. 2d, Attachment and Garnishment § 53
Child curfew laws, validity of, see Am. Jur. 2d, Municipal Corporations, Counties, and Other Political Sub-
divisions § 416
Child pornography, sexual exploitation of children, and sale of obscene material to children, see Am. Jur.
2d, Lewdness, Indecency, and Obscenity §§ 28 to 31
Citizenship of child by reason of birth in United States, see Am. Jur. 2d, Aliens and Citizens §§ 2217 to
2226
Competency of child witnesses, see Am. Jur. 2d, Witnesses §§ 208 to 211
Computers and the Internet: collection by website operator or online service of children's personal informa-
tion, see Am. Jur. 2d, NTS Computers and the Internet §§ 6, 7, 86; transferring obscene material to minors, see
Am. Jur. 2d, NTS Computers and the Internet § 98; sexual exploitation of children and luring children through
use of computer, see Am. Jur. 2d, NTS Computers and the Internet § 99
Crime, infant's capacity to commit, see Am. Jur. 2d, Criminal Law § 34
Curfews: as they relate to equal protection issues, see Am. Jur. 2d, Constitutional Law § 897; juvenile
curfews, see Am. Jur. 2d, Municipal Corporations, Counties, and Other Political Subdivisions § 416
Death penalty imposed on minor as cruel and unusual punishment, see Am. Jur. 2d, Criminal Law § 886
© 2013 Thomson Reuters. No Claim to Orig. US Gov. Works.

Delinquent children, see Am. Jur. 2d, Juvenile Courts and Delinquent and Dependent Children §§ 56 to 68
Dependent children, see Am. Jur. 2d, Juvenile Courts and Delinquent and Dependent Children §§ 49 to 55
Divorce and separation proceedings, custody and support of children determined by, see Am. Jur. 2d, Di-
vorce and Separation §§ 847 to 1027
Domicil of infants, see Am. Jur. 2d, Domicil §§ 37 to 46
Equitable conversion of infant's property, see Am. Jur. 2d, Equitable Conversion § 27
Gifts to infants, see Am. Jur. 2d, Gifts § 13
Guardian and ward, see Am. Jur. 2d, Guardian and Ward §§ 1 et seq.
Hazardous substances in toys, federal regulation of, see Am. Jur. 2d, Products Liability §§ 1906, 1916
Illegitimate children, generally, see Am. Jur. 2d, Illegitimate Children §§ 1 et seq.
Injury to or death of unborn child, recovery for, see Am. Jur. 2d, Prenatal Injuries, Wrongful Life, Birth, or
Conception §§ 1 et seq.
Insurance: parent as having insurable interest in life of child, and vice versa, see Am. Jur. 2d, Insurance §
985; infants as beneficiaries of insurance policies, see Am. Jur. 2d, Insurance § 1699; assignment by infant of
life insurance policy or proceeds thereof, see Am. Jur. 2d, Insurance § 795
Intoxicating liquor, sale to infants, see Am. Jur. 2d, Intoxicating Liquors §§ 220 to 225
Juvenile courts: control and treatment of delinquent, dependent, and neglected children, see Am. Jur. 2d, Ju-
venile Courts and Delinquent and Dependent Children §§ 1 to 39
Limitation period, infancy as affecting running of, see Am. Jur. 2d, Limitation of Actions §§ 224 to 228
Marriage, age restrictions on, see Am. Jur. 2d, Marriage §§ 16 to 18, 38
Military, enlistment of minors in, see Am. Jur. 2d, Military and Civil Defense §§ 55 to 57, 87
Neglected children, see Am. Jur. 2d, Juvenile Courts and Delinquent and Dependent Children §§ 49 to 55
Negligence: application of doctrine of contributory negligence to children, see Am. Jur. 2d, Negligence §§
865 to 880; effect of actor's minority on doctrine of comparative negligence, see Am. Jur. 2d, Negligence §§
1018 to 1020; imputed negligence or contributory negligence in context of family relationship, see Am. Jur. 2d,
Negligence §§ 1117 to 1119, 1147 to 1157; standard of care to which child is held in determining whether he or
she acted negligently, see Am. Jur. 2d, Negligence §§ 183, 184; standard of care to which one is held when act-
ing with regard to children, see Am. Jur. 2d, Negligence §§ 189 to 192
Parent and child, generally, see Am. Jur. 2d, Parent and Child §§ 1 et seq.
Parental Kidnapping Prevention Act, see Am. Jur. 2d, Divorce and Separation § 1125
Partition of land in which infant is interested, see Am. Jur. 2d, Partition §§ 39, 98
Powers of appointment, infant's capacity to grant, see Am. Jur. 2d, Powers of Appointment and Alienation §
83
Prisons, custody and care of infants by inmates, see Am. Jur. 2d, Penal and Correctional Institutions § 115
School's regulation, discipline, and punishment of students, see Am. Jur. 2d, Schools §§ 284 to 340
Specific performance of contracts by or against infants, see Am. Jur. 2d, Specific Performance § 197
Surety, obligation of surety who secures infant's debt or obligation, see Am. Jur. 2d, Suretyship § 94
Uniform Child Custody Jurisdiction Act, see Am. Jur. 2d, Divorce and Separation § 1124
Uniform Transfers to Minors Act, provisions creating form of guardianship that continues until minor
reaches age of 21, see Am. Jur. 2d, Guardian and Ward §§ 104, 105
Will, infant's capacity to dispose of property by, see Am. Jur. 2d, Wills § 50
Research References:
Westlaw Databases

American Law Reports (ALR)
American Jurisprudence 2d (AMJUR)
American Jurisprudence Legal Forms 2d (AMJUR-LF)
American Jurisprudence Proof of Facts (AMJUR-POF)
American Jurisprudence Pleading and Practice Forms Annotated (AMJUR-PP)
American Jurisprudence Trials (AMJUR-TRIALS)
© 2013 Thomson Reuters. 33-34B © 2013 Thomson Reuters/RIA. No Claim to Orig. U.S. Govt. Works. All
rights reserved.
AMJUR INFANTS SUM
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AMJUR INFANTS I A REF Page 1
42 Am. Jur. 2d Infants I A Refs.

Infants
I. In General
A. Definitions
Topic Summary Correlation Table
Research References
West's Key Number Digest
West's Key Number Digest, Infants 1 to 4, 12(1), 12(2)
A.L.R. Library
A.L.R. Index, Children and Minors
A.L.R. Index, Emancipation of Children
West's A.L.R. Digest, Infants 1 to 4, 12(1), 12(2)
Model Codes and Restatements
Restatement Second, Contracts § 14, Comment a
rights reserved.
AMJUR INFANTS I A REF
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AMJUR INFANTS § 1 Page 1
42 Am. Jur. 2d Infants § 1

Infants
I. In General
A. Definitions
Topic Summary Correlation Table References
§ 1. Generally
West's Key Number Digest, Infants 1
While the word "infant" in its ordinary usage signifies a child of a tender and helpless age, the words "in-
fant" and "infancy" as used in law have a technical meaning different from their meaning in common speech. In
the law, the word "infant" refers to a person who has not arrived at his or her majority as fixed by law,[1] and
the word "infancy" as used in law means minority or nonage.[2]
Observation:
Majority is the age at which the disabilities of infancy are removed, and hence, a person who has reached his or
her majority is entitled to the management of his or her own affairs and to the enjoyment of civic rights.[3]
A minor is a person under the full legal age.[4] An infant[5] or a minor[6] is a person under a legal disabil-
ity.Minority is not an actual condition which is shed like a cocoon by the child on his or her 18th birthday; a per-
son remains a minor until he or she attains the "age of majority," the law's dividing line between adults and
minors,[7] which is established by the legislature.[8] Thus, one cannot be both a minor and an adult; the terms
are mutually exclusive.[9]
According to the Restatement Second, Contracts, the common law fixed the age of 21 as the age at which
both men and women achieve full capacity to contract. In almost every state, these rules have been changed by
statute.[10]
[FN1] Beavers v. Southern Ry. Co., 212 Ala. 600, 103 So. 887 (1925).
[FN2] Ewart v. Dalby, 319 Mo. 108, 5 S.W.2d 428 (1928).
[FN3] In re Davidson's Will, 223 Minn. 268, 26 N.W.2d 223, 170 A.L.R. 215 (1947).
[FN4] Bainter v. Bainter, 590 N.E.2d 1134 (Ind. Ct. App. 1992).

[FN5] People v. Clark, 19 Misc. 3d 6, 855 N.Y.S.2d 809 (App. Term 2008), leave to appeal denied, 10
N.Y.3d 861, 860 N.Y.S.2d 487, 890 N.E.2d 250 (2008).
[FN6] Bainter v. Bainter, 590 N.E.2d 1134 (Ind. Ct. App. 1992).
[FN7] Allam v. State, 830 P.2d 435 (Alaska Ct. App. 1992).
As to termination of infancy or minority, see §§ 4 to 11.
[FN8] Zelnick v. Adams, 269 Va. 117, 606 S.E.2d 843 (2005).
[FN10] Restatement Second, Contracts § 14, Comment a.
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AMJUR INFANTS § 1
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Infants
I. In General
A. Definitions
§ 2. Effect of statute
West's Key Number Digest, Infants 2 to 4, 12(1), 12(2)
Infancy is a status which is created by the law and is subject to statutory limitations or exceptions.[1]
Minority is a status[2] rather than a fixed or vested right,[3] there being no vested property rights in the personal
privileges of infancy.[4]
Observation:
The law intends the privilege of infancy simply as a shield to protect the infant from injustice and wrong, not as
a sword to be used to the injury of others.[5]
[FN1] Jones v. Crawford, 119 Ky. 554, 27 Ky. L. Rptr. 191, 84 S.W. 568 (1905).
As to statutory protection of infants, generally, see §§ 12 to 14.
[FN5] MacGreal v. Taylor, 167 U.S. 688, 17 S. Ct. 961, 42 L. Ed. 326 (1897); A.V. v. iParadigms, Ltd.
Liability Co., 544 F. Supp. 2d 473, 232 Ed. Law Rep. 176 (E.D. Va. 2008), judgment aff'd in part, rev'd
in part on other grounds, 562 F.3d 630 (4th Cir. 2009).
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AMJUR INFANTS § 2

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Infants
I. In General
A. Definitions
§ 3. When infancy begins
By one view, biologically speaking, the life of a human being begins at the moment of conception in the
mother's womb, and as a general rule of construction in law, a legal personality is imputed to an unborn child for
all purposes which are beneficial to the infant after his or her birth.[1] Under this view, viability does not affect
the legal existence of the unborn, and it would be a most unsatisfactory criterion, since it is a relative matter, de-
pending on the health of the mother and child and many other matters in addition to the stage of development.[2]
By a contrary view, once the state of viability is reached, an unborn child becomes a legal person with a
separate existence.[3] In fact, as least with regard to the application of a state's criminal law, the general rule re-
garding the scope of the term "child" is that an embryo or fetus is not treated as the equivalent to a born child.[4]
However, a "child," under some criminal statutes, may include a fetus who is injured while in the womb and is
subsequently born and lives outside the womb.[5]
Observation:
A fetus is not a person within the context of juvenile law.[6]
[FN1] La Blue v. Specker, 358 Mich. 558, 100 N.W.2d 445 (1960).
[FN2] Wiersma v. Maple Leaf Farms, 1996 SD 16, 543 N.W.2d 787 (S.D. 1996).
[FN3] Baxter v. AHS Samaritan Hosp., LLC, 2010 WL 133796 (Ky. Ct. App. 2010).
[FN4] People v. Ward, 62 Cal. App. 4th 122, 72 Cal. Rptr. 2d 531 (4th Dist. 1998).
[FN5] People v. Lage, 232 P.3d 138 (Colo. App. 2009).
[FN6] Florence v. Town of Plainfield, 48 Conn. Supp. 440, 849 A.2d 7 (Super. Ct. 2004).

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AMJUR INFANTS I B REF Page 1
42 Am. Jur. 2d Infants I B Refs.

Infants
I. In General
B. Termination of Infancy; Attainment of Majority
Research References
West's Key Number Digest, Infants 1 to 4, 9 to 12(2), 12(10)
A.L.R. Library
West's A.L.R. Digest, Infants 1 to 4, 9 to 12(2), 12(10)
Forms
Am. Jur. Legal Forms 2d § 144:4
Am. Jur. Pleading and Practice Forms, Infants §§ 4, 6, 8, 9
Restatement Second, Contracts § 14, Comment a
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Infants
I. In General
§ 4. Generally
Forms
Am. Jur. Legal Forms 2d § 144:4 (General contractual provision—Declaration of majority)
Under the common law, infants, whether male or female, attain their majority at the age of 21 years.[1] The
age of majority may also be fixed by statute at the recognized common-law age[2] or at another age, such as 19
years.[3]
The period of incapacity arising from infancy is limited by law and cannot be enlarged or diminished by
evidence, however cogent, or by argument, however persuasive.[4]
Observation:
That an infant has neither parent nor guardian does not remove his or her disability and clothe him or her with
the power to contract generally nor does the fact that he or she has been engaged as a worker and has received
his or her wages in such employment empower him or her to make contracts which are entirely disconnected
from the work.[5]
[FN1] State v. Taylor, 153 Conn. 72, 214 A.2d 362 (1965).
[FN2] State ex rel. Fleming v. Joyce, 123 La. 637, 49 So. 221 (1909) (common-law age of 21).
[FN3] Floyd v. Abercrombie, 816 So. 2d 1051 (Ala. Civ. App. 2001).
As to termination of infancy or attainment of majority by statute, generally, see § 6.
[FN4] Prieto v. St. Alphonsus Convent of Mercy, 52 La. Ann. 631, 27 So. 153 (1900).

[FN5] Wickham v. Torley, 136 Ga. 594, 71 S.E. 881 (1911).
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Infants
I. In General
§ 5. Time and mode of emancipation
West's Key Number Digest, Infants 1, 9 to 11
Generally, the time at which a child is "emancipated" depends upon the particular facts and circumstances
of each individual case.[1]
Definition:
"Emancipation" is a legal term of art that relates to the cessation of rights and duties between parent and child.[2
] In short, emancipation generally refers to the freeing of a child from parental control.[3]
Nevertheless, at a minimum, absent some clear exception to the contrary, a person reaches the age of major-
ity, and is considered emancipated by an act of law, when that person reaches the age of 21.[4]
An infant may be emancipated by the express consent of the parent, or emancipation may be implied from
circumstances,[5] such as the infant's marriage,[6] or by his or her enlistment in the military service.[7]
Observation:
While parental emancipation or emancipation by marriage or by enlistment affects the parent's rights and obliga-
tions to the infant, such emancipation does not otherwise remove the incapacity of his or her infancy or affect
the avoidability of his or her contracts; thus, it has been said that emancipation does not remove or affect a
minor's incapacity to subject himself or herself to contractual liability for things which are not necessaries[8] or
that emancipation does not in and of itself operate to make the infant sui juris (not under a legal disability).[9]
[FN1] Howard v. Howard, 80 Ohio App. 3d 832, 610 N.E.2d 1152 (12th Dist. Clermont County 1992).
[FN2] Eccleston v. Bankosky, 438 Mass. 428, 780 N.E.2d 1266 (2003).
[FN3] Risser v. Risser, 173 Ohio App. 3d 430, 2007-Ohio-4936, 878 N.E.2d 1073 (3d Dist. Hardin

County 2007), appeal not allowed, 117 Ohio St. 3d 1406, 2008-Ohio-565, 881 N.E.2d 274 (2008).
[FN4] Marino by Marino v. Marino, 411 Pa. Super. 424, 601 A.2d 1240, 72 Ed. Law Rep. 851 (1992).
[FN5] In re Kerri H., 193 Misc. 2d 238, 748 N.Y.S.2d 236 (Fam. Ct. 2002).
[FN6] State Dept. of Human Resources v. Lott, 16 So. 3d 104 (Ala. Civ. App. 2009).
[FN7] Am. Jur. 2d, Parent and Child § 83.
[FN8] Shellabarger v. Jacobs, 316 Ill. App. 191, 45 N.E.2d 184 (3d Dist. 1942).
[FN9] Merrick v. Stephens, 337 S.W.2d 713 (Mo. Ct. App. 1960).
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Infants
I. In General
§ 6. By statute
West's Key Number Digest, Infants 4, 12(1), 12(2)
Minority is a legal status established by the legislature.[1] Thus, in the absence of an express constitutional
inhibition,[2] the legislature has the power to fix or change the age at which persons reach majority[3] or at
which infants are deemed competent to perform certain acts or duties.[4]
There is no legal requirement that the same age of majority apply to all activities and circumstances, and
statutes setting different ages at which a person may engage in an activity or be treated as an adult are within the
province of the legislature. Thus, a statute may set different ages of majority for different types of acts.[5] When
there are multiple statutes setting different ages of majority, the statutes must be construed to determine which
applies to a particular act. For example, a statute providing that persons of the age of 18 years are of the age of
majority for all purposes except for the purchase of alcoholic beverages and for purposes of the care and treat-
ment of children with disabilities, for which 21 years is the age of majority, applies only when other specific
statutes concerning the rights, privileges, or status of persons do not designate age in terms of a precise number
of years.[6]
Caution:
States may not fix different ages for attaining majority for males and females; such a distinction cannot survive
constitutional scrutiny.[7]
When the state constitution provides that persons over the age of 21 years must not be treated as minors, this
provision prohibits action by the legislature beyond the age limitation imposed; a statute fixing the age of 18
years as the age of majority is not affected by the constitutional provision because it is within the limitation of
21 years.[8]
A statute may empower the courts to remove the general disabilities of minors on a petition filed for that
purpose.[9] Nevertheless, courts may be statutorily required to inquire whether specific provisions of some stat-
utes override the statutory presumptive age of full legal capacity.[10]

[FN2] Valley Nat. Bank of Phoenix v. Glover, 62 Ariz. 538, 159 P.2d 292 (1945).
[FN3] Jacobson v. Lenhart, 30 Ill. 2d 225, 195 N.E.2d 638 (1964).
[FN4] Morrissey v. Perry, 137 U.S. 157, 11 S. Ct. 57, 34 L. Ed. 644 (1890).
For the legislative power to relieve infants of their disability for the purpose of making contracts, see §
47.
[FN5] Allam v. State, 830 P.2d 435 (Alaska Ct. App. 1992).
[FN6] Pyles v. Raisor, 60 F.3d 1211, 1995 FED App. 0228P (6th Cir. 1995) (applying Kentucky law).
[FN7] Stanton v. Stanton, 421 U.S. 7, 95 S. Ct. 1373, 43 L. Ed. 2d 688 (1975).
[FN8] Rafus v. Daley, 103 Vt. 426, 154 A. 695 (1931).
[FN9] § 8.
[FN10] Eccleston v. Bankosky, 438 Mass. 428, 780 N.E.2d 1266 (2003).
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Infants
I. In General
§ 7. By statute—Retroactive or retrospective effect of change
West's Key Number Digest, Infants 4, 12(10)
A.L.R. Library
Statutory change of age of majority as affecting pre-existing status or rights, 75 A.L.R.3d 228
A statutory change of the age of majority does not affect the preexisting rights of a person.[1]
Observation:
To hold that such a statute is retroactive in its operation would render it unconstitutional.[2]
Similarly, a statute extending the age of minority does not operate retrospectively to affect the rights and
obligations of a person who attained the age of majority prior to the extension[3] although there is contrary au-
thority.[4]
When the issue relates to a legatee's rights under a will, the testator's intent will be given effect. Thus, when
a testamentary trust was created for the benefit of the testator's daughter during her minority, to end upon her
reaching majority, the daughter did not reach her majority until she attained the age of 21 years under the statute
prevailing at the time of the entry of the final decree notwithstanding that the age of majority of females at the
time of the testator's death was 18 years.[5]
[FN1] Springstun v. Springstun, 131 Wash. 109, 229 P. 14, 40 A.L.R. 595 (1924).
[FN2] Nahorski v. St. Louis Electric Terminal Ry. Co., 310 Mo. 227, 274 S.W. 1025 (1925).
[FN3] Vlasak v. Vlasak, 204 Minn. 331, 283 N.W. 489 (1939).
[FN4] Coleman v. Coleman, 51 Ohio App. 221, 4 Ohio Op. 172, 19 Ohio L. Abs. 661, 200 N.E. 197
(1st Dist. Hamilton County 1935).

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AMJUR INFANTS § 7
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Infants
I. In General
§ 8. Removal of disability by courts
Forms
Am. Jur. Pleading and Practice Forms, Infants § 4 (Petition or application—Of infant 18 years of age or
less—For removal of disabilities and release of funds for medical and educational purposes)
Am. Jur. Pleading and Practice Forms, Infants § 6 (Order—Removing infant's disabilities)
Am. Jur. Pleading and Practice Forms, Infants § 8 (Order—Removing infant's disabilities—Petition sworn
to by parent who waived service and made appearance)
Am. Jur. Pleading and Practice Forms, Infants § 9 (Order—Removing infant's disabilities—Parent de-
ceased)
In some jurisdictions, statutes empower the courts to remove the disabilities of minors on a petition filed for
that purpose.[1] A court can confer majority rights on a minor under the authority of a statute even when the
minor is under guardianship under the jurisdiction of another state court.[2]
Caution:
A minor is not entitled to the removal of his or her disabilities under such a statute if he or she is not capable of
attending to his or her affairs.[3]
A decree removing the disabilities of an infant is open to collateral attack only when it does not show juris-
dictional facts.[4]
[FN1] Boykin v. Collins, 140 Ala. 407, 37 So. 248 (1904).
[FN2] Hardesty v. Gordon, 1941 OK 334, 189 Okla. 677, 119 P.2d 70 (1941).

[FN3] Doles v. Hilton, 48 Ark. 305, 3 S.W. 193 (1887).
[FN4] Gilmore v. Union Sawmill Co., 178 Ark. 297, 10 S.W.2d 517 (1928).
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AMJUR INFANTS § 8
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Infants
I. In General
§ 9. Removal of disability by courts—Effect of decree
If a decree partially removes the disabilities of a minor, he or she has no capacity to act beyond the scope of
the decree.[1] Under the authority of such a statute, the district courts of the state have the power to confer ma-
jority rights on minor members of certain Indian tribes, but orders or decrees conferring such rights do not im-
pair restrictions against alienation of land imposed by national legislation.[2]
There is a difference between the authorities whether a decree removing the disabilities of infancy in con-
formity to the statute of one state can be recognized and given effect in another state. Some courts hold in the
negative and refuse to recognize such a decree rendered by a foreign court[3] while others hold that a State will
give full faith and credit to any contract made by the minor in the state issuing the decree, but the decree does
not change the minor's status while in the other state; the minor's actions and contracts there are instead gov-
erned by the laws there prevailing.[4] A similar rule has been applied as to the capacity of a minor to convey
land situated in the state of the forum when the decree removing the disability is issued in another state.[5]
On the other hand, in other jurisdictions, a decree of the state of an infant's domicil removing all the disabil-
ities of minority is decisive in another state, so that the infant's personal status for the purposes of the law of the
other state is that of a fully emancipated minor, although the effect of this status upon the minor's right to im-
movable property situated in another state is determined by the law of the situs of the property.[6]
[FN1] Watson v. Peebles, 102 Miss. 725, 59 So. 881 (1912).
[FN2] Hardesty v. Gordon, 1941 OK 334, 189 Okla. 677, 119 P.2d 70 (1941).
[FN3] Nelson v. Browning, 391 S.W.2d 873 (Mo. 1965).
[FN4] Deason v. Jones, 7 Cal. App. 2d 482, 45 P.2d 1025 (4th Dist. 1935).
[FN5] Decker v. Hickman, 1925 OK 933, 116 Okla. 65, 243 P. 516 (1925).

[FN6] Sun Oil Co. v. Guidry, 99 So. 2d 424 (La. Ct. App. 1st Cir. 1957).
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AMJUR INFANTS § 9
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Infants
I. In General
§ 10. Computation of age or majority
West's Key Number Digest, Infants 1, 2
A.L.R. Library
Inclusion or exclusion of the day of birth in computing one's age, 5 A.L.R.2d 1143
In common-law states, a youth attains majority at the first moment of the day preceding his or her 21st
birthday.[1] This common-law rule for computing age is applicable to criminal cases as well as civil cases[2] ex-
cept in those states in which the rules of the civil law obtain.[3]
When a statute provides for the computation of age, that statutory provision controls. The decisions,
however, are not in agreement. Some courts consider such a statute as changing the common-law method of
computation and construe it as deferring the attainment of majority until the first moment of the anniversary of
one's birth.[4] Other courts have reached the conclusion that such a statute is merely a reenactment of the pre-
vailing common-law rule.[5]
Comment:
According to the Restatement Second, Contracts, the common law fixed the age of 21 as the age at which both
men and women achieve full capacity to contract, and the rule that the critical moment is the beginning of the
preceding day was established because the law disregards fractions of a day. In almost every state, these rules
have been changed by statute. It appears that 49 states have lowered the age of majority, either generally or for
contract capacity, to less than 21; usually, to the age is 18. The birthday rather than the preceding day is the date
of majority in some states.[6]
[FN1] Erwin v. Benton, 120 Ky. 536, 27 Ky. L. Rptr. 909, 87 S.W. 291 (1905).
[FN2] People v. Stevenson, 23 A.D.2d 472, 262 N.Y.S.2d 238 (2d Dep't 1965), judgment rev'd on other
grounds, 17 N.Y.2d 682, 269 N.Y.S.2d 458, 216 N.E.2d 615 (1966).

[FN3] State ex rel. Fleming v. Joyce, 123 La. 637, 49 So. 221 (1909).
[FN4] Colby v. Glasco, 1927 OK 169, 125 Okla. 224, 257 P. 322 (1927).
[FN5] People v. Dudley, 53 Cal. App. 2d 181, 127 P.2d 569 (4th Dist. 1942) (abrogated on other
grounds by, In re Harris, 5 Cal. 4th 813, 21 Cal. Rptr. 2d 373, 855 P.2d 391 (1993)).
[FN6] Restatement Second, Contracts § 14, Comment a.
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AMJUR INFANTS § 10
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Infants
I. In General
§ 11. What law governs the determination of status
The decisions are not in agreement as to what law governs the determination of the status of the minority or
majority of a person. According to some cases, whether a person has attained legal majority is determined by the
law of his or her domicil[1] although the effect of such status upon his or her right to immovable property situ-
ated in another state is determined by the law of the situs of the property.[2] Other courts hold the status of
minority or majority of all persons within a state is exclusively a matter for that state to determine.[3]
Practice Tip:
When the question of the time when a person comes of age affects the running of the statute of limitations, the
law of the forum is decisive[4] because matters relating to the limitation of actions are procedural matters which
are governed by the law of the forum.[5]
rights reserved.
AMJUR INFANTS § 11
END OF DOCUMENT

AMJUR INFANTS II A REF Page 1
42 Am. Jur. 2d Infants II A Refs.

Infants
II. Protection
A. Power of State; Statutory Protection
Research References
West's Key Number Digest, Health 911

West's Key Number Digest, Infants 11.5 to 13, 13.5(1), 13.5(2), 15 to 15.5(6), 17, 20
Primary Authority
15 U.S.C.A. §§ 1262, 1278
18 U.S.C.A. §§ 2241 to 2248, 3509
42 U.S.C.A. §§ 5101 to 5116i
A.L.R. Library
A.L.R. Index, Abuse of Persons
West's A.L.R. Digest, Health §§911
West's A.L.R. Digest, Infants 11.5 to 13, 13.5(1), 13.5(2), 15 to 15.5(6), 17, 20
Trial Strategy
Proving Child Sexual Abuse in Custody or Visitation Dispute, 33 Am. Jur. Proof of Facts 3d 303
Corroboration of a Child's Sexual Abuse Allegation with Behavioral Evidence, 25 Am. Jur. Proof of Facts
3d 189
Defense to Charges of Sex Offense, 24 Am. Jur. Proof of Facts 2d 515

AMJUR INFANTS II A REF Page 2
42 Am. Jur. 2d Infants II A Refs.
Circumstances Warranting Court-Ordered Medical Treatment of Minors, 24 Am. Jur. Proof of Facts 2d 169
Failure to Report Suspected Case of Child Abuse, 6 Am. Jur. Proof of Facts 2d 345
Child Abuse—The Battered Child Syndrome, 2 Am. Jur. Proof of Facts 2d 365
Professional Liability for Failing to Report Child Abuse, 38 Am. Jur. Trials 1
rights reserved.
AMJUR INFANTS II A REF
END OF DOCUMENT


Infants
II. Protection
1. In General
§ 12. Generally; federal authority
West's Key Number Digest, Infants 11.5 to 13
The State, through its proper organs, exercises its power for the protection of its resident infants[1] since it,
as parens patriae,[2] is the guardian of the children within its jurisdiction.[3] Stated otherwise, each state has a
substantial[4] or compelling interest[5] in the welfare of its children and in preventing and deterring mistreat-
ment of them.[6] States have a responsibility to protect the interests of children[7] and may create restraints on
their freedom even though comparable restraints on adults would be constitutionally impermissible.[8]
Observation:
States have no power to provide varying levels of protection to children based on the circumstances of their
birth.[9]
The State's protective power depends upon the presence of infants within its territorial limits and not upon
the place of their domicil or their ownership of property within the state.[10]
The federal government does not stand in the position of parens patriae with reference to the persons and
property of infants except for those in the territories and the District of Columbia.[11]
CUMULATIVE SUPPLEMENT
Cases:
A state has no interest in protecting children from their parents unless it has some reasonable and articulable
evidence giving rise to a reasonable suspicion that a child has been abused or is in imminent danger of abuse.
Mulholland v. Government County of Berks, Pa., 706 F.3d 227 (3d Cir. 2013).
[END OF SUPPLEMENT]

[FN1] Sheller by Sheller v. Frank's Nursery & Crafts, Inc., 957 F. Supp. 150 (N.D. Ill. 1997) (applying
Illinois law).
[FN2] Gomes v. Wood, 451 F.3d 1122 (10th Cir. 2006); In re Mark M., 365 Md. 687, 782 A.2d 332
(2001); In re Adoption of Don, 435 Mass. 158, 755 N.E.2d 721 (2001).
[FN3] Matter of D.C., 146 N.J. 31, 679 A.2d 634 (1996).
[FN4] State ex rel. Children, Youth & Families Dept. v. Amy B., 133 N.M. 136, 2003-NMCA-017, 61
P.3d 845 (Ct. App. 2002).
[FN5] Ward v. Anderson, 494 F.3d 929 (10th Cir. 2007); State v. Taylor, 33 Kan. App. 2d 284, 101
P.3d 1283 (2004).
[FN6] Willis v. State, 888 N.E.2d 177 (Ind. 2008).
[FN7] Skrapka v. Bonner, 2008 OK 30, 187 P.3d 202 (Okla. 2008).
[FN8] In re Holly H., 104 Cal. App. 4th 1324, 128 Cal. Rptr. 2d 907 (1st Dist. 2002).
[FN9] Goodridge v. Department of Public Health, 440 Mass. 309, 798 N.E.2d 941 (2003).
[FN10] In re Pratt, 219 Minn. 414, 18 N.W.2d 147 (1945).
[FN11] New York Life Ins. Co. v. Bangs, 103 U.S. 435, 26 L. Ed. 580, 1880 WL 18856 (1880).
rights reserved.
AMJUR INFANTS § 12
END OF DOCUMENT


Infants
II. Protection
1. In General
§ 13. Scope of legislative power
West's Key Number Digest, Infants 11.5 to 13
The State, as parens patriae, is authorized to legislate for the protection or care of children within its juris-
diction.[1] Therefore, generally, each state has a duty to assure that the children within its borders receive ad-
equate care and treatment[2] and may even open itself to a constitutional challenge if it creates a special rela-
tionship when it removes children from their natural homes and places them under state supervision.[3]
Observation:
In exercising its powers of protection, most states emphasize that their law and policy is that the child's best in-
terest is paramount.[4]
In recognition of this legal principle, the legislatures in many states have enacted statutes designed to set
minors apart and afford to them privileges and immunities not possessed by adults.[5] The legislature may
define the status of infants requiring guardianship and may enforce state control and education of the infants
coming within that class.[6]
Minors, being peculiarly entitled to legislative protection, form a class to which legislation may be exclus-
ively directed without falling under the constitutional prohibition of special legislation and unfair discrimina-
tion.[7]
Cases:
Statute governing care and custody proceedings focuses on the safety and welfare of children, including, by
its express terms, unborn children. N.J.S.A. 30:4C–11. New Jersey Dept. of Children and Families, Div. of
Youth and Family Services v. A.L., 213 N.J. 1, 59 A.3d 576 (2013).
[END OF SUPPLEMENT]

[FN1] § 12.
[FN2] In In Interest of C.W., 554 N.W.2d 279 (Iowa Ct. App. 1996).
As to protection from abuse or danger to health, generally, see § 15.
[FN3] Olivia Y. ex rel. Johnson v. Barbour, 351 F. Supp. 2d 543 (S.D. Miss. 2004).
[FN4] Reuter v. Reuter, 102 Md. App. 212, 649 A.2d 24 (1994).
[FN5] §§ 15 to 23.
[FN6] Hunt v. Wayne Circuit Judges, 142 Mich. 93, 105 N.W. 531 (1905).
[FN7] People v. Walton, 70 Cal. App. 2d Supp. 862, 161 P.2d 498 (App. Dep't Super. Ct. 1945).
rights reserved.
AMJUR INFANTS § 13
END OF DOCUMENT


Infants
II. Protection
1. In General
§ 14. Determination of ages specified in statutes
West's Key Number Digest, Infants 12(1), 20
A.L.R. Library
Applicability of criminal statutes relating to offenses against children of a specified age with respect to a
child who has passed the anniversary date of such age, 73 A.L.R.2d 874
Many statutes enacted for the protection of infants are applicable only to children of the ages specified
therein, and under such statutes, the question sometimes arises whether a child who has passed the anniversary
of the age designated therein is within the coverage of the statute. A criminal statute proscribing an offense
against a child "under" a certain age,[1] or a child of a designated age "or under,"[2] is not applicable to a child
who has passed the anniversary of such age. Similarly, a statute requiring school attendance of any child who is
"8 years and not more than 14 years old" has been held not applicable to a child who has attained the age of 14
years before a public-school term begins.[3]
Caution:
Contrary authority, however, holds that the use of a specified age includes the days after the anniversary date
and through the date of the next birthday.[4] Thus, for example, it has been held that victims who are between
their 15th and 16th birthdays are "fifteen years of age" under statutes that criminalize sexual abuse of a minor
who is 13 through 15 years of age.[5]
On the other hand, a reference in a criminal statute to children "over" a certain age is construed as including
children who have passed the anniversary of such age,[6] although a statute requiring school attendance of chil-
dren "between the ages of seven and fifteen years inclusive,"[7] or children "between and including the ages of
seven and fifteen years,"[8] is not applicable to a child who has reached his or her 15th birthday. There is,
however, also a holding that a statute referring to children "between the ages of seven and sixteen years, inclus-
ive" is applicable to the full period of a child's 17th year.[9]

[FN1] People v. Dudley, 53 Cal. App. 2d 181, 127 P.2d 569 (4th Dist. 1942) (abrogated on other
grounds by, In re Harris, 5 Cal. 4th 813, 21 Cal. Rptr. 2d 373, 855 P.2d 391 (1993)).
As to the computation of the age of majority, see § 10.
[FN2] Knott v. Rawlings, 250 Iowa 892, 96 N.W.2d 900, 73 A.L.R.2d 868 (1959).
[FN3] Butler v. State, 81 Tex. Crim. 167, 194 S.W. 166 (1917).
[FN4] State v. Mitchell, 568 N.W.2d 493 (Iowa 1997).
[FN5] Crain v. State, 2009 WY 128, 218 P.3d 934 (Wyo. 2009).
[FN6] Application of Smith, 1960 OK CR 41, 351 P.2d 1076 (Okla. Crim. App. 1960).
[FN7] Gingerich v. State, 228 Ind. 440, 93 N.E.2d 180 (1950).
[FN8] Jackson v. Mason, 145 Mich. 338, 108 N.W. 697 (1906).
[FN9] Covell v. State, 143 Tenn. 571, 227 S.W. 41 (1921).
rights reserved.
AMJUR INFANTS § 14
END OF DOCUMENT


Infants
II. Protection
2. Protection from Abuse or Danger to Health or Morals
a. In General
§ 15. Generally
West's Key Number Digest, Infants 13, 13.5(2), 15 to 15.5(6)
A.L.R. Library
Constitutional Challenges to State Child Abuse Registries, 36 A.L.R.6th 475
Validity, construction, and application of Child Victims' and Child Witnesses' Rights Statute (18 U.S.C.A.
sec. 3509), 121 A.L.R. Fed. 631
Trial Strategy
3d 189
To ensure the best interest of the child, the power of the State transcends the right of the natural parents, and
if they are unfit to have custody, their children may be taken from them.[1] Consequently, legislation may be en-
acted whereby the State may assume custody where parents neglect their children in such manner that they are
likely to become public charges,[2] or the children's health, morals, or welfare are endangered.[3] The persons
on whom the duty to care for a child rests and who are therefore liable to prosecution under such statutes for the
failure to perform their duty are parents, guardians, and those who have assumed the relation in loco parentis.[4]
Observation:

The intent of a statute prohibiting the endangering of the life, limb, health, or morals of a child is to protect the
physical health, morals, and well-being of children,[5] and this solicitude relates not only to sexual offenses[6]
but to other dangers as well.[7]
The legislative policy of protecting minors from the abuse which underlies these types of statutes does not
support a narrow construction of the statutory terms and definitions[8] for statutory provisions relating to child
abuse are remedial in nature and deserve a liberal construction.[9] Penal statutes, such as child seduction stat-
utes[10] or child pornography statutes,[11] however, are penal in nature and should be strictly construed against
the State.
The Federal Child Victims' and Witnesses Rights Act provides various special protections for children who
are the victims of sexual or physical abuse or exploitation.[12] Federal law also provides for special fines and
sentencing for individuals who engage in sexual abuse,[13] including aggravated sexual abuse,[14] sexual abuse
of a minor or ward,[15] and abusive sexual contact.[16]
Observation:
A statute establishing a civil action for the sexual abuse of children applies to an action filed after the statute's
effective date even though the alleged acts of abuse occurred before the statute's effective date.[17]
A statute imposing reporting requirements on members of the clergy who suspect the abuse of a minor is not
retroactively applicable in the absence of a showing of a clear legislative intent.[18]
Cases:
Evidence that defendant pressed up against victim's backside and rubbed her thigh approximately one inch
from her vaginal area was sufficient to support conviction of forcible touching and endangering the welfare of a
child. McKinney's Penal Law § 130.52. People v. Bartlett, 89 A.D.3d 1453, 933 N.Y.S.2d 145 (4th Dep't 2011).
[END OF SUPPLEMENT]
[FN3] People v. Carroll, 244 A.D.2d 104, 678 N.Y.S.2d 6 (1st Dep't 1998), aff'd, 93 N.Y.2d 564, 693
N.Y.S.2d 498, 715 N.E.2d 500 (1999).
[FN4] Krukowski v. Swords, 15 F. Supp. 2d 188 (D. Conn. 1998) (applying federal and Connecticut
law; adolescent model's agent).
[FN5] State v. Payne, 240 Conn. 766, 695 A.2d 525 (1997).
[FN6] § 18.

[FN7] People v. Alvarez, 20 Misc. 3d 606, 860 N.Y.S.2d 745 (City Crim. Ct. 2008).
[FN8] Degren v. State, 352 Md. 400, 722 A.2d 887 (1999).
[FN9] R.L. v. Voytac, 402 N.J. Super. 392, 954 A.2d 527 (App. Div. 2008), certification granted, (Dec.
12, 2008) and certification granted in part, 197 N.J. 259, 962 A.2d 530 (2008) and judgment rev'd on
other grounds, 199 N.J. 285, 971 A.2d 1074 (2009).
[FN10] Stratton v. State, 791 N.E.2d 220, 178 Ed. Law Rep. 501 (Ind. Ct. App. 2003).
[FN11] Alexander Properties Group Inc. v. Doe, 280 Ga. 306, 626 S.E.2d 497 (2006).
[FN12] 18 U.S.C.A. § 3509.
As to the special procedures for child witnesses under the Federal Child Victims' and Witnesses Rights
Act, see Am. Jur. 2d, Witnesses §§ 58, 210, 694.
[FN13] 18 U.S.C.A. §§ 2241 to 2248.
[FN14] 18 U.S.C.A. § 2241.
[FN15] 18 U.S.C.A. § 2243.
Sexual abuse of a minor as statutory rape is discussed in Am. Jur. 2d, Rape § 11.
[FN16] 18 U.S.C.A. § 2244.
As to abusive sexual contact under the statute, generally, see Am. Jur. 2d, Lewdness, Indecency, and
Obscenity §§ 27, 28.
[FN17] J.L. v. J.F., 317 N.J. Super. 418, 722 A.2d 558 (App. Div. 1999).
As to the retroactively of criminal statutes, see § 20.
[FN18] Martinelli v. Bridgeport Roman Catholic Diocesan Corp., 989 F. Supp. 110 (D. Conn. 1997)
(applying Connecticut law).
rights reserved.
AMJUR INFANTS § 15
END OF DOCUMENT


Infants
II. Protection
a. In General
§ 16. Constitutional issues
West's Key Number Digest, Infants 12(8), 13, 13.5(2), 15 to 15.5(6)
A.L.R. Library
Trial Strategy
3d 189
Many authorities hold that statutes providing protection to children are not so vague as to be unconstitution-
al[1] although there is authority to the contrary.[2]
Caution:
A statute allowing for admission of hearsay statements by a child victim describing acts of sexual abuse does not
violate equal protection,[3] but a child hearsay statute that allows hearsay declarations made by a child under the
age of 14 who witnesses an act of sexual or physical abuse inflicted on another to be introduced as substantive
evidence in a criminal trial, so long as the child declarant is available to testify, violates equal protection when
the consistent hearsay statement of adult witnesses would not be admissible thus creating disparate categories of
defendants charged with the same offense but subject to differing types of proof.[4]

[FN1] Sanderson v. State, 2007 WY 127, 165 P.3d 83 (Wyo. 2007).
[FN2] City of Las Vegas v. Eighth Judicial Dist. Court ex rel. County of Clark, 118 Nev. 859, 59 P.3d
477 (2002) (statute providing that "a person who annoys or molests a minor is guilty of a misdemeanor"
was facially void for vagueness in violation of due process because the statute did not provide fair no-
tice of the boundaries of unlawful conduct).
[FN3] Weathersby v. State, 263 Ga. App. 341, 587 S.E.2d 836 (2003).
[FN4] Woodard v. State, 269 Ga. 317, 496 S.E.2d 896, 71 A.L.R.5th 787 (1998).
rights reserved.
AMJUR INFANTS § 16
END OF DOCUMENT


Infants
II. Protection
a. In General
§ 17. Availability of private cause of action for violation
West's Key Number Digest, Infants 13.5(1), 13.5(2), 17
A.L.R. Library
Trial Strategy
3d 189
Professional Liability for Failing to Report Child Abuse, 38 Am. Jur. Trials 1
The Federal Child Abuse Prevention and Treatment Act[1] requiring states to implement procedures for the
investigation of child abuse and the protection of children does not create a private cause of action.[2] Similarly,
although most state child abuse reporting statutes do not create a private cause of action,[3] one court has de-
clared that a private cause of action is implied under the state's statute mandating the report of abuse or neglect.[
4] Furthermore, such statutes may confer upon parents a liberty interest that is enforceable in a claim for a viola-
tion of procedural due process.[5]
Observation:
The main factor in determining whether a statute creates a private cause of action for duty to report is legislative

intent.[6]
Cases:
Doctor's reporting parents to state for medical neglect and social worker's initiating proceedings against par-
ents in juvenile court did not constitute a flagrant violation of parents' state constitutional procedural due process
rights, as would support parents' claim for damages, where parents were provided with adequate notice and a
meaningful opportunity to be heard. West's U.C.A. Const. Art. 1, § 7. Jensen ex rel. Jensen v. Cunningham,
2011 UT 17, 250 P.3d 465 (Utah 2011).
[END OF SUPPLEMENT]
[FN1] 42 U.S.C.A. §§ 5101 to 5116i.
[FN2] Alger v. County of Albany, New York, 489 F. Supp. 2d 155 (N.D. N.Y. 2006).
[FN3] Doe ex rel. Doe v. White, 627 F. Supp. 2d 905, 247 Ed. Law Rep. 191 (C.D. Ill. 2009); Doe v. S
& S Consol. I.S.D., 149 F. Supp. 2d 274, 155 Ed. Law Rep. 370 (E.D. Tex. 2001), aff'd, 309 F.3d 307
(5th Cir. 2002); McGarrah v. Posig, 280 Ga. App. 808, 635 S.E.2d 219 (2006); Meyer v. Lindala, 675
N.W.2d 635 (Minn. Ct. App. 2004); Doe v. Marion, 373 S.C. 390, 645 S.E.2d 245 (2007).
[FN4] Doe v. Corporation of President of Church of Jesus Christ of Latter-Day Saints, 141 Wash. App.
407, 167 P.3d 1193 (Div. 1 2007), review denied, 164 Wash. 2d 1009, 195 P.3d 87 (2008).
[FN5] Ross v. State of Ala., 15 F. Supp. 2d 1173 (M.D. Ala. 1998) (applying federal and Alabama law).
[FN6] Doe v. Marion, 361 S.C. 463, 605 S.E.2d 556 (Ct. App. 2004), decision aff'd, 373 S.C. 390, 645
S.E.2d 245 (2007).
rights reserved.
AMJUR INFANTS § 17
END OF DOCUMENT


Infants
II. Protection
b. Criminalized Activities
(1) In General
§ 18. Generally
West's Key Number Digest, Infants 12(8), 13, 15, 20
A.L.R. Library
Validity, Construction, and Application of State Statutes Prohibiting Child Luring as Applied to Cases In-
volving Luring of Child by Means of Verbal or Other Nonelectronic Communications, 35 A.L.R.6th 361
Validity, construction, and application of state statutes or ordinances regulating sexual performance by
child, 42 A.L.R.5th 291
Modern status of rule regarding necessity for corroboration of victim's testimony in prosecution for sexual
offense, 31 A.L.R.4th 120
Trial Strategy
3d 189
Defense to Charges of Sex Offense, 24 Am. Jur. Proof of Facts 2d 515
Law Reviews and Other Periodicals
Costigliacci, Note, Protecting Our Children from Sex Offenders: Have we Gone too Far?, 46 Fam. Ct. Rev.
180 (2008)
Statutes may prescribe a penalty for an assault and battery causing substantial bodily injury to a child.[1]

Observation:
An assault and battery upon a child statute, prohibiting one having care and custody of a child, from wantonly or
recklessly permitting substantial bodily injury to a child, is not unconstitutionally vague for failure to adequately
define those persons subject to its prohibitions, where persons having "care and custody" are well understood to
include not only biological parents, but any persons, regardless of formal familial relationship, who have as-
sumed either permanent or temporary responsibility for a child's care.[2]
Likewise, the fact that a provision of a child abuse statute stating that "shaking which results in great bodily
harm" is not specifically modified within the same statute by a mental state does not render the statute unconsti-
tutionally vague, where the statute very specifically specifies the physical conduct that is prohibited, and the
statute setting forth the general criminal intent required for all crimes in the state provides fair warning of the re-
quisite mental state.[3]
Some statutes make it a criminal offense to annoy or molest a child,[4] or to commit a sexual offense
against a minor,[5] or the taking of indecent liberties with a minor.[6]
Caution:
Care must be given to determine the class of persons who are subject to the statute. Thus, for example, certain
statutes dealing with molestation or similar acts may apply only to persons other than parents.[7]
Statutes often require corroborative evidence when the victim of a sexual offense is a minor or a minor un-
der a specified age;[8] however, in cases of sexual assault or molestation of a child, the statute may constitution-
ally dispense with the requirement of corroboration if there was a timely outcry by a victim at least 14 years of
age.[9] In fact, in some states the prosecution may not be required to produce corroborative evidence of alleged
abuse in order for the trial court to rule hearsay testimony admissible under a statute which allows for the admis-
sion of a hearsay statement of a child under 13 who alleges physical or sexual abuse.[10]
The availability of a statutory mistake of fact defense to a child molesting charge is not limited to those de-
fendants who reasonably believe the victim was 16 years or older; the defense is available to any defendant who
reasonably believes the victim to be of such an age that the activity engaged in is not criminally prohibited.[11]
Nevertheless, mistake of fact as to a victim's age is not a defense to aggravated child molestation or child mo-
lestation[12] or indecency with a child by contact.[13] Furthermore, mistake of fact is not a defense where a
statute unequivocally informs individuals that they cannot use a computer to sexually solicit a child under the
age of 14.[14]
Cases:
Evidence was sufficient to support verdict that defendant committed element of asportation, as would sup-
port conviction for enticing a child for indecent purposes, where victim testified that defendant grabbed her arms
and forcefully moved her from a stairwell into an empty apartment. West's Ga.Code Ann. § 16–6–5. Rollins v.
State, 733 S.E.2d 841 (Ga. Ct. App. 2012).
Evidence supported conviction for enticing a child for indecent purposes; defendant admitted he had
watched pornographic videos together with 12– or 13–year–old child, after child's mother had left and while the

child was lying on his bed, and child testified that defendant encouraged her to watch the videos, that he asked
her to get into positions depicted, and that he laid on her and moved up and down. West's Ga.Code Ann. §
16–6–5. Hanson v. State, 305 Ga. App. 900, 700 S.E.2d 896 (2010).
If the trial record does not include evidence that defendant's age at time of offense was 18 or older, the de-
fendant may be exposed to punishment only for the on-grid form of aggravated indecent liberties with a child.
K.S.A. 21–3504(a)(3)(A) (Repealed). State v. Hernandez, 273 P.3d 774 (Kan. 2012).
Evidence was sufficient to establish that defendant abused two-year old victim, in trial of defendant for
first-degree criminal abuse; defendant was victim's primary caregiver, victim suffered a broken leg when de-
fendant entered victim's bedroom alone, admitting physician testified that defendant's story did not match the
type of fracture victim suffered, admitting physician also testified that bruising on victim was consistent with
abuse, and pediatric radiologist testified that the type of fracture victim suffered was not common in a two-year
old. KRS 508.100. Mason v. Com., 331 S.W.3d 610 (Ky. 2011).
Evidence was sufficient to establish that defendant should have known that large amount of heroin and drug
paraphernalia were in her apartment, where four children under the age of 18 lived, supporting defendant's con-
viction for unlawfully dealing with a child. McKinney's Penal Law § 260.20(1). People v. Diaz, 100 A.D.3d
446, 954 N.Y.S.2d 20 (1st Dep't 2012).
The occurrence of three or more sexual acts or contacts is an essential element of the offense of continuous
sexual abuse of a child. NDCC 12.1–20–03.1. State v. Gomez, 2011 ND 29, 793 N.W.2d 451 (N.D. 2011).
To be convicted of unlawful contact with a minor, a defendant need not be convicted of the substantive of-
fense for which he contacted the minor. 18 Pa.C.S.A. § 6318(a). Com. v. Reed, 9 A.3d 1138 (Pa. 2010).
Eyewitness testimony to offenses of indecency with a child and sexual assault was not required for defend-
ant to be convicted of such offenses, under former statute permitting convictions for such offenses to be suppor-
ted by uncorroborated testimony of alleged victim only if victim informed any person other than defendant of al-
leged offense within six months after date on which offense is alleged to have occurred except if alleged victim
was younger than 14 years of age at time of alleged offense, where defendant admitted on his own to such con-
duct. Vernon's Ann.Texas C.C.P. art. 38.07. Carmell v. State, 331 S.W.3d 450 (Tex. App. Fort Worth 2010), pe-
tition for discretionary review refused, (Apr. 6, 2011).
[END OF SUPPLEMENT]
[FN1] Com. v. Macey, 47 Mass. App. Ct. 42, 710 N.E.2d 1017 (1999).
[FN2] Com. v. Panagopoulos, 60 Mass. App. Ct. 327, 801 N.E.2d 317 (2004).
As to the constitutionality of criminal statutes pertaining to the protection of children from abuse or
dangers to health or morals, see § 19.
[FN3] Carr v. Koerner, 2002 WL 1496855 (D. Kan. 2002) (applying Kansas law).
[FN4] State v. Tandy, 401 S.W.2d 409 (Mo. 1966).
[FN5] State v. Blackmon, 130 N.C. App. 692, 507 S.E.2d 42 (1998).
[FN6] State v. Reed, 40 Kan. App. 2d 269, 191 P.3d 341 (2008), review denied, (Feb. 4, 2010); Koles-
nikoff v. Com., 54 Va. App. 396, 679 S.E.2d 559 (2009); Sanderson v. State, 2007 WY 127, 165 P.3d

83 (Wyo. 2007).
[FN7] State v. Mullins, 267 Kan. 84, 977 P.2d 931 (1999).
[FN8] Ex parte C.L.Y., 928 So. 2d 1069 (Ala. 2005); State v. C.J., 148 Wash. 2d 672, 63 P.3d 765
(2003).
[FN9] Reed v. State, 991 S.W.2d 354 (Tex. App. Corpus Christi 1999), petition for discretionary review
refused, (Nov. 3, 1999).
[FN10] In re K.U., 2006 OK CIV APP 88, 140 P.3d 568 (Div. 3 2006).
[FN11] Lechner v. State, 715 N.E.2d 1285 (Ind. Ct. App. 1999).
[FN12] Disabato v. State, 303 Ga. App. 68, 692 S.E.2d 701 (2010).
[FN13] Abalos v. State, 2002 WL 704655 (Tex. App. Austin 2002), petition for discretionary review re-
fused, (Oct. 23, 2002).
[FN14] LaRose v. State, 820 N.E.2d 727 (Ind. Ct. App. 2005).
rights reserved.
AMJUR INFANTS § 18
END OF DOCUMENT


Infants
II. Protection
(1) In General
§ 19. Constitutionality
West's Key Number Digest, Infants 12(4), 12(8), 13, 20
A.L.R. Library
Statute protecting minors in a specified age range from rape or other sexual activity as applicable to defend-
ant minor within protected age group, 18 A.L.R.5th 856
Validity and construction of penal statute prohibiting child abuse, 1 A.L.R.4th 38
Statutes criminalizing actions against minors or infants are constitutional.[1]
Observation:
Simply because the core of the prohibited activity involves a particular type of prohibited activity engaged in by
adult males with female minors does not preclude the statute from being applied to similar activity conducted
against male minors; thus, for example, a statute which prohibits any touching of the breast of a child with the
intent to arouse or gratify sexual desires is neither unconstitutionally vague as applied to a defendant who
touched the breast of a 10-year-old boy nor unconstitutionally vague in all its applications even though the core
of well-defined prohibited activity involved female children.[2]
A child rape statute which prohibits, in no uncertain terms, sexual intercourse with children under the age of
14 is not unconstitutionally vague.[3] Similarly, a statute setting forth the crime of the continuous sexual abuse
of a child is not unconstitutionally vague,[4] and it does not violate a defendant's Sixth Amendment right to a
fair trial by a jury nor his or her 14th Amendment right to due process.[5]
A statute making it a crime for a person 24 years of age or older to engage in sexual activity with a person
16 or 17 years of age does not violate a defendant's equal protection rights as the age classification is not arbit-
rary and the statute is reasonably related to the goal of protecting minors from sexual exploitation by adults; nor

does the statute violate a defendant's right to privacy.[6] Similarly, a statute criminalizing the act of sexual pen-
etration or sexual conduct by an accused who is under 17 years of age with a victim who is nine to 16 years of
age may validly be applied to proscribe sexual acts between nine-year-olds and 16-year-olds and, thus, is not un-
constitutionally vague on its face.[7]
A statutory provision that an unmarried parent with custody or control over a child commits child endanger-
ment by cohabiting with a known sex offender does not violate equal protection under a rational-basis test, even
though the provision does not apply to a person married to and living with a sex offender, where the objective of
the provision is to protect children from sex crimes by limiting contact with registered sex offenders who are
neither a parent nor a stepparent, and it is realistically conceivable that unmarried cohabiting sex offenders do
not have the same stake in a child's financial and physical well-being and thus pose a greater threat to the child.[
8]
Cases:
Statute criminalizing traveling in foreign commerce for purpose of engaging in a sex act with a minor was
not unconstitutionally vague under Due Process Clause, despite defendant's argument that cross-reference in
statute, to sexual act "that would be in violation of" certain chapter made requirements for ages of victims con-
tradictory and confusing; cross-reference, though perhaps awkwardly phrased, did not introduce confusion,
since, together, statute and crimes listed in cross-referenced chapter criminalized interstate and foreign travel
undertaken for engaging in a sexual act with a minor under the age of 12, engaging in a sexual act with a minor
between the ages of 12 and 16 if the perpetrator was at least four years older than the victim, and engaging in a
sexual act with a minor between the ages of 16 and 18 by the use of force or threat. U.S.C.A. Const.Amend. 5;
18 U.S.C.A. §§ 2241(a, c), 2243(a); 18 U.S.C.(2000 Ed.) § 2423(b). U.S. v. Stokes, 726 F.3d 880 (7th Cir. 2013)
.
Defendant's sentence of 15 years to life for the offense of lewd act with a child under age 14, with findings
of substantial sexual conduct with a child and great bodily injury, was not cruel or unusual in violation of Eighth
Amendment, even if defendant committed the crime while drunk, where defendant had two prior convictions for
driving under the influence, and the great bodily injury finding was based on defendant's act of impregnating the
victim. U.S.C.A. Const.Amend. 8; West's Ann.Cal.Penal Code §§ 288(a), 667.61(b), (e), 1203.066(a)(8),
12022.8. People v. Meneses, 193 Cal. App. 4th 1087, 2011 WL 1054029 (4th Dist. 2011).
Statutory rape provision, as applied to child under age 13 who engages in sexual conduct with another child
under age 13, is unconstitutionally vague in violation of due process because the statute authorizes and encour-
ages arbitrary and discriminatory enforcement; when two children under the age of 13 engage in sexual conduct
with each other, each child is both an offender and a victim, and the distinction between those two terms breaks
down. U.S.C.A. Const.Amend. 14; R.C. § 2907.02(A)(1)(b). In re D.B., 129 Ohio St. 3d 104, 2011-Ohio-2671,
950 N.E.2d 528 (2011).
Statute defining offense of continuous sexual abuse of a child under the age of 14 provided sufficient guid-
ance to law enforcement personnel and was not so indefinite as to encourage arbitrary and discriminatory en-
forcement, and was thus not unconstitutionally vague; statute prohibited pattern of abuse unaddressed by statutes
prohibiting individual acts of sexual abuse of a child, adequately detailing prohibited conduct to extent that en-
forcement of statute was not relegated to subjective interpretation of law enforcement personnel. McMillian v.
State, 388 S.W.3d 866 (Tex. App. Houston 14th Dist. 2012).

[END OF SUPPLEMENT]
[FN1] People v. Spurlock, 114 Cal. App. 4th 1122, 8 Cal. Rptr. 3d 372 (1st Dist. 2003) (statutes prohib-
iting creation of child pornography and child sexual exploitation); People v. Jackson, 358 Ill. App. 3d
927, 295 Ill. Dec. 267, 832 N.E.2d 418 (1st Dist. 2005) (distribution of harmful material to minors);
State v. Snyder, 155 Ohio App. 3d 453, 2003-Ohio-6399, 801 N.E.2d 876 (3d Dist. Allen County 2003)
(using telecommunications device to solicit minor for sexual activity).
[FN2] Sullivan v. State, 986 S.W.2d 708 (Tex. App. Dallas 1999).
[FN3] State ex rel. W.C.P., 1999 UT App 35, 974 P.2d 302 (Utah Ct. App. 1999).
[FN4] State v. Martin, 2001 ND 189, 636 N.W.2d 447 (N.D. 2001).
[FN5] People v. Adames, 54 Cal. App. 4th 198, 62 Cal. Rptr. 2d 631 (2d Dist. 1997).
[FN6] State v. Walborn, 729 So. 2d 504 (Fla. Dist. Ct. App. 2d Dist. 1999) (under state constitution).
[FN7] In re T.W., 291 Ill. App. 3d 955, 226 Ill. Dec. 376, 685 N.E.2d 631 (1st Dist. 1997).
[FN8] State v. Mitchell, 757 N.W.2d 431 (Iowa 2008).
rights reserved.
AMJUR INFANTS § 19
END OF DOCUMENT


Infants
II. Protection
(1) In General
§ 20. Retroactive effect
West's Key Number Digest, Infants 12(10), 20
The retroactive application of a statute which serves to increase a defendant's penalty as a sex offender after
the offense in question violates the defendant's privilege against ex post facto laws.[1] Moreover, the application
of a child molestation statute to offenses for which a substantial portion of the charging period predates the stat-
ute's effective date violates the due-process rights of the defendant as a jury may convict the defendant for acts
occurring before the effective date.[2] However, a defendant's conviction for continuous sexual abuse of a child,
based in part on conduct occurring before the effective date of the statute defining the crime, does not violate a
statutory provision stating that the penal code does not apply retroactively unless it expressly so declares, as the
statute requires the completion of the course of conduct after the statute's effective date, so the statute is not be-
ing applied retroactively.[3]
A statute does not violate the prohibition against ex post facto laws when it provides a procedural change
but does not affect the kind or amount of evidence needed for a conviction. Thus, an amendment eliminating the
outcry requirement for sexual assault victims under age 18 was not an ex post facto law when applied to a de-
fendant charged with sexual assaults of victims under age 18 occurring before the amendment.[4] Likewise, the
Ex Post Facto Clause is not violated by the retroactive application of an amendment to a statute of limitations
for child sexual assault where the limitations change occurs before the prior statute of limitations has run.[5]
When the range of punishment for a sexual offense against a child has changed after the date of the offense,
statute may mandate that, although the law in effect at the time of the offense be applied to determine guilt, if
the punishment has been lessened by subsequent statute, the subsequent statute (and not the punishment statute
in effect at the time of the offense) must be applied.[6]
[FN1] State v. Lathrop, 781 N.W.2d 288 (Iowa 2010).

[FN2] Nuerge v. State, 677 N.E.2d 1043 (Ind. Ct. App. 1997); State v. Aho, 137 Wash. 2d 736, 975
P.2d 512 (1999).
[FN3] People v. Grant, 20 Cal. 4th 150, 83 Cal. Rptr. 2d 295, 973 P.2d 72 (1999) (defendant had fair
warning he would be punished under the statute if he chose to continue the sexual abuse after the stat-
ute's effective date).
[FN4] Graves v. State, 994 S.W.2d 238 (Tex. App. Corpus Christi 1999).
[FN5] State v. Haines, 256 Wis. 2d 226, 2002 WI App 139, 647 N.W.2d 311 (Ct. App. 2002), decision
aff'd, 2003 WI 39, 261 Wis. 2d 139, 661 N.W.2d 72 (2003).
[FN6] State v. Pritchard, 982 S.W.2d 273 (Mo. 1999).
rights reserved.
AMJUR INFANTS § 20
END OF DOCUMENT


Infants
II. Protection
(2) Failure to Provide Medical Attention
§ 21. Generally
West's Key Number Digest, Infants 13, 15, 20
A.L.R. Library
Parents' Criminal Liability for Failure to Provide Medical Attention to Their Children, 118 A.L.R.5th 253
Parents are generally under a legal duty of providing medical attention for their children.[1] Consequently,
under some statutes, a person who willfully omits, without lawful excuse, to furnish medical treatment for a
child to whom such person owes a duty of care is guilty of a crime.[2] For example, evidence supported a find-
ing that a defendant acted "willfully" and in "reckless disregard for human life," as required to support a convic-
tion for felony child neglect, where the evidence showed that the defendant failed to secure prompt medical at-
tention for the children in her charge, even though she believed that they had taken something and recognized
that the ingesting of drugs could pose a substantial risk of serious injury or death.[3]
Observation:
The visible appearance of a child can give notice to the parents that their child needs medical attention, for pur-
pose of proving the knowledge element of first-degree child endangerment.[4]
In some cases, the word "support" as used in a statute making the failure to support a child a criminal of-
fense has been construed to include the failure to provide necessary medical attendance.[5] On the other hand,
the failure to furnish medicine is not a violation of a statute making the deprivation of "necessary sustenance" of
a child a misdemeanor since the word "sustenance" means food and drink and not medicine.[6]
Observation:
A statute making the failure to furnish medical attendance to a child a criminal offense requires the furnishing of
such medical attendance as an ordinarily prudent person would provide.[7] In determining the kind and amount

of medical attendance required under such statutes, the court considers the means, ability, social position, and
circumstances of the person obligated.[8]
Lying to hospital personnel about the cause of a child's burns does not constitute the withholding of neces-
sary and adequate medical attention for the purpose of a conviction of first-degree criminal mistreatment.[9]
[FN2] People v. Norton, 47 Cal. App. 2d 139, 117 P.2d 402 (3d Dist. 1941).
[FN3] Flowers v. Com., 49 Va. App. 241, 639 S.E.2d 313 (2007).
[FN4] State v. Buhr, 169 S.W.3d 170 (Mo. Ct. App. W.D. 2005).
[FN5] State v. Moran, 99 Conn. 115, 121 A. 277, 36 A.L.R. 862 (1923).
[FN6] State v. Shouse, 268 Mo. 199, 186 S.W. 1064 (1916).
[FN7] Lamb v. State, 1956 OK CR 17, 293 P.2d 624 (Okla. Crim. App. 1956).
[FN9] State v. Bordeaux, 220 Or. App. 165, 185 P.3d 524 (2008).
rights reserved.
AMJUR INFANTS § 21
END OF DOCUMENT


Infants
II. Protection
§ 22. Evidence
In a prosecution based on a failure to furnish medical attendance to a minor child, the prosecution must af-
firmatively prove that such attendance was necessary.[1] The statutory offense of failing to furnish medical at-
tendance to a child contains no element of abandonment or desertion[2] so to sustain a conviction for such an of-
fense it is not necessary to prove that the child in question is in danger of becoming a public charge by reason of
the failure to furnish medical attendance.[3]
The failure to procure proper medical attention for a child's injuries constitutes sufficient proof of cruelty to
children,[4] and malice, as an element of the crime of cruelty to children, can be shown by intentionally and un-
justifiably delaying necessary medical attention for a child as that delay may cause the child to suffer from cruel
and excessive physical pain.[5]
The particular religious belief of the defendant constitutes no defense,[6] nor does denial of such a defense
violate the freedom of religious worship, since the religious belief secured by the constitution does not extend to
practices inconsistent with the peace or safety of the state, which involves the protection of the lives and health
of its children as well as obedience to its laws.[7]
Practice Tip:
The question of the necessity of medical attendance in such a case is ordinarily a question of fact for the jury.[8]
Cases:
Evidence was sufficient to support finding that defendant's children suffered cruel and excessive mental
pain as a result of the patently unhealthy, filthy, and dangerous conditions in which they were forced to live,

thus supporting conviction for cruelty to children in the second degree; state presented overwhelming evidence
of the filthy and neglected conditions of the children, children had suffered significant developmental delays,
child had been confined to a urine and feces-stained crib without a diaper, other child was locked in a urine-
soiled bedroom without access to a toilet, when police brought children into front room of home they exhibited
fervor to eat trash out of the garbage bags on the floor, and there were oppressive and obnoxiously foul odors to
which children were chronically exposed. West's Ga.Code Ann. § 16–5–70(c). Staib v. State, 309 Ga. App. 785,
711 S.E.2d 362 (2011).
The term "maliciously" has such common understanding that there is no need to define it for the jury in pro-
secution for cruelty to children in the first degree. West's Ga.Code Ann. § 16–5–70(b). Bunn v. State, 307 Ga.
App. 381, 705 S.E.2d 180 (2010).
[END OF SUPPLEMENT]
[FN1] People v. Yates, 114 Cal. App. Supp. 782, 298 P. 961 (App. Dep't Super. Ct. 1931).
[FN2] People v. Lewis, 132 A.D. 256, 116 N.Y.S. 893 (1st Dep't 1909).
[FN4] Freeman v. State, 293 Ga. App. 490, 667 S.E.2d 652 (2008).
[FN5] Glenn v. State, 278 Ga. 291, 602 S.E.2d 577 (2004).
[FN6] Mitchell v. Davis, 205 S.W.2d 812, 12 A.L.R.2d 1042 (Tex. Civ. App. Dallas 1947), writ re-
fused.
[FN7] People v. Pierson, 176 N.Y. 201, 68 N.E. 243 (1903).
[FN8] Owens v. State, 1911 OK CR 262, 6 Okla. Crim. 110, 116 P. 345 (1911).
rights reserved.
AMJUR INFANTS § 22
END OF DOCUMENT


Infants
II. Protection
§ 23. Provision of treatment by State
West's Key Number Digest, Health 911

A.L.R. Library
Power of court or other public agency to order medical treatment over parental religious objections for child
whose life is not immediately endangered, 21 A.L.R.5th 248
Propriety of surgically invading incompetent or minor for benefit of third party, 4 A.L.R.5th 1000
Power of court or other public agency to order medical treatment for child over parental objections not
based on religious grounds, 97 A.L.R.3d 421
Trial Strategy
Circumstances Warranting Court-Ordered Medical Treatment of Minors, 24 Am. Jur. Proof of Facts 2d 169
The State may order medical treatment for a child's nonlife-threatening condition, notwithstanding the ob-
jection of the parents on religious grounds, if the treatment will, in all likelihood, temporarily or permanently
solve a substantial medical problem.[1]
Observation:
Courts can order compulsory medical treatment of children for any serious illness or injury,[2] to the extent that
a societal interest or harm can be demonstrated by the refusal of the treatment, as for example, when the refusal
of treatment is life-threatening to a minor and will have a negative societal impact on the minor's children.[3]

The exercise of the State's power to protect the lives and health of its children over the objection of their
custodians does not violate the constitutional right to freedom of religion even though the parental objection to
medical treatment is based on religious grounds.[4] Thus, an order to administer blood transfusions is sustain-
able under a statute permitting a court, upon the certificate of one or more reputable physicians, to provide sum-
marily for emergency medical treatment which is immediately necessary for any child.[5] The State's power to
interfere may include treatment for mental or emotional ills, as well as purely physical ailments.[6]
[FN1] In re D.R., 2001 OK CIV APP 21, 20 P.3d 166 (Div. 4 2001).
[FN2] Application of President and Directors of Georgetown College, Inc., 331 F.2d 1000, 9 A.L.R.3d
1367 (D.C. Cir. 1964).
[FN3] In re Brooks' Estate, 32 Ill. 2d 361, 205 N.E.2d 435 (1965).
[FN4] Levitsky v. Levitsky, 231 Md. 388, 190 A.2d 621 (1963).
[FN5] In re Clark, 21 Ohio Op. 2d 86, 90 Ohio L. Abs. 21, 185 N.E.2d 128 (C.P. 1962).
[FN6] In re Carstairs, 115 N.Y.S.2d 314 (Dom. Rel. Ct. 1952).
rights reserved.
AMJUR INFANTS § 23
END OF DOCUMENT

AMJUR INFANTS II B REF Page 1
42 Am. Jur. 2d Infants II B Refs.

Infants
II. Protection
B. Protection by Courts
Research References
West's Key Number Digest, Infants 11.5, 17, 18, 20
A.L.R. Library
A.L.R. Index, Abuse of Persons
West's A.L.R. Digest, Infants 11.5, 17, 18, 20
rights reserved.
AMJUR INFANTS II B REF
END OF DOCUMENT


Infants
II. Protection
§ 24. Generally; power of courts
West's Key Number Digest, Infants 11.5, 18
A.L.R. Library
Eligibility for Special Immigrant Juvenile Status Under 8 U.S.C.A. § 1101(a)(27)(J) and 8 C.F.R. § 204.11,
67 A.L.R. Fed. 2d 299
Trial Strategy
Child Neglect, 3 Am. Jur. Proof of Facts 2d 265
Adelson, The Case of the Eroding Special Immigrant Juvenile Status, 18 J. Transnat'l L. & Pol'y 65 (2008)
Carr, Incorporating a Best Interests of the Child Approach Into Immigration Law and Procedure, 12 Yale
Hum. Rts. & Dev. L.J. 120 (2009)
Estin, Global Child Welfare: The Challenges for Family Law, 63 Okla. L. Rev. 691 (2011)
Gonzalez, Battered Immigrant Youth Take the Beat: Special Immigrant Juveniles Permitted to Age-Out of
Status, 8 Seattle J. for Soc. Just. 409 (2009)
Haralambie, Special Immigrant Juvenile Status, 31-WTR Fam. Advoc. 12 (2009)
Liebman, Keeping Promises to Immigrant Youth, 29 Pace L. Rev. 511 (2009)
Liebmann, Family Court and the Unique Needs of Children and Families Who Lack Immigration Status, 40
Colum. J.L. & Soc. Probs. 583 (2007)

Mai, Children Under the Radar: The Unique Plight of Special Immigrant Juveniles, 12 Barry L. Rev. 241
(2009)
Turano, Social Justice in the Surrogate's Courts, 25 J. Civ. Rts. & Econ. Dev. 173 (2010)
There is reposed in the courts inherent equitable authority to fashion appropriate remedies to protect the
welfare of children and advance their best interests,[1] and this is so even where a specific statute addresses the
issue at hand.[2] In fact, some jurisdictions state that, because infants are considered the wards of the court, it is
the duty of the courts to exercise such jurisdiction.[3]
Observation:
It is an accepted public policy to protect and preserve the welfare of children,[4] and therefore, children should
not be precluded from enforcing their rights unless clearly barred from doing so.[5]
In matters of a child's welfare, trial courts are vested with broad discretion in making the decisions neces-
sary to guard and to foster a child's best interests.[6] Thus, in all suits or legal proceedings, of whatever nature,
in which the personal or property rights of a minor are involved, the protective powers of a court may be in-
voked whenever it becomes necessary fully to protect those rights.[7]
The minor is always the ward of every court[8] wherein his or her rights or property are brought in jeop-
ardy[9] and is entitled to most jealous care that no injustice be done him or her.[10] In other words, the court is,
in legal contemplation, the infant's guardian[11] and can override the will of parents and guardians to assert the
fundamental rights of children and wards.[12]
An infant is no less a ward in chancery when his or her estate involved is a legal one as distinguished from
an equitable estate.[13]
[FN1] New Jersey Div. of Youth and Family Services v. M.W., 398 N.J. Super. 266, 942 A.2d 1 (App.
Div. 2007).
[FN2] In re Guardianship of Carly A.T., 272 Wis. 2d 662, 2004 WI App 73, 679 N.W.2d 903 (Ct. App.
2004).
[FN3] Favier by Favier v. Winick, 151 Misc. 2d 910, 583 N.Y.S.2d 907 (Sup 1992).
[FN4] New Jersey Div. of Youth and Family Services v. M.W., 398 N.J. Super. 266, 942 A.2d 1 (App.
Div. 2007).
[FN5] Bruso by Bruso v. Alexian Bros. Hosp., 178 Ill. 2d 445, 227 Ill. Dec. 532, 687 N.E.2d 1014
(1997).
[FN6] Duva v. Duva, 55 Va. App. 286, 685 S.E.2d 842 (2009).
[FN7] Workman v. Workman, 167 Neb. 857, 95 N.W.2d 186 (1959).
[FN8] In re Abrams & Abrams, P.A., 605 F.3d 238 (4th Cir. 2010); Jensen ex rel. Stierman v. McPher-

son, 258 Wis. 2d 962, 2002 WI App 298, 655 N.W.2d 487 (Ct. App. 2002).
[FN9] Jensen ex rel. Stierman v. McPherson, 258 Wis. 2d 962, 2002 WI App 298, 655 N.W.2d 487 (Ct.
App. 2002).
[FN10] Saul v. Alcorn, 2007 OK 90, 176 P.3d 346 (Okla. 2007); Jensen ex rel. Stierman v. McPherson,
258 Wis. 2d 962, 2002 WI App 298, 655 N.W.2d 487 (Ct. App. 2002).
[FN11] Gibbs v. Andrews, 299 Ill. 510, 132 N.E. 544 (1921).
[FN12] In re Estate of K.E.J., 382 Ill. App. 3d 401, 320 Ill. Dec. 560, 887 N.E.2d 704 (1st Dist. 2008).
[FN13] Sangster v. Toledo Mfg. Co., 193 Ga. 685, 19 S.E.2d 723 (1942).
rights reserved.
AMJUR INFANTS § 24
END OF DOCUMENT


Infants
II. Protection
§ 25. Necessity of appointment of guardian ad litem
West's Key Number Digest, Infants 11.5, 17, 20
A.L.R. Library
Eligibility for Special Immigrant Juvenile Status Under 8 U.S.C.A. § 1101(a)(27)(J) and 8 C.F.R. § 204.11,
67 A.L.R. Fed. 2d 299
Trial Strategy
Child Neglect, 3 Am. Jur. Proof of Facts 2d 265
Adelson, The Case of the Eroding Special Immigrant Juvenile Status, 18 J. Transnat'l L. & Pol'y 65 (2008)
Carr, Incorporating a Best Interests of the Child Approach Into Immigration Law and Procedure, 12 Yale
Hum. Rts. & Dev. L.J. 120 (2009)
Estin, Global Child Welfare: The Challenges for Family Law, 63 Okla. L. Rev. 691 (2011)
Gonzalez, Battered Immigrant Youth Take the Beat: Special Immigrant Juveniles Permitted to Age-Out of
Status, 8 Seattle J. for Soc. Just. 409 (2009)
Haralambie, Special Immigrant Juvenile Status, 31-WTR Fam. Advoc. 12 (2009)
Liebman, Keeping Promises to Immigrant Youth, 29 Pace L. Rev. 511 (2009)
Liebmann, Family Court and the Unique Needs of Children and Families Who Lack Immigration Status, 40
Colum. J.L. & Soc. Probs. 583 (2007)

Mai, Children Under the Radar: The Unique Plight of Special Immigrant Juveniles, 12 Barry L. Rev. 241
(2009)
Turano, Social Justice in the Surrogate's Courts, 25 J. Civ. Rts. & Econ. Dev. 173 (2010)
A court is not necessarily required to appoint a guardian ad litem for an infant when the infant is not a prop-
er party to an action although the infant's rights or interests may be affected by the action.[1] On the other hand,
when a legal proceeding affecting the personal or property rights of an infant is instituted and it appears to the
court that the infant is not represented by anyone fully charged with the power and duty of protecting his or her
interests, it is the duty of the court to appoint a guardian ad litem for the infant.[2]
Observation:
A guardian ad litem appointed to represent a child's interests on custody issues in a divorce proceeding is acting
as an arm of the court at all times and, thus, is entitled to quasi-judicial immunity.[3]
Practice Tip:
The parents of a child victim, who do not want the child to testify, are entitled to a hearing prior to court ap-
pointment of a guardian ad litem to compel the child's testimony and notice that they can be represented by
counsel at that hearing.[4]
[FN1] Application of Bolinder, 185 Kan. 201, 341 P.2d 1033 (1959).
[FN2] Workman v. Workman, 167 Neb. 857, 95 N.W.2d 186 (1959).
[FN3] West v. Osborne, 108 Wash. App. 764, 34 P.3d 816 (Div. 2 2001), as corrected, (Nov. 16, 2001).
[FN4] State v. Iban C., 275 Conn. 624, 881 A.2d 1005 (2005).
rights reserved.
AMJUR INFANTS § 25
END OF DOCUMENT


Infants
II. Protection
§ 26. Necessity of appointment of guardian ad litem—Restrictions
West's Key Number Digest, Infants 11.5, 17, 18, 20
The right and duty of an equity court to protect the personal and property rights of an infant is ordinarily
limited to those infants within the geographical jurisdiction of the court.[1]
Observation:
If any attempt is made by an equity court to exercise its jurisdiction over infants living outside the state, there
would necessarily be an infringement upon the equal right of the state of the infant's residence to protect and
provide for the personal and property rights of the infants within its jurisdiction.[2]
The inherent power of the equity court over minors exists only so long as it is not inconsistent with the stat-
utes and rules of the state.[3]
[FN1] Schuster v. Schuster, 75 Ariz. 20, 251 P.2d 631 (1952).
[FN2] Schuster v. Schuster, 75 Ariz. 20, 251 P.2d 631 (1952).
[FN3] Ronan v. First Nat. Bank of Ariz., 90 Ariz. 341, 367 P.2d 950 (1962).
rights reserved.
AMJUR INFANTS § 26
END OF DOCUMENT


Infants
II. Protection
§ 27. Sale of real estate
The decisions are not in agreement whether courts of equity have the inherent power to sell the real estate of
infants for any purposes. Some authorities hold that courts of equity have no such inherent power.[1] According
to other decisions, it is within the inherent and comprehensive power of a court of general equity jurisdiction to
sell the land of infants lying within its jurisdiction when such a sale is necessary.[2]
The clearest case for the exercise of such a power is when the sale is necessary to procure funds for the in-
fant's proper maintenance and education[3] although there is authority for the view that an infant's real estate
may not be sold for his or her maintenance and education when the parents are able to so provide.[4]
A court has no inherent power to sell the property of infants for the purpose of investing the proceeds in
speculative undertakings.[5]
In some jurisdictions, a guardian has no authority to sell real estate of his or her ward without an order of
court unless a statute expressly or by implication confers such power or authority on the guardian.[6]
[FN1] Williamson v. Berry, 49 U.S. 495, 8 How. 495, 12 L. Ed. 1170, 1850 WL 6852 (1850); Wadling-
ton's Guardian Ad Litem v. Wadlington's Guardian, 257 Ky. 15, 77 S.W.2d 357 (1934).
[FN2] Sangster v. Toledo Mfg. Co., 193 Ga. 685, 19 S.E.2d 723 (1942).
[FN3] U.S. to Use of Hine v. Morse, 218 U.S. 493, 31 S. Ct. 37, 54 L. Ed. 1123 (1910).
[FN4] Taylor v. Taylor's Guardian, 149 Ky. 707, 149 S.W. 1000 (1912).
[FN5] Heady v. Crouse, 203 Mo. 100, 100 S.W. 1052 (1907).
[FN6] Am. Jur. 2d, Guardian and Ward § 137.

rights reserved.
AMJUR INFANTS § 27
END OF DOCUMENT


Infants
II. Protection
§ 28. Mortgage, lease, or other disposition of real estate
A.L.R. Library
Guardian's power to make lease for infant ward beyond minority or term of guardianship, 6 A.L.R.3d 570
In some cases, it has been held that in the absence of a statute, a court cannot authorize a mortgage on an in-
fant's property.[1] However, there is also authority that a court having jurisdiction of an infant's property may
authorize a mortgage thereof.[2] When the power of a court to authorize mortgages on an infant's property is de-
rived from a statute, it can be exercised only for the purposes falling within the purview of the statute.[3]
Unless prohibited by statute, a court may, in the exercise of its inherent or statutory power to sell or mort-
gage an infant's land, exercise the lesser power of approving a lease of the property,[4] even when the lease ex-
tends beyond the infant's attaining of majority, when the lease is clearly for the best interests of the infant.[5]
The court in the exercise of chancery power stands in the relation of loco parentis to infants and may change
their estates from realty into personalty, and from personalty into realty, whenever such a proceeding is deemed
beneficial to the infant.[6]
[FN1] Stockyards Nat. Bank of South Omaha v. Bragg, 67 Utah 60, 245 P. 966 (1925).
[FN2] Coxe v. Charles Stores Co., 215 N.C. 380, 1 S.E.2d 848, 121 A.L.R. 959 (1939).
[FN3] In re Campbell's Guardianship, 1934 OK 420, 169 Okla. 47, 35 P.2d 884, 95 A.L.R. 836 (1934).
[FN4] Juden v. Houck, 241 Mo. App. 651, 231 S.W.2d 839 (1950).

rights reserved.
AMJUR INFANTS § 28
END OF DOCUMENT


Infants
II. Protection
§ 29. Other particular instances of protection
West's Key Number Digest, Infants 11.5, 18
The court in which litigation involving an infant's rights or interests is brought has power to sanction a com-
promise of the infant's claim.[1] To provide for the maintenance of infants out of their personal property and the
income of their real estate is another old and well-recognized branch of equity jurisdiction.[2]
Observation:
Maintenance may be allowed not only in cases in which the will from which the estate is derived does not au-
thorize an allowance but also in cases in which the will expressly directs an accumulation of the income.[3]
[FN1] § 140.
[FN2] Pitts v. Rhode Island Hospital Trust Co., 21 R.I. 544, 45 A. 553 (1900).
[FN3] Pitts v. Rhode Island Hospital Trust Co., 21 R.I. 544, 45 A. 553 (1900).
rights reserved.
AMJUR INFANTS § 29
END OF DOCUMENT

AMJUR INFANTS III A REF Page 1
42 Am. Jur. 2d Infants III A Refs.

Infants
III. Capacities, Disabilities, and Privileges in General

A. In General
Research References
West's Key Number Digest, Infants 2, 5 to 7, 11, 21 to 24
A.L.R. Library
West's A.L.R. Digest, Infants 2, 5 to 7, 11, 21 to 24
rights reserved.
AMJUR INFANTS III A REF
END OF DOCUMENT


Infants

A. In General
§ 30. Generally; power of State to regulate
It is the policy of the law to look after the interests of infants, who are considered incapable of looking after
their own affairs, to protect them from their own folly and improvidence and to prevent adults from taking ad-
vantage of them.[1] The disabilities of infancy are in fact personal privileges conferred on infants by law.[2]
Constitutionally, the Congress, like the state legislatures, may deny certain privileges to minors which it
grants to others,[3] but legislatures may not deny rights to one group of minors that are given to another group
of minors based on the status of their parents.[4]
N.Y.3d 861, 860 N.Y.S.2d 487, 890 N.E.2d 250 (2008).
As to the power of the State to regulate based on this interest, see § 12.
[FN3] George v. U.S., 196 F.2d 445 (9th Cir. 1952).
[FN4] S.H. v. D.H., 796 N.E.2d 1243 (Ind. Ct. App. 2003).
rights reserved.
AMJUR INFANTS § 30
END OF DOCUMENT


Infants

A. In General
§ 31. Scope of disability
A.L.R. Library
Validity, construction, and application of statutes requiring parental notification of or consent to minor's
abortion, 77 A.L.R.5th 1
Capacity of infant to act as executor or administrator, and effect of improper appointment, 8 A.L.R.3d 590
Infancy, since common-law times and most likely long before, is a legal disability, and an infant, in the ab-
sence of evidence to the contrary, is universally considered to be lacking in judgment since his or her normal
condition is that of incompetency.[1] Because of their lack of mature judgment,[2] infants are under recognized
disabilities in many respects,[3] and their activities and conduct may be regulated and restricted to a far greater
extent than those of others.[4]
N.Y.3d 861, 860 N.Y.S.2d 487, 890 N.E.2d 250 (2008).
[FN2] Matter of Lavecchia, 170 Misc. 2d 211, 650 N.Y.S.2d 955 (Sup 1996).
[FN3] Ex parte Cromwell, 232 Md. 305, 192 A.2d 775 (1963).
For the disability of an infant in relation to his or her contracts and conveyances, see §§ 39 to 115.
[FN4] Thistlewood v. Trial Magistrate for Ocean City, Worcester County, 236 Md. 548, 204 A.2d 688
(1964).
rights reserved.

AMJUR INFANTS § 31
END OF DOCUMENT


Infants

A. In General
§ 32. Progressive capacity
While a person is an infant in the eyes of the law until he or she arrives at the age of majority fixed by law,[
1] his or her actual capacity to do acts involving legal consequences and the practical necessity of doing such
acts increase from babyhood to the age of majority, and the law necessarily recognizes such a progressive capa-
city.[2] Thus, for example, an infant over a certain age may select his or her own guardian.[3]
Caution:
The rules of progressive capacity do not apply in all instances. For example, in determining whether married
minors have the capacity to execute a release and enter into a settlement agreement growing out of a personal in-
jury action, the rule that would classify married minors as more mature and intelligent than unmarried minors is
not supported by logic and common sense.[4]
Observation:
The growth of a child is gradual and the age of maturity varies with different children; consequently, it is im-
possible for any person to fix the exact time when a child is capable of protecting him or herself.[5]
[FN1] Biggins v. Gulf, C. & S.F. Ry. Co., 110 S.W. 561 (Tex. Civ. App. 1908), aff'd, 102 Tex. 417,
118 S.W. 125 (1909).
[FN2] Austin v. Collins, 200 S.W.2d 666 (Tex. Civ. App. Fort Worth 1947), writ refused n.r.e.
[FN4] Mitchell By and Through Fee v. Mitchell, 963 S.W.2d 222 (Ky. Ct. App. 1998).
As to the power of a minor to execute a release, see § 52.

[FN5] Ex parte Weber, 149 Cal. 392, 86 P. 809 (1906).
rights reserved.
AMJUR INFANTS § 32
END OF DOCUMENT


Infants

A. In General
§ 33. What law governs
The capacity of an infant is normally determined by the law of the infant's domicil.[1] However, the validity
and binding effect of an infant's contract, as affected by his or her infancy, is determined by the law of the place
where the contract was made,[2] although the state of domicil's law has been held applicable to a contract which
is both signed by the infant in that state and to be substantially performed there, even though the technical ac-
ceptance of the contract by the other party is completed in another state.[3]
The validity of an infant's deed conveying land is determined by the law of the state where the land is situ-
ated.[4]
[FN1] MacKay v. Avison, 82 N.J. Super. 92, 196 A.2d 691 (App. Div. 1964).
As to what law should govern the determination of the status of minority or majority of a person, see §
11.
As to whether a decree of a court in conformity to the statute of one state, removing the disabilities of
infancy, is to be recognized and given effect in another state, see § 9.
[FN2] Peretzman v. Borochoff, 58 Ga. App. 838, 200 S.E. 331 (1938).
[FN3] International Text-Book Co. v. Connelly, 206 N.Y. 188, 99 N.E. 722 (1912).
As to the power of an infant to contract, see §§ 39 to 115.
[FN4] Beauchamp v. Bertig, 90 Ark. 351, 119 S.W. 75 (1909).
As to the power of an infant to convey land, see § 48.

rights reserved.
AMJUR INFANTS § 33
END OF DOCUMENT

AMJUR INFANTS III B REF Page 1
42 Am. Jur. 2d Infants III B Refs.

Infants

B. Particular Disabilities, Capacities, or Privileges
Research References
West's Key Number Digest, Infants 2, 5 to 8, 11, 21 to 24, 29
A.L.R. Library
West's A.L.R. Digest, Infants 2, 5 to 8, 11, 21 to 24, 29
rights reserved.
AMJUR INFANTS III B REF
END OF DOCUMENT


Infants

§ 34. Generally
A.L.R. Library
Validity, construction, and application of statutes requiring parental notification of or consent to minor's
abortion, 77 A.L.R.5th 1
Capacity of infant to act as executor or administrator, and effect of improper appointment, 8 A.L.R.3d 590
Minors do not have the same legal rights as do adults in the legal system,[1] and under certain circum-
stances, the constitutional rights of minors may be treated differently from the rights of adults.[2] Nonetheless,
minors possess a constitutional right of privacy, at least under a state's constitution.[3]
Observation:
Minors do not have a greater right to privacy than do adults in settlement agreements for tort claims against the
State.[4]
A minor is incapable by law of managing his or her estate and financial affairs.[5] However, an infant is
capable of acquiring contractual rights as a party to a contract or as a beneficiary.[6]
[FN1] In re Stapleford, 156 N.H. 260, 931 A.2d 1199 (2007).
[FN2] State v. J.P., 907 So. 2d 1101 (Fla. 2004).
[FN3] Poway Unified School Dist. v. Superior Court (Copley Press), 62 Cal. App. 4th 1496, 73 Cal.
Rptr. 2d 777, 125 Ed. Law Rep. 165 (4th Dist. 1998).
[FN4] Pengra v. State, 2000 MT 291, 302 Mont. 276, 14 P.3d 499 (2000).

[FN5] In re Conservatorship of Chisholm, 126 N.M. 584, 1999-NMCA-025, 973 P.2d 261 (Ct. App.
1998).
[FN6] Gardner v. Denison, 217 Mass. 492, 105 N.E. 359 (1914).
rights reserved.
AMJUR INFANTS § 34
END OF DOCUMENT


Infants

§ 35. Employment and recreation
A.L.R. Library
Infant's liability for services of an employment agency, 41 A.L.R.3d 1075
Enforceability of covenant not to compete in infant's employment contract, 17 A.L.R.3d 863
Minority as a disqualification for participation in certain types of employment and the performance of cer-
tain public or social functions is recognized in the law of the United States,[1] and courts have generally upheld
minimum-age requirements for public office.[2]
An ordinance prohibiting minors under the age of 14 in billiard rooms does not unconstitutionally restrict
minors' freedom of association by interfering with the creation and cultivation of intimate human relationships
as the ordinance merely prohibits the development of such relationships in a billiard hall.[3]
[FN1] George v. U.S., 196 F.2d 445 (9th Cir. 1952).
[FN2] Am. Jur. 2d, Public Officers and Employees § 68.
[FN3] Cleveland v. Trzebuckowski, 85 Ohio St. 3d 524, 1999-Ohio-285, 709 N.E.2d 1148 (1999).
rights reserved.
AMJUR INFANTS § 35
END OF DOCUMENT


Infants

§ 36. Capacity to waive
West's Key Number Digest, Infants 2, 5 to 7, 21
According to some courts, minors may invoke and waive constitutional rights without their parents, such as
the child's right to remain silent and the right to an attorney.[1]
Observation:
In such a situation, according to these courts, a totality of the circumstances test is used to determine whether
there has been a voluntary waiver, and the circumstances include an evaluation of the minor's age, experience,
education, background, intelligence, and whether he or she has the capacity to understand his or her constitution-
al rights and the consequences of waiving them.[2]
On the other hand, some courts have declared that a child is generally incapable of waiving his or her own
rights, such as the right to refuse a warrantless search, without any instruction or guidance.[3]
Although there is authority that if an infant fails to plead infancy in an action arising from a contract or
transaction entered into by him or her, he or she is held to have waived the plea of infancy;[4] the general rule is
that an infant is not capable of waiving his or her rights.[5]
Although a minor may waive certain statutory rights with prior parental assistance and advice,[6] parental
permission does not empower a minor to waive rights that would otherwise not be within an infant's power to
waive. For example, "consent" forms which a nightclub featuring topless dancing required minors, who had re-
ceived permission from their parent or guardian to enter the nightclub, to sign before entering, as part of the
nightclub's attempt to avoid classification as an "adult establishment" under a municipal zoning resolution, are
meaningless and without legal effect because it is conclusively presumed that minors do not have the mental ca-
pacity and discretion to protect themselves from the artful designs of adults.[7]
[FN1] Attorney ad Litem for D.K. v. Parents of D.K., 780 So. 2d 301 (Fla. Dist. Ct. App. 4th Dist.
2001).

[FN2] Attorney ad Litem for D.K. v. Parents of D.K., 780 So. 2d 301 (Fla. Dist. Ct. App. 4th Dist.
2001).
[FN3] Limon v. State, 314 S.W.3d 694 (Tex. App. Corpus Christi 2010).
[FN4] § 199.
[FN5] In re Wretlind, 225 Minn. 554, 32 N.W.2d 161 (1948).
[FN6] Olson v. North Dakota Dept. of Transp. Director, 523 N.W.2d 258 (N.D. 1994).
[FN7] City of New York v. Stringfellow's of New York, Ltd., 253 A.D.2d 110, 684 N.Y.S.2d 544 (1st
Dep't 1999).
rights reserved.
AMJUR INFANTS § 36
END OF DOCUMENT


Infants

§ 37. Right to repudiate compromise or settlement
West's Key Number Digest, Infants 2, 5 to 7, 21
If a compromise or settlement of an infant's claim or cause of action is made on the infant's behalf by a third
person,[1] such as his or her parent,[2] the infant may repudiate the agreement before reaching majority or with-
in a reasonable time thereafter[3] unless it is made by a guardian with authority to do so[4] or is otherwise ap-
proved by a court.[5]
Observation:
Courts have broad discretion when conducting an infant compromise hearing,[6] and they have a considerable
amount of discretion in inquiring into the reasonableness and propriety of the settlement of an infant's cause of
action.[7]
A settlement made on behalf of an infant may of course be affirmed by the infant after reaching majority.[8]
When a settlement is made in behalf of an infant, he or she cannot convert the proceeds thereof to his or her own
use with full knowledge without having imputed a ratification of the contract of settlement, unless at the time of
the conversion, the infant is under the disabilities of minority.[9]
In an equitable suit to rescind a compromise made by a third person on behalf of an infant, when a tender of
money received is proper, it is sufficient for the plaintiff to offer, in his or her petition, to restore what he or she
has received.[10]
[FN1] § 52.
[FN3] Pacheco v. Delgardo, 46 Ariz. 401, 52 P.2d 479, 103 A.L.R. 494 (1935).
[FN4] Pacheco v. Delgardo, 46 Ariz. 401, 52 P.2d 479, 103 A.L.R. 494 (1935).

[FN5] § 140.
[FN6] Wagner & Wagner, LLP v. Atkinson, Haskins, Nellis, Brittingham, Gladd & Carwile, P.C., 596
F.3d 84 (2d Cir. 2010).
[FN7] Collura v. Collura, 18 Misc. 3d 373, 846 N.Y.S.2d 897 (Dist. Ct. 2007), aff'd, 22 Misc. 3d
134(A), 881 N.Y.S.2d 362 (App. Term 2009).
[FN8] Glover v. Patten, 165 U.S. 394, 17 S. Ct. 411, 41 L. Ed. 760 (1897).
For ratification of an infant's contract which is voidable because of infancy, see §§ 104 to 115.
[FN9] Gulf, C. & S.F. Ry. Co. v. Lemons, 109 Tex. 244, 206 S.W. 75, 5 A.L.R. 943 (1918) (the money
acquired in the settlement was used by the infant to purchase land which he thereafter mortgaged and
sold).
[FN10] Robison v. Floesch Const. Co., 291 Mo. 34, 236 S.W. 332, 20 A.L.R. 1239 (1921).
rights reserved.
AMJUR INFANTS § 37
END OF DOCUMENT


Infants

§ 38. Estoppel
The courts are not agreed as to the applicability of the doctrine of estoppel to infants. On the one hand is au-
thority that the doctrine of estoppel is not applicable to infants.[1] There is also authority that the doctrine of es-
toppel applies to infants,[2] at least when they have reached an age of discretion[3] and have done an act of in-
tentional fraud or misrepresentation.[4]
Observation:
The rule regarding estoppel as applicable to infants requires much more than is required in the case of adults; for
example, some cases hold that estoppel for mere silence or the mere failure to assert title or rights does not apply
to infants.[5]
Intervention by minors in an action seeking to have declared null and void a decree of a state court ratifying,
confirming, and approving some form of transfer of an interest in the minors' property is not barred by the doc-
trine of equitable estoppel.[6]
[FN1] Myers v. Hurley Motor Co., 273 U.S. 18, 47 S. Ct. 277, 71 L. Ed. 515, 50 A.L.R. 1181 (1927);
Nelson v. Browning, 391 S.W.2d 873 (Mo. 1965).
As to estoppel, generally, see Am. Jur. 2d, Estoppel and Waiver §§ 1 et seq.
[FN2] Adkins v. Adkins, 183 Ky. 662, 210 S.W. 462 (1919).
[FN3] Zobrist v. Bennison, 268 Ga. 245, 486 S.E.2d 815 (1997) (estoppel based on fraud and deceit).
[FN4] Fredeking v. Grimmett, 140 W. Va. 745, 86 S.E.2d 554, 50 A.L.R.2d 1346 (1955).
As to the applicability of the doctrine of estoppel to infants in connection with an infant's right to avoid

a contract, see §§ 100 to 103.
[FN5] Fredeking v. Grimmett, 140 W. Va. 745, 86 S.E.2d 554, 50 A.L.R.2d 1346 (1955).
As to estoppel by silence or failure to speak, see Am. Jur. 2d, Estoppel and Waiver § 60.
[FN6] Payne v. Consolidation Coal Co., 607 F. Supp. 378 (W.D. Va. 1985).
As to equitable estoppel, generally, see Am. Jur. 2d, Estoppel and Waiver § 27.
rights reserved.
AMJUR INFANTS § 38
END OF DOCUMENT

AMJUR INFANTS IV A REF Page 1
42 Am. Jur. 2d Infants IV A Refs.

Infants
IV. Contracts and Conveyances

A. Validity and Binding Effect
Research References
West's Key Number Digest, Infants 21, 22, 25, 26, 46, 47, 49, 50, 52
A.L.R. Library
West's A.L.R. Digest, Infants 21, 22, 25, 26, 46, 47, 49, 50, 52
Forms
Am. Jur. Legal Forms 2d §§ 144:5, 144:6, 144:12 to 144:14
Am. Jur. Pleading and Practice Forms, Infants §§ 78, 80, 82, 84
Restatement Second, Contracts § 14, Comment b
rights reserved.
AMJUR INFANTS IV A REF
END OF DOCUMENT


Infants

1. In General
a. Overview
§ 39. Generally
The prevailing rule is that in the absence of a statute to the contrary,[1] an infant's contracts[2] are voidable.
In other words, minors have the capacity to contract, at least when of sufficient age to understand what they are
doing, but in general, they have the right to repudiate their contracts.[3]
Observation:
The rule of voidability of contracts is also applicable when both parties to a contract are infants.[4]
The law considers an infant's contract a voidable one on account of its tender solicitude for his or her rights
and the fear that he or she may be imposed upon in his or her bargain.[5] Thus, the purpose of the infancy doc-
trine is to protect minors from foolishly squandering their wealth through improvident contracts made with
crafty adults who would take advantage of them in the marketplace.[6]
Comment:
According to the Restatement Second, Contracts, infants' contracts were at one time classified as void, voidable,
or valid, but the modern rule in the absence of statute is that they are voidable by the infant. An infant may be
bound by obligations imposed by law independently of contract such as tort and quasi-contractual obligations.[7
]
[FN1] §§ 46, 47.
[FN2] Hoblyn v. Johnson, 2002 WY 152, 55 P.3d 1219 (Wyo. 2002).

[FN4] Hurwitz v. Barr, 193 A.2d 360 (D.C. 1963).
[FN5] Creech ex rel. Creech v. Melnik, 147 N.C. App. 471, 556 S.E.2d 587 (2001).
[FN6] Hauer v. Union State Bank of Wautoma, 192 Wis. 2d 576, 532 N.W.2d 456, 27 U.C.C. Rep.
Serv. 2d 1142 (Ct. App. 1995).
As to the protection of minors, generally, see §§ 12 to 29.
[FN7] Restatement Second, Contracts § 14, Comment b.
rights reserved.
AMJUR INFANTS § 39
END OF DOCUMENT


Infants

1. In General
a. Overview
§ 40. When minor and adult are coparties; approval or ratification by parent or guardian
West's Key Number Digest, Infants 25, 26, 46, 47
As a general rule, a guardian, including a parent, cannot contractually bind his or her minor ward,[1] and
this is true if the contract was made with the approval of his or her parent,[2] was approved and ratified by his or
her guardian,[3] was made with his or her spouse, who was of age,[4] or was made with any of his or her adult
relatives.[5]
Observation:
A guardian may contractually bind his or her minor ward if he or she is acting under the direction of the court.[6
]
[FN1] Woodman ex rel. Woodman v. Kera LLC, 486 Mich. 228, 785 N.W.2d 1 (2010).
[FN2] Bombardier v. Goodrich, 94 Vt. 208, 110 A. 11, 9 A.L.R. 1028 (1920).
[FN3] Reynolds v. Garber-Buick Co., 183 Mich. 157, 149 N.W. 985 (1914).
[FN4] McBriety v. Spear, 191 Md. 221, 60 A.2d 528 (1948).
[FN5] Bowling v. Sperry, 133 Ind. App. 692, 184 N.E.2d 901 (1962) (aunt and grandmother).
rights reserved.
AMJUR INFANTS § 40

END OF DOCUMENT


Infants

1. In General
a. Overview
§ 41. Contracts or transactions in fulfillment of legal duty
If an infant executes a deed or a contract which it is his or her legal duty to execute, and which he or she can
be compelled to execute by suit at law or in equity, it is absolutely binding upon him or her.[1] For example, a
note given by a minor in settlement of a liability in tort is enforceable against the minor.[2] Similarly, since
taxes against an infant's property are an obligation by law, if an infant makes a contract to borrow money to pay
the tax on his or her property or executes a mortgage to obtain money for the payment of the tax, that contract or
mortgage is binding.[3]
[FN1] Irvine v. Irvine, 76 U.S. 617, 19 L. Ed. 800, 1869 WL 11529 (1869); Swoboda v. Nowak, 213
Mo. App. 452, 255 S.W. 1079 (1923).
[FN2] Swoboda v. Nowak, 213 Mo. App. 452, 255 S.W. 1079 (1923).
[FN3] Wiggins Estate Co. v. Jeffery, 246 Ala. 183, 19 So. 2d 769 (1944).
As to whether payment of taxes constitutes a "necessity," see § 67.
rights reserved.
AMJUR INFANTS § 41
END OF DOCUMENT


Infants

1. In General
b. Effect of Voidable Contracts or Conveyances
§ 42. Generally
The most apparent effect of an infant's contract or transaction which is voidable is that such contract or
transaction is subject to avoidance[1] or ratification[2] by the infant. If the infant elects to enforce a contract
entered into while an infant, it is binding on the other party,[3] and for a breach of the contract by the other
party, the infant has a right of action.[4]
Observation:
A minor's exemption from contractual liability is a personal privilege which others may not assert as a defense.[
5]
Cases:
While the infant may avoid his or her obligations, the adult party to a contract cannot avoid it on the ground
that an infant's promise or conveyance is voidable. I.B. ex rel. Fife v. Facebook, Inc., 905 F. Supp. 2d 989 (N.D.
Cal. 2012).
[END OF SUPPLEMENT]
[FN1] §§ 74 to 103.
[FN2] §§ 104 to 115.

[FN4] Huish v. Lopez, 70 Ariz. 201, 218 P.2d 727 (1950).
[FN5] Grange Mut. Cas. Co. v. Kay, 264 Ga. App. 139, 589 S.E.2d 711 (2003).
rights reserved.
AMJUR INFANTS § 42
END OF DOCUMENT


Infants

1. In General
§ 43. Effect of assertion of contract by infant
An infant who asserts contractual rights is bound by reciprocal obligations.[1] An infant is not entitled to
the enforcement of his or her contractual rights without complying with the conditions attached to the duty of
the other party,[2] and the general rule is that an infant cannot maintain an action for specific performance for
the reason that mutuality is lacking.[3] Accordingly, because the law implies that a contract for the purchase and
sale of real estate shall be performed within a reasonable time, a minor cannot require the other contracting party
to stand seised and ready to convey until he or she attains his or her majority.[4]
Observation:
The general rule that one seeking to recover damages for the breach of a contract must show performance or an
offer to perform on his or her part and an ability to make such offer good if it should be accepted is peculiarly
applicable when the party seeking redress is a minor, and therefore, the contract is voidable on his or her part at
his or her election.[5]
[FN1] Parks v. Lyons, 219 S.C. 40, 64 S.E.2d 123 (1951).
[FN2] Bracy v. Miller, 169 Ark. 1115, 278 S.W. 41, 43 A.L.R. 114 (1925).
[FN3] Am. Jur. 2d, Specific Performance § 197.
[FN4] Bracy v. Miller, 169 Ark. 1115, 278 S.W. 41, 43 A.L.R. 114 (1925).

rights reserved.
AMJUR INFANTS § 43
END OF DOCUMENT


Infants

1. In General
§ 44. Valid until avoided or invalid until ratified
A.L.R. Library
Failure to disaffirm as ratification of infant's executory contract, 5 A.L.R.2d 7
While the rule that contracts of an infant are voidable[1] is applicable to both executed and executory con-
tracts,[2] some authorities give the term "voidable" different meanings as between the executory contracts and
the executed contracts of an infant, saying that an infant's executed contract is binding until avoided, but that his
or her executory contract may not be enforced against him or her until ratified.[3] In some cases, however, this
view that an infant's executory contract is invalid until confirmed has been criticized in favor of the view that an
infant's executory and executed voidable agreements are valid until avoided.[4]
[FN1] § 39.
[FN2] H & S Homes, L.L.C. v. McDonald, 823 So. 2d 627 (Ala. 2001).
[FN3] Cassella v. Tiberio, 150 Ohio St. 27, 37 Ohio Op. 320, 80 N.E.2d 426, 5 A.L.R.2d 1 (1948).
As to ratification by the infant generally, see § 104.
[FN4] Walker v. Stokes Bros. & Co., 262 S.W. 158 (Tex. Civ. App. Austin 1924).
rights reserved.
AMJUR INFANTS § 44

END OF DOCUMENT


Infants

1. In General
§ 45. Transfer of title
When an infant transfers real[1] or personal[2] property, the title to the property is also transferred. The
same is true when property is transferred to an infant.[3]
When a person has purchased property of an infant under a voidable contract, no tort is committed by that
person in dealing with the property until after the infant's avoidance of the sale.[4]
[FN1] Holcomb v. Pressley, 301 Mo. 208, 255 S.W. 1062 (1923).
[FN2] Lakey v. Caldwell, 72 Idaho 52, 237 P.2d 610 (1951).
[FN3] Drumhiller v. Norick Motor Co., 1930 OK 106, 144 Okla. 174, 289 P. 698, 69 A.L.R. 1368
(1930).
[FN4] Joseph v. Schatzkin, 259 N.Y. 241, 181 N.E. 464, 83 A.L.R. 910 (1932).
As to the liability of the purchaser of an infant's property for his or her failure to return the property
after avoidance of the sale, see § 98.
rights reserved.
AMJUR INFANTS § 45
END OF DOCUMENT


Infants

2. Statutory Provisions
§ 46. Generally
Several states statutorily recognize the rule that generally an infant's contracts are voidable[1] by providing
that an infant's contracts, except those for necessaries, are voidable,[2] or that the contracts made by an infant,
with certain exceptions, may be disaffirmed by the infant, either before his or her majority[3] or within a reason-
able time after he or she attains his or her majority.[4]
Observation:
The effect of a statute providing that the infant may disaffirm before reaching majority is that an infant has no
capacity to bind himself or herself absolutely by a contract and is not bound thereby if he or she elects to rescind
it.[5] Under statutes allowing the infant to disavow after reaching majority, an infant is capable of making con-
tracts, and those contracts, until avoided by disaffirmance, are binding as contracts nevertheless.[6]
According to the Restatement Second, Contracts, there are several exceptions to the modern rule that con-
tracts are voidable by the infant. Thus, an infant may be bound by obligations imposed by law independently of
contract, such as tort and quasi-contractual obligations; in addition, certain contracts are held binding, ordinarily
by statute, such as recognizances for appearance in court or contracts made with judicial approval, and modern
statutes also sometimes deny the power of disaffirmance as to such transactions as the withdrawal of bank de-
posits or payment of life insurance premiums.[7]
In some jurisdictions, it is provided by statute that a minor under the age of 18 years cannot make a contract
relating to real property or any interest therein or relating to personal property not in his or her immediate pos-
session or control.[8] Under such a statute, a contract relating to real property or any interest therein, or personal
property not in his or her immediate possession or control, entered into by a minor under the age of 18 years, is
void and requires no act of disaffirmance.[9]

[FN1] § 39.
[FN2] Ware v. Mobley, 190 Ga. 249, 9 S.E.2d 67 (1940).
[FN3] Berg v. Traylor, 148 Cal. App. 4th 809, 56 Cal. Rptr. 3d 140 (2d Dist. 2007).
[FN6] Paulson v. McMillan, 8 Wash. 2d 295, 111 P.2d 983 (1941).
[FN7] Restatement Second, Contracts § 14, Comment b.
[FN8] Hakes Inv. Co. v. Lyons, 166 Cal. 557, 137 P. 911 (1913).
[FN9] Burnand v. Irigoyen, 30 Cal. 2d 861, 186 P.2d 417 (1947).
rights reserved.
AMJUR INFANTS § 46
END OF DOCUMENT


Infants

2. Statutory Provisions
§ 47. Contracts authorized by statute
In the absence of an express constitutional restriction the legislature may relieve minors of the disability of
minority for the purpose of making contracts.[1] Similarly, the legislature may endow minors with the right to
make contracts that are otherwise lawful.[2]
When a statute expressly permits a certain class of agreements to be made by infants, that settles the ques-
tion and makes the agreement valid and enforceable.[3] Thus, a statute allowing a minor veteran or the minor
spouse of a veteran to make contracts in connection with servicemen's benefits,[4] or a statute giving a minor
employee the same power to contract as an adult employee for the purposes of the law of workers' compensa-
tion,[5] has been upheld as valid against an attack on constitutional grounds.
If a statute expressly permits infants, or a certain class of infants, to enter into a certain type of agreement,
an agreement made pursuant thereto is absolutely valid and is not subject to avoidance.[6]
Observation:
Once the legislature endows minors with the right to make contracts otherwise lawful, they become adults for
the purpose of the statute.[7]
[FN2] Garrett v. Gay, 394 So. 2d 321 (Miss. 1981).
[FN3] Shields v. Gross, 58 N.Y.2d 338, 461 N.Y.S.2d 254, 448 N.E.2d 108 (1983).
[FN4] Tennessee Title Co. v. First Federal Sav. & Loan Ass'n of Nashville, Tenn., 185 Tenn. 145, 203
S.W.2d 697 (1947).

[FN5] Wall v. Studebaker Corp., 219 Mich. 434, 189 N.W. 58 (1922).
[FN7] Borgnis v. Falk Co., 147 Wis. 327, 133 N.W. 209 (1911).
rights reserved.
AMJUR INFANTS § 47
END OF DOCUMENT


Infants

3. Disability as to Particular Types of Contracts or Transactions
a. Business and Property Transactions
§ 48. Generally; real property
A deed executed by an infant is voidable and not void.[1]
A mortgage of real estate by an infant is voidable.[2] Likewise, a lease to an infant is voidable.[3]
An agreement by an infant to buy or sell real estate, whether executory or executed, is voidable.[4] Likewise
held voidable is a written option for the purchase of land, executed and delivered to an infant.[5]
[FN1] Shepherd v. Shepherd, 408 Ill. 364, 97 N.E.2d 273 (1951).
[FN2] U.S. Inv. Co. v. Ulrickson, 84 Minn. 14, 86 N.W. 613 (1901).
[FN3] Ex parte McFerren, 184 Ala. 223, 63 So. 159 (1913).
rights reserved.
AMJUR INFANTS § 48
END OF DOCUMENT


Infants

§ 49. Personal property
Juveniles are entitled to acquire and hold personal property.[1] Thus, an infant's agreements relating to per-
sonal property are ordinarily voidable, whether they are for the purchase of another's personal property,[2] or for
the sale or exchange of his or her own personal property[3] or the mortgage thereof.[4]
In some jurisdictions, by statute a minor under the age of 18 years cannot make a contract relating to per-
sonal property not in his or her immediate possession or control, and such a contract, if made, is void and re-
quires no act of disaffirmance.[5] In others, a statute authorizing persons 18 years of age or older to enter into
binding contractual relationships affecting personal property removes the disability of minority of all persons 18
years of age or older for that purpose.[6]
[FN2] Wuller v. Chuse Grocery Co., 241 Ill. 398, 89 N.E. 796 (1909).
[FN3] Casey v. Kastel, 237 N.Y. 305, 142 N.E. 671, 31 A.L.R. 995 (1924).
(1930).
[FN5] § 46.
rights reserved.

AMJUR INFANTS § 49
END OF DOCUMENT


Infants

§ 50. Personal property—Transactions relating to stocks and other securities; negotiable instruments
An infant's agreement for the sale or purchase of corporate stock is voidable.[1] Likewise voidable is an in-
fant's contract with a stockbroker relating to the purchase and sale of stock.[2]
Bills or notes executed, indorsed, or assigned by an infant are voidable.[3]
[FN1] Mellott v. Love, 152 Miss. 860, 119 So. 913, 64 A.L.R. 968 (1929).
[FN3] Bancredit, Inc. v. Bethea, 65 N.J. Super. 538, 168 A.2d 250 (App. Div. 1961), adhered to on
reh'g, 68 N.J. Super. 62, 172 A.2d 10 (App. Div. 1961).
rights reserved.
AMJUR INFANTS § 50
END OF DOCUMENT


Infants

§ 51. Partnership; joint venture
An infant may become a partner in a business, and such a contract of partnership is not void but voidable.[1]
As a result, a partnership of which an infant is a member continues in all respects to be valid until he or she
withdraws from the firm or otherwise disaffirms his or her contract of partnership.[2]
Caution:
By statute, in some states, a delegation by a partner to the other partners is required for a partnership; thus, a
minor cannot legally be a partner since a minor cannot delegate power.[3]
As a general rule, a contract made by a partnership with a third person cannot be avoided by that third per-
son because a member of the firm is an infant.[4] The infant partner, however, can disaffirm the contract to the
extent that he or she will not be held personally liable.[5]
An infant can be a party to a joint venture although the contract creating that relation can be disaffirmed at
his or her election.[6]
Observation:
It has been said that the courts have always been very vigilant to protect the infant from liabilities resulting from
a business venture with an adult and that when an adult, learning of the minority of the other party, enters into a
business venture with him or her, it is of utmost importance to protect the infant against imposition and from er-
rors of his or her own judgment arising because of his or her lack of experience.[7]
[FN1] Sacco v. Schallus, 11 N.J. Super. 197, 78 A.2d 143 (Ch. Div. 1950).

[FN2] Jennings v. William A. Stannus & Son, 191 F. 347 (C.C.A. 9th Cir. 1911).
[FN3] Blankenship v. Hearst Corp., 519 F.2d 418 (9th Cir. 1975) (applying California law).
[FN4] Kuehl v. Means, 206 Iowa 539, 218 N.W. 907, 58 A.L.R. 1359 (1928).
[FN5] Crew-Levick Co. v. Hull, 125 Md. 6, 93 A. 208 (1915).
[FN6] Paulson v. McMillan, 8 Wash. 2d 295, 111 P.2d 983 (1941).
rights reserved.
AMJUR INFANTS § 51
END OF DOCUMENT


Infants

§ 52. Settlements, releases, or other discharges
Agreements of discharge made by infants, such as a compromise,[1] a release of a claim upon a contract[2]
or for a tort,[3] or a release of a claim to an interest in an estate,[4] are voidable and subject to disaffirmance.
Likewise held voidable is a family settlement to which an infant is a party.[5] In fact, a parent has no legal right,
by virtue of the parental relationship, to settle a minor's cause of action, and court review and approval of a set-
tlement reached by a parent is mandatory.[6]
Observation:
When considering whether a particular personal injury settlement for an infant should be approved, courts are
bound to protect infants, who are their wards,[7] and should evaluate whether the infant's interests have been
properly protected.[8]
Caution:
A statute authorizing all persons 18 years of age or older to enter into binding contractual relationships affecting
personal property removes the disability of minority of all persons 18 years of age or older for the purpose of en-
tering into a contract affecting personal property, including the right to settle a claim for personal injuries, to ex-
ecute a contract settling the claim, and to accept money in settlement of the claim.[9]
Even when a jurisdiction may not deem a release void ab initio, that is, void from its inception, a court must
look closely into contracts and settlements materially affecting the rights of infants.[10]
[FN1] Smoky, Inc. v. McCray, 196 Ga. App. 650, 396 S.E.2d 794 (1990).
[FN2] Harding v. Skolfield, 125 Me. 438, 134 A. 567 (1926).

[FN3] Dilallo By and Through Dilallo v. Riding Safely, Inc., 687 So. 2d 353 (Fla. Dist. Ct. App. 4th
Dist. 1997).
In an action to recover damages for personal injuries sustained during a kick-boxing class, a 14-year-old
student was not bound by the purported release he signed exculpating the martial arts academy from li-
ability; as an infant, the student lacked the capacity to enter into an agreement which would release the
academy from liability for the cause of action to recover damages for personal injuries. Franco v.
Neglia, 3 Misc. 3d 15, 776 N.Y.S.2d 690 (App. Term 2004).
[FN4] Adams v. Adams, 82 W. Va. 244, 95 S.E. 859 (1918).
[FN5] Smith v. Williams, 141 S.C. 265, 139 S.E. 625, 54 A.L.R. 964 (1927) (infant's agreement for the
use of land by his mother).
[FN6] Villalobos v. Cicero School Dist. 99, 362 Ill. App. 3d 704, 298 Ill. Dec. 944, 841 N.E.2d 87 (1st
Dist. 2005).
[FN7] Roman ex rel. Roman v. Bermudes, 15 Misc. 3d 321, 832 N.Y.S.2d 770 (Sup 2007).
[FN8] Doe v. Texas Ass'n of School Boards, Inc., 283 S.W.3d 451, 245 Ed. Law Rep. 512 (Tex. App.
Fort Worth 2009), reh'g overruled, (May 7, 2009) and review denied, (Sept. 25, 2009).
[FN10] Hunter v. Newsom, 121 N.C. App. 564, 468 S.E.2d 802 (1996).
rights reserved.
AMJUR INFANTS § 52
END OF DOCUMENT


Infants

§ 53. Miscellaneous debts or obligations
That an individual is an infant may not in and of itself prohibit him or her from contracting for insurance.[1]
Consequently, a minor who is not less than 15 years of age may be competent to exercise his or her rights to
enter into an insurance contract and to waive uninsured motorist coverage.[2]
In some jurisdictions, when an infant is used in a sham transaction under which the infant receives no con-
trol over the money loaned, a promissory note signed by the infant is void and not merely voidable.[3] However,
in other jurisdictions, an infant's contract to repay money borrowed by him or her is voidable.[4]
Observation:
Although a note or contract of a minor may be voidable, the minor's power of attorney to confess judgment is
void, and a judgment entered thereon is wholly void.[5]
A bond executed by an infant is voidable.[6]
An infant is not liable for the funeral expenses of his indigent parent even though he visited the undertaker
and made all the arrangements for the funeral and agreed to pay therefor.[7]
[FN1] Buffington v. State Auto. Mut. Ins. Co., 192 Ga. App. 389, 384 S.E.2d 873 (1989).
[FN2] Midwest Mut. Ins. Co. v. Wireman, 54 S.W.3d 177 (Ky. Ct. App. 2001).
[FN3] Moran v. Williston Co-op. Credit Union, 420 N.W.2d 353 (N.D. 1988).
[FN4] Deville v. Federal Sav. Bank of Evangeline Parish, 635 So. 2d 195 (La. 1994), on reh'g, (June 3,

1994).
[FN5] Terrace Co. v. Calhoun, 37 Ill. App. 3d 757, 347 N.E.2d 315 (1st Dist. 1976).
[FN6] King v. Cordrey, 36 Del. 418, 177 A. 303 (Super. Ct. 1935).
[FN7] In re O'Leary's Estate, 352 Pa. 254, 42 A.2d 624 (1945) (funeral for father).
rights reserved.
AMJUR INFANTS § 53
END OF DOCUMENT


Infants

b. Contracts for Labor or Services
§ 54. Generally
A.L.R. Library
Infant's liability for services of an employment agency, 41 A.L.R.3d 1075
Enforceability of covenant not to compete in infant's employment contract, 17 A.L.R.3d 863
Validity, construction, and effect of court's approval of contract for minor's services, 3 A.L.R.2d 702
Although some courts have declared that the state's child labor laws reflect a legislative policy that certain
minors do not have an absolute right to disaffirm their employment contracts,[1] the general rule is that a con-
tract of an infant for his or her performance of labor or personal services is voidable at his or her election.[2] If
the infant wishes, the infant may refuse to perform such a contract upon the ground that he or she is an infant.[3]
When the infant wishes to perform his or her part of the contract, but the other party breaches it, a right of action
upon the contract arises in favor of the infant.[4]
An infant's employment contract cannot be treated as a contract for necessaries even though the employer
has agreed to furnish the infant board, lodging, traveling expenses, and medical care as part payment for his or
her services to be rendered.[5]
When a statute provides that a contract for a minor's services cannot be disaffirmed when it has been ap-
proved by a court, the statute, of course, controls.[6]
[FN1] Douglass v. Pflueger Hawaii, Inc., 110 Haw. 520, 135 P.3d 129 (2006), as corrected, (May 30,
2006).

[FN2] Pankas v. Bell, 413 Pa. 494, 198 A.2d 312, 17 A.L.R.3d 855 (1964).
[FN3] Cain v. Garner, 169 Ky. 633, 185 S.W. 122 (1916).
[FN4] Humphrees v. Boxley Bros. Co., 146 Va. 91, 135 S.E. 890, 49 A.L.R. 1427 (1926).
[FN5] Bensinger's Coex'rs v. West, 255 S.W.2d 27 (Ky. 1953).
[FN6] Warner Bros. Pictures v. Brodel, 31 Cal. 2d 766, 192 P.2d 949, 3 A.L.R.2d 691 (1948).
rights reserved.
AMJUR INFANTS § 54
END OF DOCUMENT


Infants

§ 55. Sports or entertainment services
Forms
Am. Jur. Legal Forms 2d § 144:14 (Contract of minor—Provision—Approval of court required for employ-
ment of minor as athlete or entertainer)
Am. Jur. Pleading and Practice Forms, Infants § 84 (Petition or application—For court approval of minor's
contract for labor, professional, or athletic services—By employment agency)
A statute withdrawing the right of disaffirmance from minors, with regard to contracts to render profession-
al services in the field of entertainment or sports, when those contracts have been approved by a court, do not vi-
olate the Equal Protection Clause of the 14th Amendment or of a state constitutional provision against special le-
gislation.[1]
Some states take a preemptive approach, by statutorily establishing a detailed procedure for the review of
performing contracts entered into by infants, to bestow upon the infant an advantage of which he or she would
otherwise be deprived by law, i.e., the ability to be bound by a contract; the goal of such a statute is to permit the
party contracting with an infant to be as confident of the survival of the contract as if the infant had reached ma-
jority and thereby encourage the parties to enter into contracts beneficial to an infant which they would other-
wise forego because of the uncertainty of avoidability.[2] Stated another way, such procedures seek to provide a
degree of certainty for parties contracting with infants so that the validity of such contracts will not be rendered
doubtful or subject to subsequent litigation concerning reasonableness and to completely eliminate the power to
disaffirm under certain circumstances.[3]

[FN2] Matter of Twentieth Century Fox Film Corp., 190 A.D.2d 483, 601 N.Y.S.2d 267 (1st Dep't
1993).
[FN3] In re Applications of Atlantic Recording Corp., 192 Misc. 2d 622, 747 N.Y.S.2d 889 (Sup 2002).
rights reserved.
AMJUR INFANTS § 55
END OF DOCUMENT


Infants

§ 56. Employment of others by infant
An infant's disability to enter into employment agreements may be a two-edged sword when the disability
nullifies the contract as the infant may be precluded from employing others. For example, an infant cannot ap-
pear by an attorney of the infant's choice, as the infant's employment of an attorney would be voidable,[1] as a
minor does not have the legal capacity to employ an attorney[2] or anyone else to watch over his or her in-
terests.[3]
Observation:
The inherent power that courts have to protect minor children and their property extends to contracts with
minors for legal services.[4]
There are, however, limited exceptions; for example, a minor may be responsible for his or her own medical
expenses.[5] On the other hand, in some jurisdictions, an unemancipated minor in the custody of his or her par-
ent has no responsibility for satisfying hospital charges.[6]
As a general proposition, however, parental consent is required for the provision of services to minors for
the simple reason that minors may disaffirm their own contracts to acquire such services.[7]
[FN1] Miller v. Miller, 677 A.2d 64 (Me. 1996).
[FN2] Bellevue School Dist. v. E.S., 148 Wash. App. 205, 199 P.3d 1010, 240 Ed. Law Rep. 925 (Div.
1 2009), review granted, 166 Wash. 2d 1011, 210 P.3d 1018 (2009).
[FN3] Byrd v. Woodruff, 891 S.W.2d 689 (Tex. App. Dallas 1994), writ denied, (May 4, 1995) and writ
withdrawn, (Sept. 28, 1995) and writ dismissed by agreement, (Sept. 28, 1995).

[FN4] Wilson v. Griffiths, 811 So. 2d 709 (Fla. Dist. Ct. App. 5th Dist. 2002).
[FN5] State ex rel. Packard v. Perry, 221 W. Va. 526, 655 S.E.2d 548 (2007).
[FN6] Quaid v. U.S. Healthcare, Inc., 2007 UT 27, 158 P.3d 525 (Utah 2007) (applying New York law)
.
rights reserved.
AMJUR INFANTS § 56
END OF DOCUMENT


Infants

4. Exception from Disability for Liability for Necessaries
a. In General
§ 57. Generally
Forms
Am. Jur. Legal Forms 2d §§ 144:12, 144:13 (Contract of minor—Purchase of necessaries)
It is well established that an infant is liable for the value of the necessaries furnished to him or her[1] even
though he or she is too young to understand the contract for such necessaries.[2]
Observation:
An infant's liability for necessaries is based not upon his or her express contract to pay for them, but upon a con-
tract implied by law,[3] or in other words, a quasi-contract.[4]
When an infant's contract for necessaries remains executory and the things contracted for have not been fur-
nished to him or her, the infant is not bound by the contract and may repudiate it.[5]
[FN1] H & S Homes, L.L.C. v. McDonald, 823 So. 2d 627 (Ala. 2001); Schmidt v. Prince George's
Hosp., 366 Md. 535, 784 A.2d 1112 (2001); State ex rel. Packard v. Perry, 221 W. Va. 526, 655 S.E.2d
548 (2007).
[FN2] Santasiero v. Briggs, 278 A.D. 15, 103 N.Y.S.2d 1 (3d Dep't 1951).
[FN4] Webster Street Partnership, Ltd. v. Sheridan, 220 Neb. 9, 368 N.W.2d 439 (1985).
[FN5] Peacock Military College v. Hughes, 225 S.W. 221 (Tex. Civ. App. San Antonio 1920).

rights reserved.
AMJUR INFANTS § 57
END OF DOCUMENT


Infants

a. In General
§ 58. Statutory provisions
In some states, it is provided by statute that a minor is bound by his or her contract for necessaries,[1] or
that a minor cannot disaffirm a contract, otherwise valid, to pay the reasonable value of things necessary for his
or her support or that of his or her family, entered into by him or her when he or she is not under the care of a
parent or guardian able to provide for him or her provided that the necessaries have actually been furnished to
him or her or to his or her family.[2]
Observation:
A statute providing that a minor is bound by his or her contract for necessaries is simply declaratory of the com-
mon law and must be held to intend nothing more than that an infant is bound for necessaries actually furnished
to him or her.[3]
[FN1] Wilson v. Knight, 26 Kan. App. 2d 226, 982 P.2d 400 (1999).
[FN3] Wallin v. Highland Park Co., 127 Iowa 131, 102 N.W. 839 (1905).
rights reserved.
AMJUR INFANTS § 58
END OF DOCUMENT


Infants

a. In General
§ 59. Extent of liability
Forms
Am. Jur. Pleading and Practice Forms, Infants § 78 (Answer—Defense—Disaffirmance of executory con-
tract for necessaries)
An infant's liability is, as a rule, limited to the reasonable value of the necessaries furnished.[1] When the
infant has entered into a contract, he or she is not liable for the amount agreed to in the contract if that amount is
more than the value of the necessaries furnished.[2]
The quantity, quality, and reasonable value of the necessaries are matters of fact[3] to be determined by the
jury.[4]
Observation:
The doctrine that a minor is bound by his or her contracts for necessaries does not conflict with the recognized
rule of law that the parents of an unemancipated child are ordinarily the real parties in interest entitled to main-
tain an action for the recovery of the child's medical expenses.[5]
[FN1] Williams v. Baptist Health Systems, Inc., 857 So. 2d 149 (Ala. Civ. App. 2003).
Quantum meruit is the measure of any award when a court has found an implied contract by application
of the necessaries doctrine to a minor's contract. Zelnick v. Adams, 263 Va. 601, 561 S.E.2d 711 (2002)
.
[FN2] Ragan v. Williams, 220 Ala. 590, 127 So. 190, 68 A.L.R. 1182 (1930).

[FN3] Bowling v. Sperry, 133 Ind. App. 692, 184 N.E.2d 901 (1962).
[FN5] Wilson v. Knight, 26 Kan. App. 2d 226, 982 P.2d 400 (1999).
rights reserved.
AMJUR INFANTS § 59
END OF DOCUMENT


Infants

b. What are Necessaries
(1) In General
§ 60. Generally
Forms
Am. Jur. Pleading and Practice Forms, Infants § 80 (Reply—Allegation—Goods furnished infant were ne-
cessaries)
Am. Jur. Pleading and Practice Forms, Infants § 82 (Instruction to jury—Definition—Necessaries)
According to some courts, just what are necessaries has no exact definition.[1] According to others,
however, a "necessity," for purposes of a contract is something necessary to the position and condition of the
minor.[2] In any case, the term "necessaries" is flexible.[3] In determining what are necessaries, a trier of fact
must examine all the circumstances.[4] Thus, it depends on many things, including the particular circumstances
of the minor, the actual need, and the use to which the purchased article is to be put.[5]
Caution:
An infant's misrepresentation of his or her age in a transaction, however, is not a factor considered in determin-
ing whether the thing furnished in the transaction is a necessary.[6]
That an infant has been emancipated has been considered as a factor of practical importance in determining
whether a transaction made by him or her is to be deemed one for necessaries.[7]
[FN2] Young v. Weaver, 883 So. 2d 234 (Ala. Civ. App. 2003).

[FN6] Mitchell v. Campbell and Fetter Bank, 135 Ind. App. 523, 195 N.E.2d 489 (1964).
rights reserved.
AMJUR INFANTS § 60
END OF DOCUMENT


Infants

(1) In General
§ 61. Requirement of actual need
To be bound upon a contract for necessaries, an infant must be in actual need of the items.[1] Thus, whether
a certain article qualifies as a necessary depends not only on the nature of the article but also on the actual need
for that article by the infant at the time he or she receives delivery.[2] "Actual need" means that the particular in-
fant must have an actual need for the articles furnished, not for mere ornament or pleasure; the articles must sup-
ply the infant's personal needs, either those of his or her body or those of his or her mind, although the term is
not confined to things as are required for a bare subsistence but are those requisite for the maintenance of one's
existence.[3]
Observation:
Articles are not necessaries to an infant, however necessary they may be in their nature, if he or she is already
supplied with sufficient articles of the kind.[4]
[FN2] In re Johnstone's Estate, 64 Ill. App. 2d 447, 212 N.E.2d 143 (1st Dist. 1965).
rights reserved.

AMJUR INFANTS § 61
END OF DOCUMENT


Infants

(1) In General
§ 62. Requirement that necessaries be furnished to infant for infant's use; business items
An infant is liable for necessaries furnished only if they are furnished on the infant's credit and not on the
credit of another.[1] To be held liable for necessaries, an infant must be obliged to procure the things in question
for himself or herself.[2]
The necessaries for which an infant is bound must be personal necessities,[3] including those needed for the
support of his or her spouse and children.[4]
Observation:
The term "necessaries" does not include articles purchased for business purposes even though the infant earns a
living by the use of them and has no other means of support.[5] However, in some cases, the courts have held
that articles needed by an infant for business purposes to earn a living are necessaries.[6]
[FN1] Estate of Hammond v. Aetna Cas. (Aetna Life & Cas. Co.), 141 Ill. App. 3d 963, 96 Ill. Dec.
270, 491 N.E.2d 84 (1st Dist. 1986).
As to the liability of an infant, under the theory of necessaries, to one who has advanced money to him
or her to be used for necessaries, or to discharge his or her debt for necessaries, see § 73.
[FN3] Covault v. Nevitt, 157 Wis. 113, 146 N.W. 1115 (1914).

[FN5] Russell v. Buck, 116 Vt. 40, 68 A.2d 691 (1949).
1994).
rights reserved.
AMJUR INFANTS § 62
END OF DOCUMENT


Infants

(1) In General
§ 63. Effect of other sources of the goods
A.L.R. Library
Responsibility of noncustodial divorced parent to pay for, or contribute to, costs of child's college educa-
tion, 99 A.L.R.3d 322
To be held liable for necessaries, an infant must not have at the time of delivery an adequate supply from
other sources[1] such as a parent or guardian who is able and willing to supply them.[2] When the parent cannot
or will not furnish necessaries,[3] the infant is liable for necessaries furnished to him or her.[4]
Observation:
A child living with his or her parents cannot be held liable for necessaries unless it is proven that the parent was
unable or unwilling to furnish the child with such clothes, etc., as the parent considers necessary.[5]
[FN2] Garay v. Overholtzer, 332 Md. 339, 631 A.2d 429 (1993).
Minor tenant's apartment was not a necessity to her, and thus, she was not legally bound by the lease;
tenant had a place to live provided by her parents still available to her at the time she signed the lease
agreement and during the time she lived in the apartment. Young v. Weaver, 883 So. 2d 234 (Ala. Civ.
App. 2003).
[FN3] In re Estate of Reed, 201 P.3d 1264 (Colo. App. 2008).

[FN4] Schmidt v. Prince George's Hosp., 366 Md. 535, 784 A.2d 1112 (2001).
For an infant's liability for medical and dental services when his or her parent or guardian is unable to
provide such services, see § 70.
[FN5] Rhodes, Inc. v. Morrow, 937 F. Supp. 1202 (M.D. N.C. 1996) (applying North Carolina law).
rights reserved.
AMJUR INFANTS § 63
END OF DOCUMENT


Infants

(1) In General
§ 64. Effect of social position; living circumstances
Aside from those things obviously required for the maintenance of existence, that is, things that are neces-
sary to a minor's subsistence and comfort, necessaries include those things that enable a minor to live according
to his or her real position in society or his or her circumstances.[1] Relevant considerations include the customs
of the social circle in which he or she moves or is likely to move, and the fortune possessed by him or her and by
his or her parents.[2] It has been said that articles of mere luxury or adornment are not included but that useful
articles, even though of an expensive and luxurious character, are included if they are reasonable in view of the
infant's circumstances.[3]
Observation:
Articles which may be necessaries for one family may well be luxuries for another.[4]
[FN2] Children's Hosp. of Birmingham, Inc. v. Kelley, 537 So. 2d 917 (Ala. Civ. App. 1987), judgment
aff'd in part, rev'd in part on other grounds, 537 So. 2d 919 (Ala. 1988).
[FN4] Spaulding v. New England Furniture Co., 154 Me. 330, 147 A.2d 916 (1959).
rights reserved.

AMJUR INFANTS § 64
END OF DOCUMENT


Infants

(1) In General
§ 65. Who determines whether an item is a necessary
Whether items provided to an infant are necessaries depends on the facts of each case.[1] Some cases hold
that whether the goods contracted for or furnished to a minor are necessaries is a question of law for the court.[2
] Other cases take the view that what are necessaries is a mixed question of law and fact.[3] According to this
latter view, it is for the judge to define the class and character of articles which are necessaries; and if there is
evidence creating a reasonable question of the character of the items involved in the case, it is for the jury to say
whether the particular articles in question fall within the class.[4]
[FN1] Statler v. Dodson, 195 W. Va. 646, 466 S.E.2d 497 (1995).
[FN3] Johnson v. Newberry, 267 S.W. 476 (Tex. Comm'n App. 1924).
[FN4] Sykes v. Dickerson, 216 Ark. 116, 224 S.W.2d 360 (1949).
rights reserved.
AMJUR INFANTS § 65
END OF DOCUMENT


Infants

(2) Application to Particular Articles or Services
§ 66. Generally
Food and drink,[1] clothing,[2] and lodging or shelter,[3] including board while attending school,[4] are ne-
cessities when an infant lacks them and the amount and quality provided are reasonable.[5]
Caution:
There is authority to the contrary, stating that one who provides a minor with goods and services proceeds at his
or her own risk,[6] implying at least that not every good or service constitutes a necessity.
[FN3] Parkwood OB/GYN Inc. v. Hess, 70 Ohio Misc. 2d 32, 650 N.E.2d 533 (Mun. Ct. 1995).
[FN6] Goldberg v. Superior Court, 23 Cal. App. 4th 1378, 28 Cal. Rptr. 2d 613 (4th Dist. 1994).
rights reserved.
AMJUR INFANTS § 66

END OF DOCUMENT


Infants

§ 67. Housing and related services
Leased living quarters may fall within the classification of necessities.[1] However, housing is not per se a
necessary so minors are liable for signing contracts for housing, at least when their parents remain willing and
able to furnish housing[2] but the children move out voluntarily.[3]
An agreement to purchase a number of items of household goods and furnishings, including a stove and a
bedroom set, is a contract for necessaries when the infant is married and living with his or her spouse and child
at the time of the delivery of the articles.[4]
Taxes against an infant's property are necessaries because they are an obligation the law requires to be
paid.[5] On the other hand, insurance is not a contract for necessaries.[6] Similarly, a contract to install siding
on a minor's house is not a contract for necessaries absent a showing that the house improvements were neces-
sary.[7]
[FN1] Ragan v. Williams, 220 Ala. 590, 127 So. 190, 68 A.L.R. 1182 (1930).
[FN2] Young v. Weaver, 883 So. 2d 234 (Ala. Civ. App. 2003).
[FN3] Rivera v. Reading Housing Authority, 819 F. Supp. 1323 (E.D. Pa. 1993), order aff'd, 8 F.3d 961
(3d Cir. 1993) (applying Connecticut and Texas law).
As to the effect of other sources of the item on its characterization as a necessary, see § 63.
[FN4] Spaulding v. New England Furniture Co., 154 Me. 330, 147 A.2d 916 (1959).

[FN6] Am. Jur. 2d, Insurance § 216.
[FN7] Dalton v. Bundy, 666 S.W.2d 443 (Mo. Ct. App. W.D. 1984).
rights reserved.
AMJUR INFANTS § 67
END OF DOCUMENT


Infants

§ 68. Motor vehicle; bicycle; farm machinery
Under the older line of cases, an automobile is not regarded as a necessary for an infant[1] although it is
used by the infant to transport himself or herself to and from his or her workplace.[2]
In more recent cases, however, an automobile has been deemed as important to the modern household as
food, clothing, and shelter,[3] and although an automobile is not per se a necessary for a minor,[4] under certain
circumstances, it may be regarded as a necessary to an infant[5] although not a necessary under other circum-
stances.[6] There is also authority that private transportation, such as an automobile, for an infant worker is now
a necessary.[7]
Observation:
Whether an automobile is a necessary is a fact for the jury, taking into account such considerations as the in-
fant's station in life, his or her personal need of the vehicle, the type of work in which he or she is engaged, the
traveling distance to the place of his or her work, convenient alternative means of transportation, the terms of his
or her contract of employment, and the willingness of his or her parents to help him or her.[8]
Whether a truck purchased for business purposes is a necessary is a question on which the courts are di-
vided, with some holding it is not,[9] and others holding that it can be a necessity depending on the particular
circumstances of the case.[10]
As a general rule, a motorcycle is excluded from the class of necessaries.[11]
Farm machinery, including a tractor, disc, and cultipacker, purchased by a minor farmer to cultivate a farm
to earn a living for the infant, his or her spouse, and their child, are necessaries.[12]

[FN1] Semmens v. Floyd Rice Ford, Inc., 1 Mich. App. 395, 136 N.W.2d 704 (1965).
[FN2] Perry Auto Co. v. Mainland, 229 Iowa 187, 294 N.W. 281 (1940).
[FN4] Star Chevrolet Co. v. Green by Green, 473 So. 2d 157 (Miss. 1985).
[FN6] Robertson v. King, 225 Ark. 276, 280 S.W.2d 402, 52 A.L.R.2d 1108 (1955).
[FN7] Ehrsam v. Borgen, 185 Kan. 776, 347 P.2d 260 (1959).
[FN10] Sykes v. Dickerson, 216 Ark. 116, 224 S.W.2d 360 (1949).
[FN11] Maloney & Kratky v. Perks, 169 Ill. App. 227, 1912 WL 2154 (4th Dist. 1912).
[FN12] Williams v. Buckler, 264 S.W.2d 279 (Ky. 1954).
rights reserved.
AMJUR INFANTS § 68
END OF DOCUMENT


Infants

§ 69. Education
A.L.R. Library
Responsibility of noncustodial divorced parent to pay for, or contribute to, costs of child's college educa-
tion, 99 A.L.R.3d 322
The class of necessaries for which a minor may be bound by contract includes education.[1] Thus, a proper
education is a necessary for an infant.[2] What is a proper education, however, depends on circumstances, to be
determined by the jury.[3]
Observation:
Even if a contract exists between a minor and a local school district in which the minor attends school and in
which his or her tuition is not paid, such contract would be voidable based upon infancy; and when the minor
has been admitted to the school at his or her parents' preference and at the discretion of the school district, all in-
dication of "necessity" is vitiated.[4]
A college, university, or professional education has been excluded under particular circumstances[5] al-
though in some cases it has been suggested that an advanced education may be a necessary when the infant's
ability and prospects justify it.[6] Also excluded from the class of necessaries in some cases are correspondence
school instruction.[7]
Minors are allowed to contract for their benefit with power in most cases to recede from their contract

when it may prove prejudicial to them, but in their contract for necessaries, such as teaching and in-
struction, they are absolutely bound. Douglass v. Pflueger Hawaii, Inc., 110 Haw. 520, 135 P.3d 129
(2006), as corrected, (May 30, 2006).
1994).
[FN3] In re Johnstone's Estate, 64 Ill. App. 2d 447, 212 N.E.2d 143 (1st Dist. 1965).
[FN4] In re Dembek, 64 B.R. 745, 34 Ed. Law Rep. 789 (Bankr. N.D. Ohio 1986).
[FN5] In re Johnstone's Estate, 64 Ill. App. 2d 447, 212 N.E.2d 143 (1st Dist. 1965) (the amount paid as
tuition was not reasonable in light of the infant's likely qualification for scholarship or other tuition re-
ductions).
rights reserved.
AMJUR INFANTS § 69
END OF DOCUMENT


Infants

§ 70. Medical and dental services
A.L.R. Library
Infant's liability for medical, dental, or hospital services, 53 A.L.R.4th 1249
Forms
Am. Jur. Legal Forms 2d §§ 144:5, 144:6 (Consent by infant to diagnosis or treatment)
Though a parent is responsible for paying a child's medical expenses, if a parent cannot or will not pay for
necessary medical care, the provider of the care may look to the child or, if the child has an estate, to the child's
estate for payment.[1] Thus, medical[2] and dental[3] services are necessaries. However, an infant is not person-
ally liable for necessary medical, dental, or hospital expenses when he or she is living with, and being supported
by, his or her parents.[4]
Under some formulations of the rule, although medical services provided to a minor constitute "necessary"
services, a medical service provider is precluded from recovering on a contract for such services when the pro-
vider knows the minor's date of birth when the services are rendered and therefore has knowledge of the minor's
incapacity to contract.[5]
Observation:
The doctrine of necessaries was never intended to be a limitation on a child's right to recover medical expenses
from the person or persons responsible for causing them; rather, the doctrine is merely an acknowledgment that
for certain services, a minor should not be heard to disavow a contract which by a personal necessity required

his or her participation.[6]
An infant is liable for medical services rendered to save his or her life in an emergency.[7]
Caution:
A state's necessaries doctrine, pursuant to which minors can only enter into contracts for necessaries, may be
preempted by the Federal Employee Retirement Income Security Act (ERISA) to defeat a claim that because an
ERISA health plan provides no necessaries to its child beneficiaries, they were thereby relieved from any duty
under the plan to reimburse the plan for medical expenses from payments received from a third party.[8]
The attorney's fees incurred by a hospital in enforcing a minor's contract for medical services rendered to
the minor's infant son are not "necessaries" that the minor is obligated to pay the hospital after the minor disaf-
firms the contract.[9]
[FN1] In re Estate of Reed, 201 P.3d 1264 (Colo. App. 2008).
Patient was liable, under the "doctrine of necessaries," to hospital for emergency medical care that it
provided to patient when she was a minor; fact that patient's father used insurance proceeds that were
earmarked to pay for hospital bill to instead buy patient a new automobile was a clear indication of his
unwillingness to pay, as required for doctrine to apply. Schmidt v. Prince George's Hosp., 366 Md. 535,
784 A.2d 1112 (2001).
[FN2] Williams v. Baptist Health Systems, Inc., 857 So. 2d 149 (Ala. Civ. App. 2003); Douglass v.
Pflueger Hawaii, Inc., 110 Haw. 520, 135 P.3d 129 (2006), as corrected, (May 30, 2006); Schmidt v.
Prince George's Hosp., 366 Md. 535, 784 A.2d 1112 (2001); State ex rel. Packard v. Perry, 221 W. Va.
526, 655 S.E.2d 548 (2007).
[FN3] McLean v. Jackson, 12 Ga. App. 51, 76 S.E. 792 (1912).
[FN4] Cole v. Wagner, 197 N.C. 692, 150 S.E. 339, 71 A.L.R. 220 (1929).
[FN5] Parkwood OB/GYN Inc. v. Hess, 70 Ohio Misc. 2d 32, 650 N.E.2d 533 (Mun. Ct. 1995).
[FN6] Johns Hopkins Hosp. v. Pepper, 346 Md. 679, 697 A.2d 1358 (1997).
[FN7] State of Ohio, University of Cincinnati Hosp. v. Cohen, 57 Ohio App. 3d 30, 566 N.E.2d 187
(1st Dist. Hamilton County 1989).
[FN8] Blue Cross and Blue Shield of Alabama v. Cooke, 3 F. Supp. 2d 668 (E.D. N.C. 1997).
[FN9] Ex parte Odem, 537 So. 2d 919 (Ala. 1988).
As to the minor's liability for attorney's fees, generally, see § 71.
rights reserved.

AMJUR INFANTS § 70
END OF DOCUMENT


Infants

§ 71. Services of attorney
A.L.R. Library
Infant's liability for services rendered by attorney at law under contract with him, 13 A.L.R.3d 1251
A number of cases recognize that an infant may be held liable for legal services rendered by an attorney un-
der a contract with him or her when those services fall within the concept of "necessaries."[1] The infant's liabil-
ity for the services of an attorney have been upheld on the theory of necessaries when such services were re-
quired for his or her personal relief, protection, liberty, support,[2] security, or reputation,[3] as in the prosecu-
tion of a personal injury action,[4] an action for indecent assault,[5] an action for support,[6] or as in defense of
a criminal prosecution.[7]
Observation:
It has also been held that an infant is liable for legal services contracted for by him or her if the services
rendered are beneficial to him or her, irrespective of whether such services may be classified as necessaries.[8]
To the extent that they are deemed "necessities," the legal fees involved must also be reasonable.[9]
[FN2] Crafts v. Carr, 24 R.I. 397, 53 A. 275 (1902); Johnson v. Newberry, 267 S.W. 476 (Tex. Comm'n
App. 1924).

[FN5] Crafts v. Carr, 24 R.I. 397, 53 A. 275 (1902).
[FN6] State v. Cosby, 1955 OK 173, 285 P.2d 210 (Okla. 1955).
[FN8] Porter v. Wilson, 106 N.H. 270, 209 A.2d 730, 13 A.L.R.3d 1247 (1965).
As to the fees for legal services deemed not necessaries, see § 72.
[FN9] Nixon v. Bryson, 488 So. 2d 607 (Fla. Dist. Ct. App. 3d Dist. 1986).
As to the general requirement of reasonableness, see § 59.
rights reserved.
AMJUR INFANTS § 71
END OF DOCUMENT


Infants

§ 72. Services of attorney—Not deemed necessaries
There is authority for the view that merely because legal representation in a will contest benefits a preter-
mitted infant does not provide a sufficient basis to determine that the legal representation is "reasonably neces-
sary" to protect the infant's interests as required to recognize an implied contract for legal services.[1] Legal ser-
vices required in the prosecution of an infant's claim for damages do not constitute necessaries in view of the
suspension during his or her minority of the running of the statute of limitations.[2]
It has been asserted that a minor has no capacity to engage an attorney by his or her acquiescence in the act
of the attorney.[3]
As to fees for legal services as necessaries, see § 71.
[FN2] Fenn v. Hart Dairy Co., 231 Mo. App. 1005, 83 S.W.2d 120 (1935).
[FN3] Dostal v. Magee, 272 Wis. 509, 76 N.W.2d 349 (1956).
rights reserved.
AMJUR INFANTS § 72
END OF DOCUMENT


Infants

(3) Obligations Incurred to Pay for Necessaries
§ 73. Generally
While the general rule is that an infant's contract to repay money borrowed by him or her is voidable,[1]
some decisions hold that when a person advances money to an infant to be used for necessaries, or to discharge
the infant's debt for necessaries, he or she has the right to recover it back from the infant.[2] However, a minor is
not liable for necessaries furnished on the credit of another person.[3]
[FN1] § 53.
[FN3] Logan Furniture Mart, Inc. v. Davis, 8 Ill. App. 3d 150, 289 N.E.2d 228 (1st Dist. 1972).
rights reserved.
AMJUR INFANTS § 73
END OF DOCUMENT

AMJUR INFANTS IV B REF Page 1
42 Am. Jur. 2d Infants IV B Refs.

Infants

B. Avoidance
Research References
West's Key Number Digest, Infants 31(1), 31(2), 58(1), 58(2)
A.L.R. Library
West's A.L.R. Digest, Infants 31(1), 31(2), 58(1), 58(2)
Forms
Am. Jur. Legal Forms 2d §§ 144:18 to 144:23
Am. Jur. Pleading and Practice Forms, Infants §§ 65 to 67, 70
U.C.C. § 2-403
Restatement Second, Contracts § 14, Comment c
rights reserved.
AMJUR INFANTS IV B REF
END OF DOCUMENT


Infants

B. Avoidance
1. In General
a. Overview
§ 74. Generally; right of avoidance
West's Key Number Digest, Infants 31(1), 58(1)
Forms
Am. Jur. Legal Forms 2d §§ 144:18 to 144:23 (Disaffirmance and avoidance of agreements)
In the absence of a statute to the contrary,[1] an infant's contracts or agreements are voidable.[2] The right
of an infant to avoid his or her contracts is one conferred by law for his or her protection against the designs of
others, his or her own improvidence,[3] and want of sound judgment.[4] The rule that minors may avoid con-
tracts they enter into with adults is based on the presumption that unequal bargaining power always exists
between the two, with the power, and therefore, the potential for overreaching, inuring to the adult.[5]
An infant's right to rescind a contract is unaffected by the approval or consent of a parent.[6] In fact, when a
principal lacks contractual capacity by reason of infancy, any contract entered into on his or her behalf by his or
her agent is voidable.[7]
Observation:
The right of an infant to avoid a contract because of his or her infancy is not affected by the fact that the rights
of third parties have supervened.[8]
If an infant has a right to disaffirm a contract, his or her particular motive in doing so is immaterial.[9] The
infant's right to avoid a transaction is not defeated by his or her receipt of money or any other thing of value dur-
ing the transaction,[10] nor is an infant precluded from repudiating a contract for the purchase of machinery
merely because he or she has used the machinery while it was in his or her possession and has benefited from its
use.[11]

[FN1] Schmidt v. Prince George's Hosp., 366 Md. 535, 784 A.2d 1112 (2001); State ex rel. Packard v.
Perry, 221 W. Va. 526, 655 S.E.2d 548 (2007).
[FN2] Shumate v. Twin Tier Hospitality, LLC, 655 F. Supp. 2d 521 (M.D. Pa. 2009); Loveless v. State,
896 N.E.2d 918 (Ind. Ct. App. 2008), transfer denied, 915 N.E.2d 980 (Ind. 2009); Yurek v. Shaffer,
678 S.E.2d 738 (N.C. Ct. App. 2009).
[FN3] Myerchin v. Family Benefits, Inc., 162 Cal. App. 4th 1526, 76 Cal. Rptr. 3d 816 (4th Dist. 2008),
as modified, (May 20, 2008) and as modified, (May 29, 2008).
[FN4] Sharon v. City of Newton, 437 Mass. 99, 769 N.E.2d 738, 165 Ed. Law Rep. 742 (2002).
[FN5] Loveless v. State, 896 N.E.2d 918 (Ind. Ct. App. 2008), transfer denied, 915 N.E.2d 980 (Ind.
2009).
[FN6] Gomes v. Hameed, 2008 OK 3, 184 P.3d 479 (Okla. 2008).
[FN7] Johnson v. New River Scenic Whitewater Tours, Inc., 313 F. Supp. 2d 621 (S.D. W. Va. 2004).
[FN8] Mellott v. Love, 152 Miss. 860, 119 So. 913, 64 A.L.R. 968 (1929).
[FN9] Rose v. Sheehan Buick, Inc., 204 So. 2d 903 (Fla. Dist. Ct. App. 3d Dist. 1967).
[FN10] Millsaps v. Estes, 137 N.C. 535, 50 S.E. 227 (1905).
As to whether, upon the avoidance of a contract in this case, the infant must return the value of the be-
nefit received from the transaction, see § 89.
rights reserved.
AMJUR INFANTS § 74
END OF DOCUMENT


Infants

B. Avoidance
1. In General
a. Overview
§ 75. Who may avoid
The right to avoid a contract or transaction because of the infancy of one of the parties is a privilege person-
al to the infant.[1] The defense of infancy in avoidance of a contract made by a partnership, of which one partner
is an infant, must be made by the infant himself or herself and cannot be made for him or her by the court, the
partnership, or a third person.[2]
If the infant dies before reaching majority, the infant's legal representative or heir may exercise the infant's
right of avoidance.[3] A guardian generally cannot avoid a contract made by a minor ward or with his or her as-
sent, at least if it appears to be a beneficial one.[4]
[FN1] Grange Mut. Cas. Co. v. Kay, 264 Ga. App. 139, 589 S.E.2d 711 (2003).
[FN2] Richards v. W.H. Hellen & Son, 153 Iowa 66, 133 N.W. 393 (1911).
As to the validity and effect of an infant's contract of partnership, generally, see § 51.
[FN3] Bankers' Trust Co. v. Bank of Rockville Center Trust Co., 114 N.J. Eq. 391, 168 A. 733, 89
A.L.R. 697 (Ct. Err. & App. 1933).
rights reserved.
AMJUR INFANTS § 75

END OF DOCUMENT


Infants

B. Avoidance
1. In General
a. Overview
§ 76. Time for avoidance
Subject to certain exceptions discussed hereafter,[1] agreements or contracts entered into by an infant are
voidable at the election of the infant and may be disaffirmed by the infant during minority or within a reasonable
time of reaching majority.[2]
Observation:
What constitutes a reasonable time in which an infant, upon reaching majority, may disaffirm a contract or
agreement entered into while still an infant depends upon the circumstances of each case; there is no hard-
and-fast rule regarding precise time limits.[3]
In some jurisdictions this rule is recognized by statute.[4]
[FN1] § 77.
[FN2] Yurek v. Shaffer, 678 S.E.2d 738 (N.C. Ct. App. 2009).
As to the reasonable time rule as applied to ratification, see § 113.
rights reserved.
AMJUR INFANTS § 76

END OF DOCUMENT


Infants

B. Avoidance
1. In General
a. Overview
§ 77. Time for avoidance—Avoidance during minority
There is mixed authority whether an infant may disaffirm during his or her minority. According to some de-
cisions, an infant can bring a suit during his or her minority to set aside a deed previously executed by him or
her.[1] There is also authority that an infant may avoid during his or her minority a lease made to him or her.[2]
Under a statute providing that a contract made by an infant under the age of 18 may be disaffirmed by him or her
either before majority or within one year thereafter, an infant may disaffirm during minority a lease and convey-
ance of land.[3]
Other authorities deny that an infant has the right to avoid during his or her minority certain transactions re-
lating to real property such as a contract of purchase of land,[4] a mortgage,[5] an easement,[6] or a family set-
tlement of a dispute over real property.[7]
In one jurisdiction, an infant cannot disaffirm a contract on the ground of infancy while the infancy contin-
ues[8] although he or she may disaffirm it during his or her infancy on any of the grounds applicable to contracts
generally such as, for example, fraud.[9] Thus, the courts in this jurisdiction have held that an infant, while his
or her infancy continues, cannot disaffirm on the ground of infancy a contract for the purchase of bonds[10] or a
compromise and settlement of a claim for personal injuries.[11]
Observation:
In some cases, the courts have made the statement that an infant may disaffirm his or her contract after attaining
his or her majority;[12] such statements, however, do not necessarily give rise to an inference that an infant may
not disaffirm his or her contract before reaching his or her majority.[13]
[FN1] New Domain Oil & Gas Co. v. McKinney, 188 Ky. 183, 221 S.W. 245 (1920).

[FN3] Ryan v. Morrison, 1913 OK 598, 40 Okla. 49, 135 P. 1049 (1913).
[FN5] Watson v. Ruderman, 79 Conn. 687, 66 A. 515 (1907); Shreeves v. Caldwell, 135 Mich. 323, 97
N.W. 764 (1904).
[FN6] Campbell v. Flying V. Cattle Co., 25 Ariz. 577, 220 P. 417 (1923).
[FN7] Smith v. Williams, 141 S.C. 265, 139 S.E. 625, 54 A.L.R. 964 (1927).
[FN8] Poli v. National Bank of Detroit, 355 Mich. 17, 93 N.W.2d 925 (1959).
[FN9] Patterson v. Kasper, 182 Mich. 281, 148 N.W. 690 (1914).
[FN10] Milligan v. S.W. Straus & Co., 268 Mich. 317, 256 N.W. 449 (1934).
[FN11] Lansing v. Michigan Cent. R. Co., 126 Mich. 663, 86 N.W. 147 (1901).
rights reserved.
AMJUR INFANTS § 77
END OF DOCUMENT


Infants

B. Avoidance
1. In General
b. Mode of Avoidance
§ 78. Generally
No specific language is required to communicate a minor's intent to disaffirm a contract; a contract or con-
veyance of a minor may be avoided by any act or declaration disclosing an unequivocal intent to repudiate its
binding force and effect.[1] There is no requirement that a disaffirmance of a contract by an infant shall follow
any prescribed form or ceremonial.[2]
The means which are sufficient to avoid a voidable act of an infant differ according to the nature of the act
and the circumstances of the case.[3]
[FN3] Tucker's Lessee v. Moreland, 35 U.S. 58, 9 L. Ed. 345, 1836 WL 3707 (1836).
As to whether it is necessary for an infant to return the consideration received by him or her in order to
avoid a contract or transaction, that is, whether the return of the consideration received is a prerequisite
to an effective disaffirmance, see § 85.
rights reserved.
AMJUR INFANTS § 78
END OF DOCUMENT


Infants

B. Avoidance
1. In General
§ 79. Particular acts or conduct constituting avoidance
Forms
Am. Jur. Legal Forms 2d §§ 144:21, 144:22 (Notice—Disaffirmance of contract)
Am. Jur. Legal Forms 2d § 144:23 (Notice—Disaffirmance of promissory note)
Although express notice to the other party is unnecessary,[1] an infant's contract may be avoided by proper
notice of an intention to disaffirm.[2]
Observation:
The right to disaffirm a contract made during minority is subject to the infant's conduct which, upon reaching
the age of majority, may amount to a ratification.[3]
An infant's contract may also be avoided by a plea of infancy when an action is brought against him or her
on the contract.[4] A release of a cause of action may be avoided by bringing an action upon the cause of ac-
tion.[5] A minor avoids a contract employing attorneys to prosecute a claim for personal injuries by applying for
the appointment of a general guardian and making an independent settlement with the one responsible for the in-
juries.[6]
[FN2] General Motors Acceptance Corp. v. Vaughn, 358 Ill. 541, 193 N.E. 483 (1934).
[FN3] In re The Score Board, Inc., 238 B.R. 585 (D.N.J. 1999) (applying New Jersey law).

As to what constitutes ratification, see §§ 104 to 115.
[FN6] Plummer v. Northern Pac. Ry. Co., 98 Wash. 67, 167 P. 73, 7 A.L.R. 104 (1917).
As to a minor's liability for attorneys' services, generally, see § 71.
rights reserved.
AMJUR INFANTS § 79
END OF DOCUMENT


Infants

B. Avoidance
1. In General
§ 80. Acts avoiding deeds; mortgages
An infant's deed is disaffirmed by his or her act in executing a mortgage upon the property embraced in the
deed, at least so long as the mortgage is inconsistent with the deed.[1] An infant's deed may also be avoided by
an equitable suit to cancel it on the ground of infancy.[2]
The infant's execution of another deed to a third person after reaching maturity is generally a sufficient dis-
affirmance of a deed to the same property executed prior to majority,[3] at least when the second deed is recor-
ded[4] and is clearly inconsistent with the first deed.[5]
An infant's mortgage may be avoided by an equitable suit to cancel it on the ground of infancy.[6] There is
authority for the view that the infant's sale of property covered by a mortgage is a disaffirmance of the mortgage
even though it was given for the purchase price of the property.[7]
[FN1] Tolar v. Marion County Lumber Co., 93 S.C. 274, 75 S.E. 545 (1912).
[FN2] Baisden v. Gibson, 208 Ky. 341, 270 S.W. 830 (1925).
[FN4] Tucker's Lessee v. Moreland, 35 U.S. 58, 9 L. Ed. 345, 1836 WL 3707 (1836); Teat v. Jones, 126
Tex. 480, 89 S.W.2d 987 (Comm'n App. 1936).
[FN5] Shreeves v. Caldwell, 135 Mich. 323, 97 N.W. 764 (1904).
[FN6] Rutherford v. Hughes, 228 S.W.2d 909 (Tex. Civ. App. Amarillo 1950).

As to the general rule that the former infant's act of selling or using the property which he or she ac-
quired under a contract or transaction entered into during infancy is a ratification of the contract or
transaction, see § 110.
(1930).
rights reserved.
AMJUR INFANTS § 80
END OF DOCUMENT


Infants

B. Avoidance
1. In General
§ 81. Partial avoidance or ratification
An infant cannot disaffirm a portion of a single contract or transaction and affirm the rest.[1]
If the infant avoids any part of a contract, the entire contract is avoided.[2]
[FN1] Value Auto Credit, Inc. v. Talley, 727 So. 2d 61 (Ala. 1999).
(1930).
rights reserved.
AMJUR INFANTS § 81
END OF DOCUMENT


Infants

B. Avoidance
1. In General
c. Effect of Avoidance
§ 82. Generally
Once an infant's contract or transaction is effectively disaffirmed, the disaffirmance cannot subsequently be
repudiated.[1]
After an infant has disaffirmed a contract, anyone may take advantage of such disaffirmance.[2]
Observation:
The policy of the law is to discourage adults from contracting with an infant, and they cannot complain if, as a
consequence of violating this rule, they are injured by the exercise of the right of disaffirmance vested in the in-
fant.[3]
An infant who disaffirms a contract is ordinarily not bound by any future obligations or liabilities under the
contract. Thus, when an infant's contract of partnership is disaffirmed, an adult partner cannot recover from the
infant partner for the executory features of the contract, such as, for example, promises to make future contribu-
tions or assume future liabilities, although the infant partner may be required to return the benefits received un-
der the contract before he or she is discharged from liability.[4] Similarly, when an infant's contract for the em-
ployment of attorneys to bring a personal injury action for him or her was disaffirmed, the attorneys cannot
thereafter enforce any rights under the contract even though the action for the infant's personal injury might be
regarded as a necessary.[5]
On the other hand, according to some courts, where a child upon reaching the age of majority unequivocally
repudiates a release signed by his or her parent the release will remain valid; these courts declare that enforcing
such a release comports with the fundamental liberty interest of parents in rearing their children and is not in-
consistent with the public policy permitting minors to void their contracts.[6] Still, other courts declare that an
infant's right to rescind a contract is unaffected by the approval or consent of a parent.[7]

[FN1] Fuller v. Pool, 258 Ill. App. 513, 1930 WL 3210 (2d Dist. 1930).
[FN5] Plummer v. Northern Pac. Ry. Co., 98 Wash. 67, 167 P. 73, 7 A.L.R. 104 (1917).
As to an infant's liability for attorneys' services, see § 71.
[FN6] Sharon v. City of Newton, 437 Mass. 99, 769 N.E.2d 738, 165 Ed. Law Rep. 742 (2002).
rights reserved.
AMJUR INFANTS § 82
END OF DOCUMENT


Infants

B. Avoidance
1. In General
c. Effect of Avoidance
§ 83. Contract void ab initio
According to some courts, when an infant's contract or transaction is properly avoided, it becomes void ab
initio, that is, void from the beginning.[1] Disaffirmance of a contract, whether executed or executory, has the
effect of a rescission[2] and restores the rights of the parties to the same condition in which they would have
been had no contract been made.[3]
According to other courts, however, contracts entered into by minors for nonnecessaries ordinarily are only
voidable rather than void ab initio; thus, only after a minor has disaffirmed the contract for nonnecessaries may
the contract be considered null and void.[4] Thus, these courts hold that avoidance of an infant's contract does
not relate back to the time of the contract so as to render the other party to the contract a tortfeasor for his or her
dealings with the subject matter of the contract prior to avoidance.[5] Likewise, when an infant purchases an
automobile from a dealer, his or her later disaffirmance of the purchase does not make the dealer the owner of
the automobile prior to the disaffirmance so that it is responsible as the owner for damages incurred in the use of
the automobile by the infant while it was in his or her possession before the disaffirmance.[6]
[FN1] Loomis v. Imperial Motors, Inc., 88 Idaho 74, 396 P.2d 467, 12 A.L.R.3d 1166 (1964).
[FN4] Schmidt v. Prince George's Hosp., 366 Md. 535, 784 A.2d 1112 (2001).
As to rule that ordinarily an infant's voidable contract is valid until avoided, see § 44.

[FN6] Semmens v. Floyd Rice Ford, Inc., 1 Mich. App. 395, 136 N.W.2d 704 (1965).
rights reserved.
AMJUR INFANTS § 83
END OF DOCUMENT


Infants

B. Avoidance
2. Infant's Duty to Restore
a. Consideration Received by Infant
§ 84. Generally; return of consideration
Upon the avoidance of an infant's contract or transaction, the infant is required to return the consideration
received if it is still in his or her possession[1] or if it is within the infant's power to do so.[2] To effectuate the
disaffirmance of a purchase contract, the infant is not required to restore the property which the seller parted
with when the infant never actually received it.[3] Similarly, the rule of restitution is not applicable when an in-
fant seeks to avoid a contract under which he or she obtained a release of a contract for his or her employment
since it would be futile to require the return of the employment contract, which is unenforceable as to the in-
fant.[4]
In the case of an executory contract, the infant is not required to return what he or she has received,[5] al-
though in other jurisdictions, if the infant has already received the consideration, or a part thereof, the rule re-
quiring the infant to return the consideration applies to both executed and executory contracts.[6]
Comment:
According to the Restatement Second, Contracts, an infant's disaffirmance revests in the other party the title to
any property received by the infant under the contract. If the consideration received by the infant has been dis-
sipated by him or her, the other party is without remedy unless the infant ratifies the contract after coming of age
or is under some noncontractual obligation, but some states, by statute or decision, have restricted the power of
disaffirmance, either generally or under particular circumstances, by requiring restoration of the consideration
received. When the infant seeks to enforce the contract, the conditions of the other party's promise must be ful-
filled. The problems arising when an infant seeks to disaffirm a conveyance or executed contract are beyond the
scope of the Restatement whether the disaffirmance is attempted before or after he or she comes of age.[7]
[FN1] MacGreal v. Taylor, 167 U.S. 688, 17 S. Ct. 961, 42 L. Ed. 326 (1897); Nelson v. Browning, 391

S.W.2d 873 (Mo. 1965).
[FN2] Marceiliac v. Stevens, 206 Ky. 383, 267 S.W. 229 (1924).
[FN3] Merchants' Credit Bureau v. Kaoru Akiyama, 64 Utah 364, 230 P. 1017 (1924).
[FN5] Braucht v. Graves-May Co., 92 Minn. 116, 99 N.W. 417 (1904).
[FN6] Russell v. Buck, 116 Vt. 40, 68 A.2d 691 (1949) (by implication).
[FN7] Restatement Second, Contracts § 14, Comment c.
rights reserved.
AMJUR INFANTS § 84
END OF DOCUMENT


Infants

B. Avoidance
§ 85. As a condition or consequence of avoidance
The decisions are conflicting whether the infant's duty to return the consideration received by him or her
and remaining in his or her possession, when he or she avoids or seeks to avoid a contract or transaction, is a
condition precedent to an effectual disaffirmance, or is merely a consequence of the avoidance, not affecting its
effectiveness. In some cases, the courts have treated the return of the consideration as a condition of the disaf-
firmance.[1] Other cases hold the return of the consideration is not a prerequisite to a disaffirmance of a con-
tract, at least when an action is brought against the infant on the contract and a disaffirmance is then sought by
the defense of infancy.[2]
When a return of the consideration received by the infant is regarded as a condition to his or her disaffirm-
ance of the contract or to his or her recovery of the property which he or she parted with, the condition can be
complied with not only by an actual return of the consideration but also by a tender or offer to return it.[3] In
such instance, the adverse party cannot defeat the infant's right to avoid or to recover by refusing to take back
the consideration tendered by the infant;[4] the infant's tender, if offered and refused, excuses him or her from
the necessity of making any further offer.[5] There is also authority that when a tender would be useless, it is un-
necessary.[6]
[FN4] Evants v. Taylor, 18 N.M. 371, 137 P. 583 (1913).

[FN6] Bombardier v. Goodrich, 94 Vt. 208, 110 A. 11, 9 A.L.R. 1028 (1920).
rights reserved.
AMJUR INFANTS § 85
END OF DOCUMENT


Infants

B. Avoidance
§ 86. As prerequisite to infant's recovery
Forms
Am. Jur. Pleading and Practice Forms, Infants §§ 65, 66 (Complaint, petition, or declaration—Of infant su-
ing by guardian ad litem—Rescission of contract for purchase of non-necessaries—Return of consideration)
Am. Jur. Pleading and Practice Forms, Infants § 67 (Complaint, petition, or declaration—Of infant suing by
guardian ad litem—Rescission of contract for purchase of non-necessaries—Return of considera-
tion—Cancellation of security agreement)
The infant who disaffirms a contract or transaction cannot recover back what he or she has parted with un-
der the contract or transaction unless the infant returns, or offers to return, the consideration received and re-
maining in his or her possession.[1]
There is, however, authority that a return of, or a tender to return, the consideration received by the infant
and remaining in his or her possession is not a prerequisite to the recovery by the infant of the money or other
property that he or she parted with.[2]
As to the infant's right to recover what he or she has parted with where he or she disaffirms a contract
or transaction, see §§ 94 to 99.

rights reserved.
AMJUR INFANTS § 86
END OF DOCUMENT


Infants

B. Avoidance
§ 87. Consideration wasted, used, or otherwise disposed of
Upon the avoidance of an infant's contract or transaction, the infant is required to return the consideration he
or she received only if it is still in his or her possession.[1] The infant who has avoided a contract, or seeks to
avoid it and recover what he or she has parted with, is not obliged to return the consideration received when,
during his or her minority and before disaffirmance, he or she wasted, squandered, destroyed, used, or otherwise
disposed of the consideration;[2] nor is the infant liable, in such case, to return the equivalent of the considera-
tion or otherwise to account for its value.[3] Thus, when an infant has parted with the property purchased by him
or her, he or she may, on the disaffirmance of the contract, recover the amount paid without restoring the prop-
erty.[4]
Observation:
The infant's right to avoid a transaction without returning the consideration, when he or she has used it before
the disaffirmance, exists even when the other party to the transaction was also an infant.[5]
Between the two extremes stated above is the intermediate view that the infant's duty to restore is extended
to include both the specific property received by him or her and any substituted property if he or she has ex-
changed the original property[6] and that although the infant need not account for the loss of the consideration
received when it has been squandered or destroyed, he or she must account for so much of its value as was in-
vested in other property which remains in his or her hands or under his or her control.[7]
[FN1] § 84.
As to an infant's liability for the use or depreciation of the other party's property, or for damage done to

it, after a disaffirmance of the transaction and before his or her surrender of the property, see § 91.
[FN3] Hines v. Cheshire, 36 Wash. 2d 467, 219 P.2d 100 (1950).
[FN4] Adamowski v. Curtiss-Wright Flying Service, 300 Mass. 281, 15 N.E.2d 467 (1938).
[FN5] Drude v. Curtis, 183 Mass. 317, 67 N.E. 317 (1903).
[FN6] Whitman v. Allen, 123 Me. 1, 121 A. 160, 36 A.L.R. 776 (1923).
[FN7] Fisher v. Taylor Motor Co., 249 N.C. 617, 107 S.E.2d 94 (1959).
rights reserved.
AMJUR INFANTS § 87
END OF DOCUMENT


Infants

B. Avoidance
§ 88. Consideration not returnable in specie
The infant is not bound to return anything upon the disaffirmance when the consideration received is of such
a nature that it cannot be returned in specie, as for example, when the consideration received consisted of ser-
vices rendered to the infant.[1]
[FN1] Adamowski v. Curtiss-Wright Flying Service, 300 Mass. 281, 15 N.E.2d 467 (1938)
(instruction).
rights reserved.
AMJUR INFANTS § 88
END OF DOCUMENT


Infants

B. Avoidance
b. Return of Benefits
§ 89. Generally; restoration to status quo
The infant who has avoided a transaction, or seeks to avoid it and recover what he or she has parted with, is
not required to restore the other party to the status quo.[1] However, because such a general rule may sometimes
cause hardship to the other party, some courts have declared that the infant who disaffirms a transaction must re-
turn the consideration received or account for all the benefits he or she derived under the transaction,[2] at least
when the other party is free from any fraud or bad faith.[3]
[FN1] Pankas v. Bell, 413 Pa. 494, 198 A.2d 312, 17 A.L.R.3d 855 (1964).
[FN2] Porter v. Wilson, 106 N.H. 270, 209 A.2d 730, 13 A.L.R.3d 1247 (1965).
[FN3] Worman Motor Co. v. Hill, 54 Ariz. 227, 94 P.2d 865, 124 A.L.R. 1363 (1939).
rights reserved.
AMJUR INFANTS § 89
END OF DOCUMENT


Infants

B. Avoidance
§ 90. Return of property; revesting of title
When an infant purchases personal property, the title thereto usually vests in him or her, but upon disaffirm-
ance of the purchase, the title revests in the vendor,[1] and the vendor may recover possession of the property by
an action of replevin.[2]
When an infant purchased property under a conditional sales contract and the title to the property remains in
the vendor, the vendor may, upon the disaffirmance of the contract by the infant, recover back the property from
the infant, as in the case of a disaffirmance of an ordinary sale, when the infant retains the property.[3]
rights reserved.
AMJUR INFANTS § 90
END OF DOCUMENT


Infants

B. Avoidance
§ 91. Liability for use or depreciation of, or damage to, property
A.L.R. Library
Infant's liability for use or depreciation of subject matter, in action to recover purchase price upon his disaf-
firmance of contract to purchase goods, 12 A.L.R.3d 1174
The decisions are not in agreement whether an infant who disaffirms a transaction whereby he or she has
obtained goods must account for the use or depreciation of the goods while in his or her possession prior to the
disaffirmance. According to some cases, an infant who disaffirms such a transaction is not liable for the use or
depreciation of the goods.[1] Other cases hold that an infant who disaffirms such a transaction cannot recover
back what he or she has paid for the goods without being subject to a deduction for the use and depreciation of
the goods while in his or her possession.[2]
Observation:
Nonetheless, even in jurisdictions requiring a deduction for use or depreciation of the property, if there has been
any fraud or imposition on the part of the seller, or if the contract is unfair, or if any unfair advantage has been
taken of the minor in inducing him or her to make the purchase, then no deduction is available.[3]
Still other cases hold that when an infant made false representations as to his or her age to induce the sale of
the goods, the infant may be subjected, when suing to recover the purchase price upon disaffirmance of the con-
tract, to a deduction for the depreciation of the goods or for damage done to them while in his or her posses-
sion.[4] However, some courts hold that the infant's misrepresentation of his or her age does not operate to limit
his or her right to a full recovery in an action for sums of money that he or she paid under a disaffirmed con-
tract.[5]
Although there is some authority to the contrary,[6] there are decisions indicating that while the disaffirm-

ing infant is not liable for the normal depreciation of the property, he or she is liable for the damage done to the
property as the result of his or her tortious acts.[7]
To avoid a contract for the purchase of an article, the minor is not required to account for profits he or she
made by use of the article[8] nor is he or she required to compensate the other party for damages incurred by the
other party from the loss of the sale of the article.[9]
[FN2] Olshen v. Kaufman, 235 Or. 423, 385 P.2d 161 (1963).
[FN3] Pettit v. Liston, 97 Or. 464, 191 P. 660, 11 A.L.R. 487 (1920).
[FN4] Myers v. Hurley Motor Co., 273 U.S. 18, 47 S. Ct. 277, 71 L. Ed. 515, 50 A.L.R. 1181 (1927).
[FN5] Drennen Motor Car Co. v. Smith, 230 Ala. 275, 160 So. 761 (1935).
[FN7] Smith v. Hempen, 8 La. App. 120, 1928 WL 3801 (2d Cir. 1928).
[FN9] Harvey v. Hadfield, 13 Utah 2d 258, 372 P.2d 985 (1962).
rights reserved.
AMJUR INFANTS § 91
END OF DOCUMENT


Infants

B. Avoidance
§ 92. Liability for use or depreciation of, or damage to, property—Occurring after avoidance
A.L.R. Library
Infant's liability for use or depreciation of subject matter, in action to recover purchase price upon his disaf-
firmance of contract to purchase goods, 12 A.L.R.3d 1174
As a general rule, an infant who disaffirms a transaction whereby he or she has obtained personal property is
liable for any tortious use or disposition of the property after the disaffirmance of the transaction and before his
or her surrender of the property to the other party.[1] Thus, when an infant disaffirmed his contract for the pur-
chase of personal property, but retained possession of the property claiming that he had a lien thereon for the
payments he had made under the contract, the infant was in the position of a bailee while so retaining the prop-
erty and was liable for the use of the property during such period of bailment and for any deterioration of its
value resulting from such use.[2] On the other hand, when an infant purchaser of an automobile disaffirmed his
contract and offered to return the automobile, but the offer was refused by the seller, the seller was not entitled
to the reasonable rental value of the vehicle between the date of the original offer to return and the date of the
actual return, since the infant in such a case was in the position of a gratuitous bailee or a bailee for the sole be-
nefit of the bailor, who is entitled to a reasonable use of the bailed goods, subject to any damage or loss resulting
from his gross negligence.[3]
[FN2] McCarty-Greene Motor Co. v. McCluney, 219 Ala. 211, 121 So. 713 (1929).

rights reserved.
AMJUR INFANTS § 92
END OF DOCUMENT


Infants

B. Avoidance
c. Statutory Provisions
§ 93. Generally
Matters relating to the return of the consideration received by the infant when he or she disaffirms a contract
have been regulated by statute in some jurisdictions.[1] According to a certain statute, for example, the duty of
returning the consideration is imposed only upon those minors who are over the age of 18 years.[2] The provi-
sions of other statutes state that the infant is bound by his or her contracts unless he or she disaffirms them and
restores to the other party all the money and property received by him or her by virtue of the contract and re-
maining within his or her control.[3]
As to what must be returned by an infant upon his or her disaffirmance of a contract, some statutes require
the return of only "the consideration" received[4] while other statutes provide that an infant must return the con-
sideration or "pay its equivalent" if he or she was over the age of 18 when the contract was made.[5]
Under a statute providing that no action should be maintained on any contract made by a minor, except for
necessaries or real estate, unless he or she ratified it in writing after arriving at his or her majority, a former in-
fant who was sued for the amount of goods sold to him while he was a minor could plead his infancy as a bar to
the action without returning the goods obtained by him, because the statute did not require him, before or after-
ward, to return the consideration as a condition in such case.[6]
In some cases, the infant is statutorily liable for the use or depreciation of the goods to be returned under a
disaffirmed contract.[7]
[FN3] Ehrsam v. Borgen, 185 Kan. 776, 347 P.2d 260 (1959).

[FN4] Downey v. Northern Pac. Ry. Co., 72 Mont. 166, 232 P. 531 (1924).
[FN6] Lamkin & Foster v. Ledoux, 101 Me. 581, 64 A. 1048 (1906).
[FN7] Security Bank v. McEntire, 227 Ark. 667, 300 S.W.2d 588 (1957).
rights reserved.
AMJUR INFANTS § 93
END OF DOCUMENT


Infants

B. Avoidance
3. Infant's Recovery of Consideration or Property
§ 94. Generally
Upon the avoidance of a contract, an infant is entitled to recover the consideration furnished by him or her,[
1] or any benefits paid under the contract.[2]
An infant's action to recover the consideration paid by him or her under a voidable contract is maintainable
without a prior demand for the return of the consideration[3] or prior notice of the infant's intention to disaffirm
the contract,[4] at least when there is nothing to tender back by the infant.[5]
An infant who has disaffirmed a contract of partnership may recover the amount he or she contributed,[6]
less what he or she has received from the partnership fund.[7]
An infant lessee may, upon the avoidance of his or her lease, recover from the lessor any money which he or
she has paid as rent when he or she has received no benefit from the leased premises.[8]
[FN6] Kuipers v. Thome, 182 Ill. App. 28, 1913 WL 2641 (1st Dist. 1913) (abstract).
[FN7] Thomas v. Banks, 224 Mich. 488, 195 N.W. 94 (1923).

As to housing as a necessary, see § 67.
rights reserved.
AMJUR INFANTS § 94
END OF DOCUMENT


Infants

B. Avoidance
§ 95. Money
As a general rule, an infant who paid money on his or her contract has the right to recover back the amount
paid when avoiding the contract.[1] Thus, when an infant who purchased goods[2] or real property[3] disaffirms
the transaction, he or she may recover the purchase money paid by him or her even though the payment made is
to be treated as liquidated damages.[4] The same is true as to a conditional sale to an infant.[5]
An infant, upon electing to disaffirm or rescind his or her contract for the subscription to or the purchase of
corporate stock, may recover the purchase money which he or she paid thereunder under the same rules as pre-
vail in the particular jurisdiction as to infants' contracts generally.[6]
[FN1] Wuller v. Chuse Grocery Co., 241 Ill. 398, 89 N.E. 796 (1909).
[FN5] Ross P. Curtice Co. v. Kent, 89 Neb. 496, 131 N.W. 944 (1911).
[FN6] Godfrey v. Mutual Finance Corp., 242 Mass. 197, 136 N.E. 178 (1922).
rights reserved.
AMJUR INFANTS § 95
END OF DOCUMENT


Infants

B. Avoidance
§ 96. When claims discharged or released
An infant who released or discharged his or her claim for damages may, upon the avoidance of the release
or discharge, sue the other party and recover the just damages.[1]
Practice Tip:
In any case, however, the amount of recovery by the infant in such a case is subject to a deduction for the con-
sideration received under the release and retained by him or her.[2]
[FN2] Clinchfield Coal Corp. v. Couch, 127 Va. 634, 104 S.E. 802, 13 A.L.R. 398 (1920).
As to a disaffirming infant's duty to return the consideration received, see §§ 84 to 93.
rights reserved.
AMJUR INFANTS § 96
END OF DOCUMENT


Infants

B. Avoidance
§ 97. Services provided
A.L.R. Library
Right of infant who repudiates contract for services to recover thereon or in quantum meruit, 35 A.L.R.2d
1302
An infant, upon repudiating a contract for his or her personal services, whether partly or fully executed, may
recover on a quantum meruit basis the reasonable value of the services he or she rendered[1] although the recov-
ery for such services may not be allowed on the basis of the disaffirmed contract.[2]
[FN1] Bensinger v. West, 255 S.W.2d 29, 35 A.L.R.2d 1296 (Ky. 1953).
[FN2] Yancey v. Boyce, 28 N.D. 187, 148 N.W. 539 (1914).
For the general rule that an infant cannot disaffirm a portion of a single contract or transaction and af-
firm the rest, see § 81.
rights reserved.
AMJUR INFANTS § 97
END OF DOCUMENT


Infants

B. Avoidance
§ 98. Personal property
A.L.R. Library
Measure of infant's recovery for value of chattel traded for another upon his rescission of the transaction, 52
A.L.R.2d 1114
When an infant repudiates a contract for the sale of his or her personal property,[1] or a contract involving
an exchange of personal property,[2] he or she is entitled to the return of the property from which he or she par-
ted. The refusal to return property in such a case by those who have kept it is a conversion.[3] Those who have
so intermeddled with the infant's property as to interfere with his or her dominion over it may also be held liable
for a conversion.[4]
When the purchaser has sold the property in good faith before the avoidance of the sale, the infant may be
allowed to recover from the other party the value of his or her property when the property itself cannot be re-
stored upon his or her disaffirmance of the contract.[5]
Observation:
With regard to the right of an infant to recover the property from a good-faith purchaser for value, the Uniform
Commercial Code provides that a person with a voidable title has the power to transfer a good title to a good-
faith purchaser for value.[6]
When determining the value of the property recoverable by an infant upon his or her disaffirmance of a con-
tract involving an exchange of personal property, the courts disagree as to the measure of the amount of recov-
ery. Some courts hold that the reasonable or market value of the infant's property as of the time of the exchange
is the proper measure of the recovery[7] while in other cases the conventional valuation set by the parties by
way of a trade-in allowance has been used as the measure of the infant's recovery.[8]

[FN2] Doenges-Long Motors, Inc. v. Gillen, 138 Colo. 31, 328 P.2d 1077 (1958).
[FN6] U.C.C. § 2-403.
[FN7] Doenges-Long Motors, Inc. v. Gillen, 138 Colo. 31, 328 P.2d 1077 (1958).
[FN8] Schoenung v. Gallet, 206 Wis. 52, 238 N.W. 852, 78 A.L.R. 387 (1931).
rights reserved.
AMJUR INFANTS § 98
END OF DOCUMENT


Infants

B. Avoidance
§ 99. Real property
Upon the disaffirmance of a deed made during infancy, the infant is entitled to recover the property con-
veyed by him or her.[1] When an infant's deed is disaffirmed by his or her execution of another deed to a third
person,[2] the third person grantee may maintain an action to recover the possession of the property from the
grantee under the prior deed.[3]
An infant who by disaffirming a deed seeks to recover the possession of the property is entitled to rents
from the time of his or her disaffirmance of the deed.[4]
The right of an infant to disaffirm a deed is not lost by a conveyance by his or her grantee to an innocent
purchaser. Thus, in some jurisdictions, an infant disaffirming a deed may recover the property from a third per-
son who purchased it from the infant's grantee in good faith and without knowledge that the predecessor in title
was an infant.[5]
[FN1] MacGreal v. Taylor, 167 U.S. 688, 17 S. Ct. 961, 42 L. Ed. 326 (1897).
[FN2] § 80.
[FN4] Peters v. Noble, 196 Ky. 123, 244 S.W. 416 (1922).
rights reserved.

AMJUR INFANTS § 99
END OF DOCUMENT


Infants

B. Avoidance
4. Estoppel to Avoid
§ 100. Generally
There is no uniformity in decisions as to whether and under what circumstances an infant is estopped from
avoiding his or her contract or transaction. According to some decisions, an infant will not be estopped from
avoiding his or her contract or conveyance because of his or her acts or declarations.[1] In other cases, however,
it has been recognized that under certain circumstances an infant may be estopped from avoiding his or her con-
tract when to allow the avoidance would result in fraud and unfairness,[2] especially in cases of equitable cog-
nizance.[3]
In one jurisdiction, there is conflicting authority regarding the application of estoppel. Earlier decisions hold
that the estoppel arising from an infant's misrepresentations at the time of making the contract is a limited one,
in that an infant who made a false representation to induce a contract is estopped from recovering, on the ground
of infancy, what he or she has parted with under the contract, but is not subject to any future affirmative obliga-
tions under the contract.[4] Later decisions, however, hold that infants are incapable of binding themselves by
way of estoppel and are relieved from the effects of facts which would create an estoppel against them if they
were of full age.[5]
[FN1] MacGreal v. Taylor, 167 U.S. 688, 17 S. Ct. 961, 42 L. Ed. 326 (1897).
[FN3] Carmen v. Fox Film Corporation, 269 F. 928, 15 A.L.R. 1209 (C.C.A. 2d Cir. 1920).
As to the effect of misrepresentation of age on the application of estoppel, see § 101.

rights reserved.
AMJUR INFANTS § 100
END OF DOCUMENT


Infants

B. Avoidance
§ 101. Estoppel by false representation as to age
Forms
Am. Jur. Pleading and Practice Forms, Infants § 70 (Answer—Defense—Infant's misrepresentation of age
as estoppel—Plaintiff precluded from disaffirming contract)
The decisions are not in agreement whether an infant is estopped from avoiding a contract or transaction
when he or she made a false representation as to his or her age in order to induce the contract or transaction. Ac-
cording to some cases that an infant induced a contract by a false representation that he or she was of full age
does not estop him or her from avoiding the contract.[1] Under this view, an infant who induced a contract or
transaction by his or her false representation of age may avoid the contract or transaction and bring an action at
law to recover what he or she parted with under the contract or transaction.[2]
In other jurisdictions, however, the courts hold that the doctrine of estoppel is applicable to an infant who
seeks to avoid a contract induced by a false representation as to his or her age.[3] Under this view, an infant who
induced a contract or transaction by his or her false representation of age is estopped from bringing an action at
law to recover, on the ground of infancy, what he or she parted with under the contract or transaction.[4] There
is also authority that an infant who induced a contract by falsely representing himself or herself to be of age may
not demand relief from a court of equity.[5] Some courts adhering to this view hold, however, that, while the in-
fant is estopped to receive the goods or consideration he or she parted with, the future obligations under the con-
tract or agreement cannot be enforced against the infant.[6]
Observation:
The courts which find an estoppel against an infant have recognized that the misrepresentation of age upon
which the estoppel is based may be by conduct as well as by words.[7]

[FN1] Myers v. Hurley Motor Co., 273 U.S. 18, 47 S. Ct. 277, 71 L. Ed. 515, 50 A.L.R. 1181 (1927);
Gillis v. Whitley's Discount Auto Sales, Inc., 70 N.C. App. 270, 319 S.E.2d 661 (1984).
[FN2] Sternlieb v. Normandie Nat. Securities Corporation, 263 N.Y. 245, 188 N.E. 726, 90 A.L.R.
1437 (1934).
As to an infant's right to recover, upon avoidance of a contract or transaction, what he or she has parted
with thereunder, see §§ 94 to 99.
[FN3] Youngblood v. State, 658 S.W.2d 598 (Tex. Crim. App. 1983).
[FN4] Nichols v. English, 223 Ga. 227, 154 S.E.2d 239, 29 A.L.R.3d 1265 (1967).
[FN5] Mossler Acceptance Co. v. Perlman, 47 So. 2d 296 (Fla. 1950).
[FN7] New Domain Oil & Gas Co. v. McKinney, 188 Ky. 183, 221 S.W. 245 (1920).
rights reserved.
END OF DOCUMENT


Infants

B. Avoidance
§ 102. Estoppel by false representation as to age—Elements of estoppel for misrepresentation of age; suffi-
ciency of evidence
To be estopped from avoiding a contract, an infant must have, at the time of the contract, fraudulently rep-
resented that he or she was of full age or actively concealed his or her minority.[1]
Practice Tip:
That the infant failed to disclose his or her true age at the time of the contract or transaction,[2] appeared and
was believed to be an adult by the other party at that time,[3] or that the documents signed as part of the contract
or transaction stated the infant represented himself or herself to be over 21 years of age[4] are not sufficient by
themselves to establish an estoppel against the infant.
The infant must be capable of, and be shown to have acted with, a conscious fraudulent intent.[5]
The party contracting with the infant must be deceived by the fraud of the infant and thereby induced to
make the contract[6] and must have justifiably and in good faith relied upon the infant's statements as to his or
her age.[7]
Observation:
There is no estoppel when the person to whom the infant made the representations as to being of age was put on
notice by the circumstances and suggestions that the infant was in fact a minor;[8] there must have been an un-
equivocal misrepresentation of such a nature as to justify the adult's reliance thereon.[9]
The infant must have received and be retaining the benefits obtained under the contract,[10] or otherwise
expressed, the person denying the infant's claim of the estoppel must have suffered a substantial detriment
thereby.[11]

[FN3] Correy v. Michaelovitch, 46 R.I. 387, 128 A. 673, 39 A.L.R. 374 (1925).
[FN8] County Bd. of Ed. v. Hensley, 147 Ky. 441, 144 S.W. 63 (1912).
[FN9] Gerkey v. Hampe, 274 S.W. 510 (Mo. Ct. App. 1925).
[FN11] Giddens v. D.S. Etheridge Co., Inc., 2 Tenn. App. 324, 1926 WL 1980 (1926).
rights reserved.
END OF DOCUMENT


Infants

B. Avoidance
§ 103. Estoppel by false representation as to age—Statutory provisions
In some jurisdictions, it is provided by statute that an infant cannot disaffirm a contract when, because of his
or her misrepresentations as to his or her age, or from his or her having engaged in business as an adult, the oth-
er party had good reason to believe him or her capable of contracting.[1] Under such a statute, a minor is pre-
cluded from disaffirming a contract for the purchase of an automobile when he or she signed a written statement
that he or she was 21 years of age or over[2] or otherwise falsely represented that he or she was of full age.[3]
However, a statement made by an infant when purchasing an automobile that his money was in the bank and he
would pay for the automobile the following day is not a representation that he was of age within the meaning of
the statute.[4] An infant who worked by the year as a farm laborer, or bought lots and exchanged them for a
team of horses, did not "engage in business as an adult" within the meaning of the statute.[5]
Observation:
The misrepresentation which will enable a party who has contracted with a minor to invoke the statute must be
the minor's own misrepresentation as to his or her majority, that is, it must be some affirmative or definite state-
ment, intended to mislead and to create a belief in the mind of the other party that he or she is capable of con-
tracting.[6]
Statutes of this type are not intended to make one who contracts with an infant a judge of the infant's abilit-
ies and to enable him or her to bind the infant if he or she thinks the infant is sufficiently intelligent and perspic-
acious that he or she should be bound by his or her contract.[7] Rather, its purpose is to protect the other party
when the infant has engaged in business so that the other party, even though using ordinary caution and
prudence, is nevertheless justifiably misled into believing that he or she is dealing with an adult capable of con-
tracting.[8]
Caution:
These statutes do not protect one who enters into a contract with full knowledge of the other party's nonage and

disability and when there is no possibility of his or her having good reason to believe that the infant is capable of
contracting.[9]
[FN2] Lubin v. Cowell, 25 Wash. 2d 171, 170 P.2d 301 (1946).
[FN3] Thosath v. Transport Motor Co., 136 Wash. 565, 240 P. 921 (1925).
[FN4] Friar v. Rae-Chandler Co., 192 Iowa 427, 185 N.W. 32 (1921).
[FN5] Beickler v. Guenther, 121 Iowa 419, 96 N.W. 895 (1903).
[FN6] Martin v. Stewart Motor Sales, 247 Iowa 204, 73 N.W.2d 1 (1955).
rights reserved.
END OF DOCUMENT

AMJUR INFANTS IV C REF Page 1
42 Am. Jur. 2d Infants IV C Refs.

Infants

C. Ratification
Research References
West's Key Number Digest, Infants 30(1) to 30(3), 57(1), 57(2)
A.L.R. Library
West's A.L.R. Digest, Infants 30(1) to 30(3), 57(1), 57(2)
Forms
Am. Jur. Legal Forms 2d §§ 144:28, 144:29, 144:31 to 144:33
rights reserved.
AMJUR INFANTS IV C REF
END OF DOCUMENT


Infants

C. Ratification
1. In General
§ 104. Generally; time for ratification
West's Key Number Digest, Infants 30(1) to 30(3), 57(1), 57(2)
A.L.R. Library
Under the infancy doctrine, a minor may choose to ratify contractual obligations entered into during his or
her minority.[1] This ratification may be effected upon the minor reaching the age of majority[2] or by failing to
disaffirm within a reasonable time after reaching majority.[3]
Observation:
A void agreement made by an infant, like any other types of void contracts, cannot be ratified.[4]
Ratification, like avoidance, is a right personal to the infant, which can be exercised only by the infant him-
self or herself[5] or by his or her personal representative after his or her death.[6] Thus, the fact that after a
minor reached majority his or her father consulted with an attorney engaged by the minor during his or her
minority is immaterial in determining whether the minor ratified the engagement of the attorney[7] although
some authorities have said that although the right to ratify is personal with the infant, this does not mean that
some act of the parent may not constitute ratification.[8]
An infant cannot ratify his or her contract while his or her minority continues[9] for the obvious reason that
the same defect of contractual power would attach to the ratification as to the contract, and a contrary rule would
enable an infant to make any contract by simply taking two steps—first, making the contract, and second, ratify-
ing it.
[FN1] H & S Homes, L.L.C. v. McDonald, 823 So. 2d 627 (Ala. 2001); Douglass v. Pflueger Hawaii,
Inc., 110 Haw. 520, 135 P.3d 129 (2006), as corrected, (May 30, 2006).

[FN2] Douglass v. Pflueger Hawaii, Inc., 110 Haw. 520, 135 P.3d 129 (2006), as corrected, (May 30,
2006).
[FN3] In re Estate of Duran, 2003-NMSC-008, 133 N.M. 553, 66 P.3d 326 (2003).
Minor automobile accident victim ratified the release of all claims against an alleged tortfeasor and his
parents by keeping the liability insurer's payment when she became an adult three months after judg-
ment and never taking any actions to repudiate it, to set it aside, or to otherwise have it declared invalid.
Parsons ex rel. Cabaniss v. American Family Ins. Co., 305 Wis. 2d 630, 2007 WI App 211, 740 N.W.2d
399 (Ct. App. 2007), review denied, 2008 WI 19, 307 Wis. 2d 294, 746 N.W.2d 811 (2008).
[FN4] Am. Jur. 2d, Contracts § 10.
[FN6] Hermenau v. Zazzarino, 108 N.J. Eq. 451, 155 A. 459 (Ch. 1931).
[FN8] Del Bosco v. U.S. Ski Ass'n, 839 F. Supp. 1470 (D. Colo. 1993).
rights reserved.
END OF DOCUMENT


Infants

C. Ratification
1. In General
§ 105. Effect of ratification
Forms
Am. Jur. Legal Forms 2d § 144:33 (Deed confirming minor's prior conveyance of real property)
The ratification of an infant's voidable agreement is in legal effect an abandonment of the infant's optional
right to disaffirm it.[1] When a voidable contract is ratified, it cannot thereafter be avoided.[2] Thus, a minor
who seeks the benefits of a contract must also assume its burdens.[3]
Observation:
The legal effect of a ratification is the same as though there never was a power of avoidance—as though the
agreement was absolutely binding from the beginning.[4]
A ratification, once validly made, cannot be withdrawn or reversed.[5]
A deed executed by a minor becomes valid and effective if ratified by him or her after he or she attains ma-
jority[6] and is superior to the title of persons claiming under a deed executed after such ratification if the sub-
sequent grantee had notice of the ratification of the prior deed.[7]
[FN1] Fletcher v. Marshall, 260 Ill. App. 3d 673, 198 Ill. Dec. 494, 632 N.E.2d 1105 (2d Dist. 1994).
[FN3] Sarmiento v. Grange Mut. Cas. Co., 106 Ohio St. 3d 403, 2005-Ohio-5410, 835 N.E.2d 692
(2005).
[FN4] Lee v. Thompson, 124 Fla. 494, 168 So. 848 (1936).

rights reserved.
END OF DOCUMENT


Infants

C. Ratification
2. What Constitutes Ratification
a. In General
§ 106. Generally
Forms
Am. Jur. Legal Forms 2d § 144:28 (Notice of ratification of purchase of land and encumbrance given during
minority)
Am. Jur. Legal Forms 2d § 144:29 (Ratification of contract—General form)
Am. Jur. Legal Forms 2d § 144:31 (Ratification—Debt contracted during minority in exchange for purchase
of merchandise)
Am. Jur. Legal Forms 2d § 144:32 (Ratification—Land sales contract)
Am. Jur. Legal Forms 2d § 144:33 (Notice of ratification of contract made during minority)
Generally speaking, ratification is a matter of intention.[1] Thus, ratification results when the former infant
freely and without duress[2] decides to let the contract stand and definitely manifests that election.[3] Ratifica-
tion should be voluntary, not obtained by circumvention, nor under ignorance of fact that he or she is entitled to
claim the privilege.[4]
Ratification may be verbal,[5] inferred from the words of the infant.[6] Silence by a minor upon reaching
the age of majority, however, is not sufficient to ratify a contract.[7] The intent to ratify need not be expressly
declared[8] but may be inferred from the affirmative actions of the infant.[9] Such intent or purpose may be, and
ordinarily is, inferred from the free and voluntary acts of the party to be charged although he or she may not
have in mind any definite intent or purpose to ratify.[10] If a minor, after becoming of age, does any distinct and
decisive act clearly showing an intention to affirm a contract or deed made during his or her minority, the infant
will be deemed to have ratified the contract or deed.[11] Thus, any conduct on the part of a former infant which
evidences his or her decision that the transaction shall not be impeached is sufficient to ratify a contract made

during minority.[12]
In the case of executed contracts, ratification is more often inferred from the conduct of the former infant
than from his or her expressed declarations, but in the case of executory contracts, ratification must be positive
and explicit.[13]
[FN2] Sims v. Everhardt, 102 U.S. 300, 26 L. Ed. 87, 1880 WL 18733 (1880).
[FN4] Foss v. Circuit City Stores, Inc., 477 F. Supp. 2d 230 (D. Me. 2007) (applying Maine law).
[FN6] Rubin v. Strandberg, 288 Ill. 64, 122 N.E. 808, 5 A.L.R. 133 (1919).
[FN7] Marte v. Oliveras, 378 N.J. Super. 261, 875 A.2d 969 (App. Div. 2005).
[FN8] Hobbs v. Hinton Foundry Machine & Plumbing Co., 74 W. Va. 443, 82 S.E. 267 (1914).
[FN10] Schulman v. Villensky, 103 Ohio App. 300, 3 Ohio Op. 2d 328, 143 N.E.2d 754 (1st Dist.
Hamilton County 1957).
A tennis player, who was a minor when she entered into an endorsement agreement with a sports appar-
el and footwear manufacturer, effectively ratified the agreement after she turned 18 years of age, and
thus, she was bound by the terms of the agreement under North Carolina law; after turning 18, the play-
er accepted two payments from the manufacturer, the second payment was received more than six
months after the player's 18th birthday, the player also accepted the manufacturer's attempt to redesign
her shoes as well as other merchandise at no charge one month after she turned 18, and it was not until
approximately 32 months after the player achieved the age of majority that she communicated to the
manufacturer that she wished to void her contract. Baker v. Adidas America, Inc., 335 Fed. Appx. 356
(4th Cir. 2009).
rights reserved.

END OF DOCUMENT


Infants

C. Ratification
a. In General
§ 107. Effect of ignorance of right to avoid, infancy, or existence of contract
A.L.R. Library
There is a conflict of judicial opinion upon the question whether knowledge that one's contract or convey-
ance is voidable by reason of infancy is a necessary element of a ratification thereof after reaching maturity.
Some courts take the view that such knowledge is a necessary element of a ratification.[1] Other cases, however,
hold that an infant's contract may be deemed ratified by his or her acts or conduct even when he or she at the
time of such acts or conduct does not know he or she has the right to avoid the contract.[2]
There is also authority that the former infant's knowledge, or lack thereof, of his or her right to disaffirm a
contract may be taken into consideration in determining whether he or she has exercised his or her right to disaf-
firm within a reasonable time or whether his or her failure to disaffirm after attaining his or her majority has res-
ulted in an implied ratification of the contract.[3]
[FN1] Fletcher v. A.W. Koch Co., 189 S.W. 501 (Tex. Civ. App. Austin 1916).
As to the time in which to avoid a contract or transaction, see § 76.
rights reserved.

END OF DOCUMENT


Infants

C. Ratification
b. Acts Signifying Ratification
§ 108. Generally; performance of or payment under contract
Performance of his or her contract by an infant after coming of age may be deemed a ratification. Thus, an
infant ratifies a contract for his or her services by continuance of his or her services after coming of age.[1]
A part payment under a contract voidable on the ground of infancy does not necessarily amount to a ratifica-
tion of the contract,[2] particularly when it is clear that the payment was made for a collateral purpose and
without an intention of ratifying the contract.[3] A contrary conclusion has been reached, however, in some
cases when the payment was accompanied by other acts showing an intention to ratify.[4]
[FN1] Baltimore & O.R. Co. v. Duke, 38 App. D.C. 164, Am. Ann. Cas. 1918C, 832, 1912 WL 19618
(App. D.C. 1912).
[FN2] International Accountants Soc. v. Santana, 166 La. 671, 117 So. 768, 59 A.L.R. 276 (1928).
[FN4] Watzel v. Beardslee, 289 Mich. 522, 286 N.W. 813 (1939) (upon reaching majority, the infant
promised to repay and did repay).
rights reserved.
END OF DOCUMENT


Infants

C. Ratification
§ 109. Demand for, or receipt or retention of, consideration paid to infant
A.L.R. Library
The demand or acceptance by the former infant of any part of the consideration paid to him or her,[1] or the
retention by him or her of the consideration for a substantial period of time after reaching the age of majority
without any expression of dissent,[2] implies a ratification of a contract entered into during minority even if the
contract is executory.[3]
However, a former infant's expression of willingness to ratify a deed made during infancy if he or she re-
ceives the promised consideration does not amount to a ratification when he or she has never received such con-
sideration.[4] In short, if an infant has obtained no benefits under the contract, there is no reason to bar the in-
fant from disaffirming it.[5]
[FN1] Harden v. American Airlines, 178 F.R.D. 583 (M.D. Ala. 1998) (signing cruise ticket and taking
trip as passengers).

rights reserved.
END OF DOCUMENT


Infants

C. Ratification
§ 110. Use, sale, or transfer of property acquired
When a former infant takes the benefit of a contract or transaction entered into during his or her infancy by
selling, mortgaging, or converting to his or her own use the property which he or she acquired under such con-
tract or transaction,[1] or when he or she otherwise exercises acts of ownership over such property,[2] a ratifica-
tion of the contract or transaction is generally imputed.
Caution:
However, one court held that the retention for three months after reaching the age of majority of possession of
the property purchased by an infant, his enjoyment of the beneficial use thereof, his payment of part of the con-
sideration therefor, and his offer for sale of a part thereof were not sufficient to authorize the inference of an in-
tention to ratify.[3]
[FN1] Gulf, C. & S.F. Ry. Co. v. Lemons, 109 Tex. 244, 206 S.W. 75, 5 A.L.R. 943 (1918).
rights reserved.
END OF DOCUMENT


Infants

C. Ratification
c. Failure to Avoid or Delay in Avoiding
(1) Contracts
§ 111. Generally; executory contracts
A.L.R. Library
As to whether the failure of the infant to disaffirm the contract for some time after attaining majority oper-
ates as a ratification, the decisions are in conflict, particularly with respect to contracts executory on the part of
the infant. According to some cases dealing with an executory contract, the infant's failure to disaffirm the con-
tract for a long period of time after becoming of age does not imply a ratification.[1]
Another group of cases holds that the infant's failure to disaffirm an executory contract after becoming of
age does not imply a ratification of the contract only when the infant has received no benefit from the contract.[2
] Still, another group of cases holds that the question of ratification as a result of the infant's failure to disaffirm
an executory contract turns not so much upon the matter of benefit to the infant party after attaining his or her
majority, as upon the prejudice sustained by the other party because of the former infant's failure to explicitly
disaffirm.[3]
In some jurisdictions, on the other hand, the infant's failure to disaffirm an executory contract for an unreas-
onable time after coming of age constitutes an implied ratification of the contract although there were no other
attending circumstances tending to support such a ratification.[4] There is also authority for the view that the in-
fant's right to disaffirm a contract must be exercised within the time fixed by the statute of limitations after he or
she comes of age, or the contract is deemed ratified.[5]
[FN1] Harrod v. Kelly Adjustment Co., 179 A.2d 431 (Mun. Ct. App. D.C. 1962).

All executory contracts may be ratified at the election of the infant. H & S Homes, L.L.C. v. McDonald,
823 So. 2d 627 (Ala. 2001).
As to executed contracts, see § 112.
As to the rule that ratification of an infant's contract may be implied when he or she, after reaching ma-
jority, retains or uses the consideration received, see § 109.
[FN3] Walker v. Stokes Bros. & Co., 262 S.W. 158 (Tex. Civ. App. Austin 1924).
As to estoppel to disaffirm an infant's contract because of acts done after the disability of nonage is re-
moved, see § 100.
[FN5] Sternlieb v. Normandie Nat. Securities Corporation, 263 N.Y. 245, 188 N.E. 726, 90 A.L.R.
1437 (1934).
rights reserved.
END OF DOCUMENT


Infants

C. Ratification
(1) Contracts
§ 112. Executed contracts
Ordinarily an executed contract, as distinguished from an executory contract, voidable on the ground of in-
fancy, is deemed ratified by the failure of the former infant to disaffirm it within a reasonable time after reach-
ing his or her majority.[1]
An agreement of discharge or a release of a claim executed by an infant is binding upon him or her if not
avoided within a reasonable time after he or she reaches majority,[2] or according to some cases, within the time
fixed by the statute of limitations.[3]
Disaffirmance by infants of a family settlement must be within a reasonable time after the disability of in-
fancy ceases.[4]
[FN1] Dixon Nat. Bank of Dixon v. Neal, 5 Ill. 2d 328, 125 N.E.2d 463 (1955).
All executed contracts may be ratified at the election of the infant. H & S Homes, L.L.C. v. McDonald,
823 So. 2d 627 (Ala. 2001).
[FN4] Smith v. Williams, 141 S.C. 265, 139 S.E. 625, 54 A.L.R. 964 (1927).
rights reserved.

END OF DOCUMENT


Infants

C. Ratification
(1) Contracts
§ 113. Determination of reasonable time
A.L.R. Library
The rule that the former infant's failure to disaffirm a contract, whether executory or executed, within a reas-
onable time after attaining majority operates as a ratification, presents the question of what is a reasonable time
within which the infant must disaffirm the contract or it will be deemed ratified. Generally, what period of time
is reasonable is determined by the circumstances of each particular case.[1] In one case, a disaffirmance of a
contract three months after the infant attained majority was held to be within a reasonable time[2] while in an-
other case, the infant's failure to disaffirm for nearly seven months after reaching majority was considered as
evidence of a ratification.[3] Similarly, ratification was also evidenced where the desire of the former infant to
void the contract was not communicated to the other party until approximately 32 months after achieving the age
of majority.[4]
Practice Tip:
What is a reasonable period of time is usually a question of fact for the jury to determine[5] unless the matter is
so clearly one way or the other that the court can decide it as a matter of law.[6]
There is authority that when the former infant has gained no benefit by the delay in disaffirming his or her
contract and the other party to the contract has suffered no harm, disaffirmance may be allowed after consider-
ably greater delay than in other situations.[7]

[FN3] Kelly v. Furlong, 194 Minn. 465, 261 N.W. 460 (1935).
[FN4] Baker v. Adidas America, Inc., 335 Fed. Appx. 356 (4th Cir. 2009).
[FN7] Adamowski v. Curtiss-Wright Flying Service, 300 Mass. 281, 15 N.E.2d 467 (1938) (applying
New York Law).
rights reserved.
END OF DOCUMENT


Infants

C. Ratification
(1) Contracts
§ 114. Statutory provisions
A.L.R. Library
In some jurisdictions, a statute requires that the ratification of an infant's contract must be made in writing.[
1] Such a statute necessarily precludes the possibility of a binding ratification being made in any other manner
than in writing.[2]
Observation:
Even when a statute requires that the ratification must be in writing, the conduct of the infant party after attain-
ing his or her majority might be such as to estop him or her from claiming the benefit of the statute when sued
upon his or her contract.[3]
When a statute specifies the time within which an infant's contracts must be disaffirmed, the failure to disaf-
firm within the statutory period makes the contract binding upon the infant. This result has been reached under a
statute providing that an infant's contracts must be disaffirmed within a reasonable time after he or she attains
his or her majority[4] and also under a statute requiring disaffirmance within one year after the infant reaches his
or her majority.[5]
Miscellaneous statutory provisions relating to the ratification of an infant's contracts have also been applied
by the courts in determining whether a ratification of a particular contract has occurred. Thus, an infant who re-
tained possession of a part of the borrowed money and owned property in which another portion of such money
was invested is bound by the loan contract under a statute providing that if the minor receives property or other
valuable consideration, and after becoming of age, retains possession of the property or enjoys the proceeds of

such consideration, he or she is bound by the contract because of a ratification.[6] On the other hand, the former
infant's retention of clothing purchased during his minority, even though continued after he became of age, does
not constitute a ratification of the contract when the statute listed certain acts that constitute a ratification of the
contract but did not include in the list the retention of the consideration.[7]
[FN1] Foss v. Circuit City Stores, Inc., 477 F. Supp. 2d 230 (D. Me. 2007) (applying Maine law).
[FN2] Barnes v. American Soda Fountain Co., 1912 OK 119, 32 Okla. 81, 121 P. 250 (1912) (involving
an Arkansas statute).
[FN3] Jones v. Godwin, 187 S.C. 510, 198 S.E. 36 (1938).
As to estoppel to disaffirm an infant's contract because of acts done after the disability of nonage is re-
moved, see § 100.
[FN5] In re Campbell's Guardianship, 56 N.D. 60, 215 N.W. 913 (1927).
[FN6] Wickham v. Torley, 136 Ga. 594, 71 S.E. 881 (1911).
[FN7] Koerner v. Wilkinson, 96 Mo. App. 510, 70 S.W. 509 (1902).
rights reserved.
END OF DOCUMENT


Infants

C. Ratification
(2) Deeds
§ 115. Generally
In the case of a deed executed by an infant, several cases hold that the election to avoid the deed must be ex-
ercised within a reasonable time after the infant becomes of age and that it is lost by the failure to exercise it
within such time.[1] There are many other decisions taking the view that the right to avoid a deed made by an
infant, and to recover the land, exists until it has been barred by the statute of limitations.[2]
Observation:
Silence or the failure to disaffirm an infant's deed after he or she becomes of age does not amount to a ratifica-
tion of the deed, unless it is accompanied by an act showing an intent to confirm the deed, or is continued for a
long time after the infant reaches the age of majority.[3]
[FN1] Spencer v. Lyman Falls Power Co., 109 Vt. 294, 196 A. 276 (1938).
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AMJUR INFANTS V A REF Page 1
42 Am. Jur. 2d Infants V A Refs.

Infants
V. Liability for Torts

A. In General
Research References
West's Key Number Digest, Infants 59 to 64
A.L.R. Library
West's A.L.R. Digest, Infants 59 to 64
rights reserved.
AMJUR INFANTS V A REF
END OF DOCUMENT


Infants

A. In General
§ 116. Generally
A.L.R. Library
While the general rule is that an infant may avoid liability on his or her contracts,[1] an infant is liable for
his or her own torts[2] provided that the tort does not arise out of or is not connected with a contract.[3] The
mere fact of paternity or maternity does not make a parent liable to third parties for the torts of his or her minor
child.[4]
The obligation to use reasonable care extends to both adults and minors,[5] but the standard against which
the acts of a child are measured to determine if they constitute negligent conduct varies from that employed for
adults.[6]
An infant may be held liable for injuries caused by the infant's negligence[7] such as his or her negligence
in operating a motor vehicle.[8]
[FN1] § 39.
[FN2] Harrison v. Carroll, 139 F.2d 427 (C.C.A. 4th Cir. 1943); Moore v. Wilson, 180 Ark. 41, 20
S.W.2d 310 (1929); Cleveland Park Club v. Perry, 165 A.2d 485 (Mun. Ct. App. D.C. 1960); Beardsley
v. Clark, 229 Iowa 601, 294 N.W. 887 (1940); Mann v. Cook, 346 Mass. 174, 190 N.E.2d 676 (1963);
Charbonneau v. MacRury, 84 N.H. 501, 153 A. 457, 73 A.L.R. 1266 (1931); Braun v. Heidrich, 62
N.D. 85, 241 N.W. 599, 79 A.L.R. 1221 (1932); Lacey v. Laird, 166 Ohio St. 12, 1 Ohio Op. 2d 158,
139 N.E.2d 25 (1956); Connor v. Houtman, 1960 OK 52, 350 P.2d 311 (Okla. 1960); Newkumet v. Al-
len, 230 S.W.3d 518 (Tex. App. Eastland 2007).
[FN3] § 132.

[FN4] Sanders v. Herold, 217 S.W.3d 11 (Tex. App. Houston 1st Dist. 2006).
[FN5] Dunn v. Teti, 280 Pa. Super. 399, 421 A.2d 782 (1980).
[FN6] § 120.
[FN7] §§ 120 to 131.
[FN8] Goodall v. Doss, 44 Tenn. App. 145, 312 S.W.2d 875 (1958); Hopkins v. Droppers, 191 Wis.
334, 210 N.W. 684, 49 A.L.R. 1519 (1926).
As for children engaging in dangerous or adult activities, see § 129.
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Infants

A. In General
§ 117. Willful injuries
A.L.R. Library
West's A.L.R. Digest, Infants §§60
Ordinarily, infancy is not a defense in actions involving—
— willful misconduct or intentional acts such as fraud.[1]
— assault and battery.[2]
— trespass.[3]
— conversion.[4]
[FN1] International Land Co. v. Marshall, 1908 OK 243, 22 Okla. 693, 98 P. 951 (1908).
As to whether an infant of tender years may be held liable for intentional torts, see § 124.
As to whether an infant is liable in tort when he or she induced a contract by fraudulent misrepresenta-
tions, see §§ 135, 136.
[FN2] Guzy v. Gandel, 95 N.J. Super. 34, 229 A.2d 809 (App. Div. 1967); Childers v. A.S., 909 S.W.2d
282 (Tex. App. Fort Worth 1995); Garratt v. Dailey, 46 Wash. 2d 197, 279 P.2d 1091 (1955).
[FN3] Kenney v. Barna, 215 Neb. 863, 341 N.W.2d 901 (1983); Gymnastics USA v. McDougal, 92 Or.
App. 453, 758 P.2d 881 (1988).
[FN4] §§ 133, 134.

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Infants

A. In General
§ 118. Acts of infant's agent; infant as agent
A.L.R. Library
It is often held that an infant is not liable for the torts committed by an agent or servant under the doctrine of
respondeat superior since the appointment of an agent or servant by an infant generally is not binding.[1]
The command or direction of an infant's parent or guardian is not a defense available to an infant who com-
mits a tortious act at such direction[2] except in the case of actual duress.[3]
[FN1] Hodge v. Feiner, 338 Mo. 268, 90 S.W.2d 90, 103 A.L.R. 483 (1935); Messer v. Reid, 186 Tenn.
94, 208 S.W.2d 528 (1948); Fernandez v. Lewis, 92 S.W.2d 305 (Tex. Civ. App. El Paso 1936), writ
dismissed; Covault v. Nevitt, 157 Wis. 113, 146 N.W. 1115 (1914).
As to the capacity of an infant to appoint an agent, see Am. Jur. 2d, Agency § 10.
[FN2] Fett v. Sligo Hills Development Corp., 226 Md. 190, 172 A.2d 511 (1961).
[FN3] Wisconsin Loan & Finance Corp. v. Goodnough, 201 Wis. 101, 228 N.W. 484, 67 A.L.R. 1259
(1930).
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Infants

A. In General
§ 119. Damages
A.L.R. Library
The age of an infant is determinative of not only the standard of care that is applicable to the infant's acts[1]
but also the type of damages recoverable against the infant.[2] When a child is of such an age as to be capable of
willful and malicious conduct, exemplary or punitive damages are recoverable,[3] and the damages are not lim-
ited to those which children of the defendant's age might anticipate.[4]
It is usually recognized that a very young child cannot be held liable for exemplary damages since a show-
ing of malice is ordinarily regarded as necessary thereto.[5]
[FN1] §§ 125, 126.
[FN2] Harkness v. Smith, 125 Misc. 2d 216, 478 N.Y.S.2d 239 (Sup 1984); Kirkpatrick v. U. S. Nat.
Bank, 264 Or. 1, 502 P.2d 579 (1972); Williams v. Lavender, 797 S.W.2d 410 (Tex. App. Fort Worth
1990), writ denied, (Feb. 20, 1991); Anello v. Savignac, 116 Wis. 2d 246, 342 N.W.2d 440, 15 Ed. Law
Rep. 556 (Ct. App. 1983).
[FN3] Harkness v. Smith, 125 Misc. 2d 216, 478 N.Y.S.2d 239 (Sup 1984); Kirkpatrick v. U. S. Nat.
Bank, 264 Or. 1, 502 P.2d 579 (1972); Williams v. Lavender, 797 S.W.2d 410 (Tex. App. Fort Worth
1990), writ denied, (Feb. 20, 1991); Anello v. Savignac, 116 Wis. 2d 246, 342 N.W.2d 440, 15 Ed. Law
Rep. 556 (Ct. App. 1983).
[FN4] Gymnastics USA v. McDougal, 92 Or. App. 453, 758 P.2d 881 (1988).
[FN5] Kirkpatrick v. U. S. Nat. Bank, 264 Or. 1, 502 P.2d 579 (1972).

As to the general requirement of malice to award exemplary damages, see Am. Jur. 2d, Damages §§ 556
, 561, 562.
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AMJUR INFANTS V B REF Page 1
42 Am. Jur. 2d Infants V B Refs.

Infants

B. Negligence; Standard of Care
Research References
A.L.R. Library
Forms
Am. Jur. Pleading and Practice Forms, Infants §§ 94, 98, 99
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AMJUR INFANTS V B REF
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Infants

1. In General
§ 120. Generally
A.L.R. Library
Modern trends as to tort liability of child of tender years, 27 A.L.R.4th 15
An infant ordinarily is responsible for his or her own torts.[1] The obligation to use reasonable care extends
to both adults and minors, but the standard against which the acts of a child are measured to determine if they
constitute negligent conduct varies from that employed for adults.[2]
When measuring the conduct of children, the courts depart from the well-known objective adult negligence
test of the care of a reasonable and prudent person[3] and make allowance for immaturity.[4]
[FN1] § 116.
[FN2] Rosenau v. City of Estherville, 199 N.W.2d 125 (Iowa 1972); Demery v. Housing Authority of
New Orleans, 689 So. 2d 659 (La. Ct. App. 4th Cir. 1997); McClain v. Hughes, 41 Mass. App. Dec. 161
(1969); Bragan ex rel. Bragan v. Symanzik, 263 Mich. App. 324, 687 N.W.2d 881 (2004); Romanik v.
Toro Co., 277 N.W.2d 515, 2 A.L.R.4th 1276 (Minn. 1979); Sorto v. Flores, 241 A.D.2d 446, 660
N.Y.S.2d 60 (2d Dep't 1997); Thompson v. Park River Corp., 161 Ohio App. 3d 502, 2005-Ohio-2855,
830 N.E.2d 1252 (1st Dist. Hamilton County 2005); Dunn v. Teti, 280 Pa. Super. 399, 421 A.2d 782
(1980); Finch v. Christensen, 84 S.D. 420, 172 N.W.2d 571 (1969); Guzman v. Guajardo, 761 S.W.2d
506 (Tex. App. Corpus Christi 1988), writ denied, (June 14, 1989).
As to contributory negligence, generally, see Am. Jur. 2d, Negligence §§ 797 to 805.
[FN3] Am. Jur. 2d, Negligence § 133.

[FN4] Pollock v. Superior Court for Los Angeles County, 272 Cal. App. 2d 548, 77 Cal. Rptr. 565 (2d
Dist. 1969); Sorrells v. Miller, 218 Ga. App. 641, 462 S.E.2d 793 (1995); Durham v. Forest Preserve
Dist. of Cook County, 152 Ill. App. 3d 472, 105 Ill. Dec. 614, 504 N.E.2d 899 (1st Dist. 1986); Demery
v. Housing Authority of New Orleans, 689 So. 2d 659 (La. Ct. App. 4th Cir. 1997); Center State Bank
v. Dana, Larson, Roubal & Associates, Inc., 226 Neb. 408, 411 N.W.2d 635, 41 Ed. Law Rep. 715
(1987); Dorais v. Paquin, 113 N.H. 187, 304 A.2d 369 (1973); Mochen v. State, 43 A.D.2d 484, 352
N.Y.S.2d 290 (4th Dep't 1974); Dunn v. Teti, 280 Pa. Super. 399, 421 A.2d 782 (1980); Hall v. Hall,
240 Va. 360, 397 S.E.2d 829 (1990).
As to standard of care applied to infants, see § 121.
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Infants

1. In General
§ 121. Applicable standard
A.L.R. Library
Age of minor operator of automobile or other motor-powered vehicle or craft as affecting his primary or
contributory negligence, 97 A.L.R.2d 872
Standard for judging conduct of minor motorist charged with gross negligence, recklessness, wilful or wan-
ton misconduct, or the like, under guest statute or similar common-law rule, 97 A.L.R.2d 861
Forms
Am. Jur. Pleading and Practice Forms, Infants § 94 (Instruction to jury—Standard of care required of in-
fant—Personal injury case)
Am. Jur. Pleading and Practice Forms, Infants §§ 98, 99 (Instruction to jury—Standard of care required of
infant)
The applicable standard of care to which infants generally are held is that which it is reasonable to expect of
children of like age, intelligence, and experience under similar circumstances.[1] This standard applies in both
primary and contributory negligence cases[2] and in cases involving comparative negligence statutes.[3]
Whether a minor has been negligent under a particular set of circumstances ordinarily is a question of fact[4
] although infants of very tender years (usually seven years of age or under) may be conclusively presumed in-
capable of negligence as a matter of law.[5]

[FN1] Banks by Banks v. U.S., 969 F. Supp. 884 (S.D. N.Y. 1997); Boykin v. Magnolia Bay, Inc., 570
So. 2d 639 (Ala. 1990); First Nat. Bank of Arizona v. Dupree, 136 Ariz. 296, 665 P.2d 1018 (Ct. App.
Div. 1 1983); Moffitt v. Carroll, 640 A.2d 169 (Del. 1994); Russell (Lanny) v. State, 42 Ill. Ct. Cl. 83,
1990 WL 10090765 (Ill. Ct. Cl. 1990); Hardsaw v. Courtney, 665 N.E.2d 603 (Ind. Ct. App. 1996);
Honeycutt By and Through Phillips v. City of Wichita, 247 Kan. 250, 796 P.2d 549 (1990); Scarbrough
v. O.K. Guard Dogs, 879 So. 2d 239 (La. Ct. App. 1st Cir. 2004), writ denied, 882 So. 2d 1127 (La.
2004); Moore v. Myers, 161 Md. App. 349, 868 A.2d 954 (2005); Mathis v. Massachusetts Elec. Co.,
409 Mass. 256, 565 N.E.2d 1180 (1991); Bragan ex rel. Bragan v. Symanzik, 263 Mich. App. 324, 687
N.W.2d 881 (2004); Root By and Through Root v. Mudd, 981 S.W.2d 651 (Mo. Ct. App. W.D. 1998);
Luellman v. Ambroz, 2 Neb. App. 855, 516 N.W.2d 627 (1994); Demeri by Demeri v. Morris, 194 N.J.
Super. 554, 477 A.2d 426 (Law Div. 1983); Yount v. Johnson, 121 N.M. 585, 1996-NMCA-046, 915
P.2d 341 (Ct. App. 1996); Sorto v. Flores, 241 A.D.2d 446, 660 N.Y.S.2d 60 (2d Dep't 1997);
Thompson v. Park River Corp., 161 Ohio App. 3d 502, 2005-Ohio-2855, 830 N.E.2d 1252 (1st Dist.
Hamilton County 2005); Smith v. Stribling, 168 Pa. Commw. 188, 649 A.2d 1003 (1994); Cook By and
Through Uithoven v. Spinnaker's of Rivergate, Inc., 878 S.W.2d 934 (Tenn. 1994); Guzman v.
Guajardo, 761 S.W.2d 506 (Tex. App. Corpus Christi 1988), writ denied, (June 14, 1989).
[FN2] Johnston v. Brown, 468 N.E.2d 597 (Ind. Ct. App. 1984); Standard v. Shine, 278 S.C. 337, 295
S.E.2d 786 (1982).
[FN3] Moffitt v. Carroll, 640 A.2d 169 (Del. 1994).
[FN4] § 123.
[FN5] § 124.
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Infants

1. In General
§ 122. Children at play
Liability has been imposed against an infant for injuries to person or property inflicted by the infant while at
play.[1]
Observation:
Play may include such sporting activities as golfing. Thus, an infant golfer has been held to the same standard of
care as an adult in certain circumstances[2] while the courts have declined to apply the doctrine of "unavoidable
accident" in an action brought for injuries sustained when one infant is struck in the head by the golf club swung
of another infant.[3]
However, if the injury was an accident, or the acts of the child were only the natural activity of friendly
play, there is no liability.[4]
When a child has the capacity to appreciate the inherent risk and danger of his or her actions, he or she will
be held liable.[5] Children at play are not absolved from the duty to exercise reasonable care to avoid injury to
others; if injuries result from their failure to exercise such care, there is actionable negligence for which a child
is liable.[6]
Practice Tip:
Absent evidence that the injury occurred because the child was acting in an unreasonable or dangerous manner,
however, the child will not be found negligent for engaging in play.[7]
[FN1] Osborne v. Sprowls, 83 Ill. App. 3d 968, 39 Ill. Dec. 474, 404 N.E.2d 1065 (3d Dist. 1980), judg-
ment aff'd, 84 Ill. 2d 390, 50 Ill. Dec. 645, 419 N.E.2d 913 (1981); Yount v. Johnson, 121 N.M. 585,
1996-NMCA-046, 915 P.2d 341 (Ct. App. 1996); Deliso v. Cangialosi, 117 Misc. 2d 105, 457 N.Y.S.2d

396 (N.Y. City Civ. Ct. 1982).
[FN2] Neumann v. Shlansky, 58 Misc. 2d 128, 294 N.Y.S.2d 628 (County Ct. 1968), order aff'd, 63
Misc. 2d 587, 312 N.Y.S.2d 951 (App. Term 1970), order aff'd, 36 A.D.2d 540, 318 N.Y.S.2d 925 (2d
Dep't 1971).
[FN3] Morrison v. Sudduth, 546 F.2d 1231 (5th Cir. 1977) (applying Texas law).
[FN4] Hoyt v. Rosenberg, 80 Cal. App. 2d 500, 182 P.2d 234, 173 A.L.R. 883 (4th Dist. 1947); Guzy v.
Gandel, 95 N.J. Super. 34, 229 A.2d 809 (App. Div. 1967); Carrillo v. Kreckel, 43 A.D.2d 499, 352
N.Y.S.2d 730 (4th Dep't 1974); Gentry v. Craycraft, 101 Ohio St. 3d 141, 2004-Ohio-379, 802 N.E.2d
1116 (2004).
[FN5] § 125.
[FN6] Yount v. Johnson, 121 N.M. 585, 1996-NMCA-046, 915 P.2d 341 (Ct. App. 1996); Deliso v.
Cangialosi, 117 Misc. 2d 105, 457 N.Y.S.2d 396 (N.Y. City Civ. Ct. 1982).
[FN7] Griffin v. Lardo, 247 A.D.2d 825, 668 N.Y.S.2d 837 (4th Dep't 1998); Schmoyer by Schmoyer v.
Mexico Forge, Inc., 437 Pa. Super. 159, 649 A.2d 705 (1994).
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Infants

1. In General
§ 123. Questions of law and fact
The age of capacity for negligence is a factual question determined by the mentality and maturity of the par-
ticular child;[1] the applicable standard of care varies from case to case and must be fixed by the jury in each
case according to the circumstances presented.[2] Consequently, whether a minor was negligent under a particu-
lar set of circumstances is ordinarily a question of fact for the jury[3] unless the child is of such tender years to
be conclusively presumed incapable of negligence as a matter of law.[4] A child's capacity to understand and
perceive the danger and risk inherent in his or her actions is a factual question,[5] as well as the determination of
whether the infant, at the time of the alleged wrong, had an intent of performing the physical act in question.[6]
In a negligence case, it is a question of fact for the jury whether a result is reasonably foreseeable to a child of
similar age, ability, intelligence, and experience.[7]
The presumption that minors between the ages of seven and 14 are incapable of negligence can be rebutted,[
8] and whether the presumption has been rebutted is similarly a question for trier of fact.[9]
[FN1] Brown v. Connolly, 62 Cal. 2d 391, 42 Cal. Rptr. 324, 398 P.2d 596, 11 A.L.R.3d 1348 (1965);
Cleveland Park Club v. Perry, 165 A.2d 485 (Mun. Ct. App. D.C. 1960); Peterson v. Taylor, 316
N.W.2d 869 (Iowa 1982); Hanks v. Booth, 11 Kan. App. 2d 149, 716 P.2d 596 (1986), opinion aff'd,
240 Kan. 30, 726 P.2d 1319 (1986).
[FN2] School City of Gary v. Claudio, 413 N.E.2d 628 (Ind. Ct. App. 1980).
[FN3] Hanks v. Booth, 11 Kan. App. 2d 149, 716 P.2d 596 (1986), opinion aff'd, 240 Kan. 30, 726 P.2d
1319 (1986); Southern v. Lyons, 696 So. 2d 128 (La. Ct. App. 3d Cir. 1997), writ denied, 703 So. 2d
617 (La. 1997); Tenney v. Taylor, 392 A.2d 1092 (Me. 1978); Camerlinck v. Thomas, 209 Neb. 843,
312 N.W.2d 260, 27 A.L.R.4th 1 (1981); Caparco v. Lambert, 121 R.I. 710, 402 A.2d 1180 (1979).

[FN4] § 124.
[FN5] Maynard by Maynard v. Indiana Harbor Belt Railroad Co., 997 F. Supp. 1128 (N.D. Ind. 1998);
Peterson v. Taylor, 316 N.W.2d 869 (Iowa 1982); Hanks v. Booth, 11 Kan. App. 2d 149, 716 P.2d 596
(1986), opinion aff'd, 240 Kan. 30, 726 P.2d 1319 (1986); Kuhns v. Brugger, 390 Pa. 331, 135 A.2d
395, 68 A.L.R.2d 761 (1957).
[FN6] Farm Bureau Mut. Ins. Co. of Arkansas, Inc. v. Henley, 275 Ark. 122, 628 S.W.2d 301 (1982);
Ellis v. D'Angelo, 116 Cal. App. 2d 310, 253 P.2d 675 (1st Dist. 1953); Cleveland Park Club v. Perry,
165 A.2d 485 (Mun. Ct. App. D.C. 1960); Jorgensen v. Nudelman, 45 Ill. App. 2d 350, 195 N.E.2d 422
(1st Dist. 1963).
[FN7] Bragan ex rel. Bragan v. Symanzik, 263 Mich. App. 324, 687 N.W.2d 881 (2004).
[FN8] § 124.
[FN9] Cates v. Kinnard, 255 Ill. App. 3d 952, 193 Ill. Dec. 460, 626 N.E.2d 770 (3d Dist. 1994).
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Infants

2. Effect of Age or Mental Capacity
§ 124. Generally; child of "tender years"
A.L.R. Library
While an infant generally is held to a standard of care of a child of similar age and experience,[1] a child of
very tender years may be found conclusively incapable of personal negligence as a matter of law.[2] This is true
even if the action was willful[3] although there is authority to the contrary.[4]
[FN1] § 121.
[FN2] Ellis v. K-Lan Co., Inc., 695 F.2d 157, 12 Fed. R. Evid. Serv. 157 (5th Cir. 1983); People v.
Berry, 1 Cal. App. 4th 778, 2 Cal. Rptr. 2d 416 (6th Dist. 1991), reh'g denied and opinion modified on
other grounds, (Jan. 10, 1992) (under five years old); Townsend v. Wright, 220 Ga. App. 324, 469
S.E.2d 281 (1996) (two years old); Jorgensen v. Nudelman, 45 Ill. App. 2d 350, 195 N.E.2d 422 (1st
Dist. 1963) (under seven); Mastland, Inc. v. Evans Furniture, Inc., 498 N.W.2d 682 (Iowa 1993) (two
years old); Fire Ins. Exchange v. Diehl, 206 Mich. App. 108, 520 N.W.2d 675 (1994) (under seven
years); Rider v. Speaker, 180 Misc. 2d 999, 692 N.Y.S.2d 920 (Sup 1999) (14 months old); Reid v. City
Coach Co., 215 N.C. 469, 2 S.E.2d 578, 123 A.L.R. 140 (1939) (two years old); DeLuca v. Bowden, 42
Ohio St. 2d 392, 71 Ohio Op. 2d 375, 329 N.E.2d 109 (1975) (under seven years old); Martin v. Hart-
ford Underwriters Ins. Co., 1996 OK 55, 918 P.2d 49 (Okla. 1996) (under seven); Berman By Berman
v. Philadelphia Bd. of Educ., 310 Pa. Super. 153, 456 A.2d 545, 9 Ed. Law Rep. 575 (1983) (under sev-
en years old); Thompson v. Wooten, 650 S.W.2d 499 (Tex. App. Houston 14th Dist. 1983), writ refused
n.r.e., (July 6, 1983) (under five years old); S.H. By and Through Robinson v. Bistryski, 923 P.2d 1376
(Utah 1996); Price v. Kitsap Transit, 69 Wash. App. 1069 (1993) (four years old); Pino v. Szuch, 185
W. Va. 476, 408 S.E.2d 55 (1991) (under seven years old).

A two- or three-year-old child is non sui juris as a matter of law. M.F. ex rel. Flowers v. Delaney, 37
A.D.3d 1103, 830 N.Y.S.2d 412 (4th Dep't 2007).
As to a presumption based on age, see § 127.
[FN3] Scarboro v. Lauk, 133 Ga. App. 359, 210 S.E.2d 848 (1974); DeLuca v. Bowden, 42 Ohio St. 2d
392, 71 Ohio Op. 2d 375, 329 N.E.2d 109 (1975).
As to willful injuries caused by an infant, generally, see § 117.
[FN4] Price v. Kitsap Transit, 125 Wash. 2d 456, 886 P.2d 556 (1994).
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Infants

§ 125. Factors to be considered; capacity to appreciate risk
In determining a child's capacity to be negligent, the actions of the child are judged by his or her maturity
and capacity to evaluate the circumstances,[1] and consideration is given to his or her ability to appreciate the
dangers and risks of the circumstances with which he or she is confronted.[2]
Observation:
If an infant is so young as to be manifestly incapable of exercising the qualities of attention, intelligence, and
judgment necessary to enable him or her to perceive a risk and to realize its unreasonable character, the child is
incapable of negligence.[3]
Tort liability may attach regardless of age[4] when the nature of the act is such that children of a like age
would realize its injurious consequences[5] or when the infant possesses the state of mind necessary for the
commission of the particular wrongful act with which he or she is charged.[6]
Caution:
While the actions of a child must be judged by his or her maturity and capacity to evaluate the circumstances, a
lack of mature judgment does not negate the ability to recognize or appreciate an obvious risk.[7]
[FN1] Southern v. Lyons, 696 So. 2d 128 (La. Ct. App. 3d Cir. 1997), writ denied, 703 So. 2d 617 (La.
1997); City of New York v. Stringfellow's of New York, Ltd., 253 A.D.2d 110, 684 N.Y.S.2d 544 (1st
Dep't 1999); Kirchoffner v. Quam, 264 N.W.2d 203 (N.D. 1978).
When a child is sui juris, he or she is capable of exercising some care and discretion but is not necessar-
ily held to the same degree of care required of a person of mature years. Maynard by Maynard v. Indi-
ana Harbor Belt Railroad Co., 997 F. Supp. 1128 (N.D. Ind. 1998).

[FN2] Horton v. Reaves, 186 Colo. 149, 526 P.2d 304 (1974); Daniels v. Dauphine, 557 So. 2d 1062
(La. Ct. App. 2d Cir. 1990), writ denied, 561 So. 2d 100 (La. 1990); Taylor v. Mathews, 40 Mich. App.
74, 198 N.W.2d 843 (1972); Ranard v. O'Neil, 166 Mont. 177, 531 P.2d 1000 (1975); Dorais v. Paquin,
113 N.H. 187, 304 A.2d 369 (1973); Lewis v. Dependent School Dist. No. 10 of Pottawatomie County,
Okl., 1990 OK CIV APP 115, 808 P.2d 710, 66 Ed. Law Rep. 1283 (Ct. App. Div. 1 1990).
[FN3] Hebard v. Mabie, 98 Ill. App. 543, 1901 WL 2158 (1st Dist. 1991) (five years old); Fromenthal
v. Clark, 442 So. 2d 608 (La. Ct. App. 1st Cir. 1983), writ denied, 444 So. 2d 1242 (La. 1984); Shaske
v. Hron, 266 Wis. 384, 63 N.W.2d 706 (1954) (under 5 ½).
(1930).
[FN5] Walker v. Kelly, 6 Conn. Cir. Ct. 715, 314 A.2d 785 (App. Div. 1973); Unkelsbee v. Homestead
Fire Ins. Co. of Baltimore, 41 A.2d 168 (Mun. Ct. App. D.C. 1945); Sampson by Sampson v. Zimmer-
man, 151 Ill. App. 3d 396, 104 Ill. Dec. 349, 502 N.E.2d 846 (2d Dist. 1986).
[FN6] Gibbs v. State Farm Mut. Ins. Co., 544 F.2d 423, 1 Fed. R. Evid. Serv. 566 (9th Cir. 1976); Ellis
v. D'Angelo, 116 Cal. App. 2d 310, 253 P.2d 675 (1st Dist. 1953).
[FN7] Hagy v. McHenry County Conservation Dist., 190 Ill. App. 3d 833, 137 Ill. Dec. 453, 546
N.E.2d 77 (2d Dist. 1989) (distinguished on other grounds by, Schellenberg v. Winnetka Park Dist., 231
Ill. App. 3d 46, 172 Ill. Dec. 814, 596 N.E.2d 93 (1st Dist. 1992)); Matthews v. State Farm Fire and
Cas. Ins. Co., 550 So. 2d 936 (La. Ct. App. 3d Cir. 1989).
rights reserved.
END OF DOCUMENT


Infants

§ 126. Factors to be considered; capacity to appreciate risk—Torts requiring particular intent and state of
mind
A.L.R. Library
When a tort requires a particular state of mind, and an infant, because of his or her age or mental capacity, is
incapable of forming the required state of mind, the infant cannot be found guilty of the tort.[1] When the only
intention necessary to the commission of a tort is the intention to perform the physical act in question, the infant
may be liable regardless of his or her age or capacity.[2]
Whether an infant, at the time of the alleged wrong, had an intent of performing the physical act in question,
or whether he or she had the ability to appreciate the danger, is a question of fact.[3]
[FN1] Ellis v. D'Angelo, 116 Cal. App. 2d 310, 253 P.2d 675 (1st Dist. 1953); Horton v. Reaves, 186
Colo. 149, 526 P.2d 304 (1974); Cleveland Park Club v. Perry, 165 A.2d 485 (Mun. Ct. App. D.C.
1960); Seaburg v. Williams, 16 Ill. App. 2d 295, 148 N.E.2d 49, 67 A.L.R.2d 562 (2d Dist. 1958);
Munden v. Harris, 153 Mo. App. 652, 134 S.W. 1076 (1911); Lacey v. Laird, 166 Ohio St. 12, 1 Ohio
Op. 2d 158, 139 N.E.2d 25 (1956).
As to the exclusion from liability for torts of children of tender years, see § 124.
[FN2] Ellis v. D'Angelo, 116 Cal. App. 2d 310, 253 P.2d 675 (1st Dist. 1953) (four years old); Cleve-
land Park Club v. Perry, 165 A.2d 485 (Mun. Ct. App. D.C. 1960); Jorgensen v. Nudelman, 45 Ill. App.
2d 350, 195 N.E.2d 422 (1st Dist. 1963); Kenney v. Barna, 215 Neb. 863, 341 N.W.2d 901 (1983);
Gymnastics USA v. McDougal, 92 Or. App. 453, 758 P.2d 881 (1988); Brown v. Dellinger, 355 S.W.2d
742 (Tex. Civ. App. Texarkana 1962), writ refused n.r.e., (June 20, 1962); Garratt v. Dailey, 46 Wash.

2d 197, 279 P.2d 1091 (1955) (five years old).
[FN3] § 123.
rights reserved.
END OF DOCUMENT


Infants

§ 127. Presumptions based on age
A.L.R. Library
Generally, minors under the age of seven years are conclusively presumed incapable of negligence as a mat-
ter of law.[1] Minors between the age of seven and 14 years are presumed incapable of negligence[2] although
the presumption is a rebuttable one that weakens as the 14th year is approached.[3] Minors over the age of 14
years are presumptively capable of negligence with the burden on the minor to prove his or her incapacity.[4]
Observation:
"Age," as used in the rebuttable presumption that a child under the age of seven is presumed to be incapable of
negligence, refers only to chronological age and not to mental capacity or maturity.[5]
In some jurisdictions, the presumption is rebuttable even for a child under the age of seven[6] or when the
conduct of a child of tender years was volitional and wrongful.[7]
The presumption applies both to issues of actionable negligence and of contributory negligence.[8] Like-
wise, the effects of immaturity are equally applicable to a minor plaintiff and a minor defendant; consequently,
the presumptions of negligence can assist a minor whether he or she is pursuing or defending a negligence cause
of action.[9]
The presumption is rebutted when the evidence indicates that the child did not exercise such care as children
of like age, education, experience. and prudence are accustomed to exercise under the same or similar circum-
stances.[10]

[FN1] Bragan ex rel. Bragan v. Symanzik, 263 Mich. App. 324, 687 N.W.2d 881 (2004); Stark ex rel.
Jacobsen v. Ford Motor Co., 693 S.E.2d 253 (N.C. Ct. App. 2010); Holman v. Licking Cty., 107 Ohio
App. 3d 106, 667 N.E.2d 1239 (5th Dist. Licking County 1995); Martin v. Hartford Underwriters Ins.
Co., 1996 OK 55, 918 P.2d 49 (Okla. 1996); Dunn v. Teti, 280 Pa. Super. 399, 421 A.2d 782 (1980);
S.H. By and Through Robinson v. Bistryski, 923 P.2d 1376 (Utah 1996); Price v. Kitsap Transit, 125
Wash. 2d 456, 886 P.2d 556 (1994).
[FN2] Cates v. Kinnard, 255 Ill. App. 3d 952, 193 Ill. Dec. 460, 626 N.E.2d 770 (3d Dist. 1994);
Foulke v. Beogher, 166 Ohio App. 3d 435, 2006-Ohio-1411, 850 N.E.2d 1269 (3d Dist. Marion County
2006); Montagazzi v. Crisci, 2010 PA Super 78, 994 A.2d 626 (2010).
[FN3] Cates v. Kinnard, 255 Ill. App. 3d 952, 193 Ill. Dec. 460, 626 N.E.2d 770 (3d Dist. 1994); Hol-
man v. Licking Cty., 107 Ohio App. 3d 106, 667 N.E.2d 1239 (5th Dist. Licking County 1995); Berman
By Berman v. Philadelphia Bd. of Educ., 310 Pa. Super. 153, 456 A.2d 545, 9 Ed. Law Rep. 575 (1983)
; Prater v. Burns, 525 S.W.2d 846 (Tenn. Ct. App. 1975).
There is not a rebuttable presumption under Indiana law that children between the ages of seven and 14
are capable of exercising some discretion and care. Maynard by Maynard v. Indiana Harbor Belt Rail-
road Co., 997 F. Supp. 1128 (N.D. Ind. 1998).
A party may rebut the presumption that a child between seven and 14 years of age is incapable of negli-
gence by demonstrating that the child is of sufficient maturity and capacity to avoid danger and make
intelligent judgments with regard to the particular activity in which he or she had engaged. Foulke v.
Beogher, 166 Ohio App. 3d 435, 2006-Ohio-1411, 850 N.E.2d 1269 (3d Dist. Marion County 2006).
[FN4] Hembree v. Spivey, 281 Ga. App. 693, 637 S.E.2d 94 (2006); Cedars ex rel. Cedars v. Waldon,
706 N.E.2d 219 (Ind. Ct. App. 1999); Montagazzi v. Crisci, 2010 PA Super 78, 994 A.2d 626 (2010);
Pino v. Szuch, 185 W. Va. 476, 408 S.E.2d 55 (1991).
All children over the age of 14, absent special circumstances, are chargeable with exercising the stand-
ard of care of an adult. Penn Harris Madison School Corp. v. Howard, 861 N.E.2d 1190, 216 Ed. Law
Rep. 931 (Ind. 2007).
[FN5] McCormick v. Hoddinott, 865 A.2d 523 (Del. Super. Ct. 2004).
[FN6] McCormick v. Hoddinott, 865 A.2d 523 (Del. Super. Ct. 2004); Peterson v. Taylor, 316 N.W.2d
869 (Iowa 1982); Hanks v. Booth, 11 Kan. App. 2d 149, 716 P.2d 596 (1986), opinion aff'd, 240 Kan.
30, 726 P.2d 1319 (1986); Camerlinck v. Thomas, 209 Neb. 843, 312 N.W.2d 260, 27 A.L.R.4th 1
(1981); DeRobertis by DeRobertis v. Randazzo, 94 N.J. 144, 462 A.2d 1260 (1983).
[FN7] Price v. Kitsap Transit, 125 Wash. 2d 456, 886 P.2d 556 (1994).
The age of a minor is not determinative of liability in a given "force type" tort situation as a matter of
law, but the liability of the minor can only be "negatived" by evidence as to his or her incapacity to pos-
sess an intention to do the act complained of. Shiflet v. Segovia, 40 Ohio App. 2d 244, 69 Ohio Op. 2d
221, 318 N.E.2d 876 (10th Dist. Franklin County 1974).
[FN8] Cusick v. Clark, 45 Ill. App. 3d 763, 4 Ill. Dec. 413, 360 N.E.2d 160 (3d Dist. 1977); Gladney v.

Cutrer, 440 So. 2d 938 (La. Ct. App. 2d Cir. 1983), writ denied, 443 So. 2d 596 (La. 1983); Lewis v.
Dependent School Dist. No. 10 of Pottawatomie County, Okl., 1990 OK CIV APP 115, 808 P.2d 710,
66 Ed. Law Rep. 1283 (Ct. App. Div. 1 1990); Dunn v. Teti, 280 Pa. Super. 399, 421 A.2d 782 (1980);
Pino v. Szuch, 185 W. Va. 476, 408 S.E.2d 55 (1991).
[FN9] Berman By Berman v. Philadelphia Bd. of Educ., 310 Pa. Super. 153, 456 A.2d 545, 9 Ed. Law
Rep. 575 (1983).
[FN10] Sorriento v. Ohio Dept. of Transp., 61 Ohio Misc. 2d 251, 577 N.E.2d 167 (Ct. Cl. 1988).
Merely showing that a child is a bright eight-year-old does not rebut the presumption that children
between ages of seven and 14 lack capacity to be negligent. Pino v. Szuch, 185 W. Va. 476, 408 S.E.2d
55 (1991).
rights reserved.
END OF DOCUMENT


Infants

3. When Adult Standard of Care Applicable
§ 128. Generally
While a minor generally is not held to the same standard of care as an adult,[1] if the trier of fact determines
that the infant's age, abilities, and experience require the application of the adult standard of care, the adult
standard will be applied.[2] For purposes of determining whether a minor will be held to an adult standard of
care, owing to the minor's participation in an adult activity, the question whether specific conduct constitutes an
"adult activity" is a question of law, determined on a case-by-case basis, depending on the facts in evidence re-
lating to the nature of the activity.[3]
[FN1] §§ 120 et seq.
[FN2] Kushnir v. Benson, 520 P.2d 134 (Colo. App. 1973); Campbell v. Morine, 223 Ill. App. 3d 678,
166 Ill. Dec. 176, 585 N.E.2d 1198 (3d Dist. 1992); Brown v. Smalls, 325 S.C. 547, 481 S.E.2d 444
(Ct. App. 1997).
[FN3] Hudson-Connor v. Putney, 192 Or. App. 488, 86 P.3d 106 (2004).
rights reserved.
END OF DOCUMENT


Infants

3. When Adult Standard of Care Applicable
§ 129. Potentially dangerous activities
A.L.R. Library
Age of minor operator of automobile or other motor-powered vehicle or craft as affecting his primary or
contributory negligence, 97 A.L.R.2d 872
Standard for judging conduct of minor motorist charged with gross negligence, recklessness, wilful or wan-
ton misconduct, or the like, under guest statute or similar common-law rule, 97 A.L.R.2d 861
The infant standard of care exception is inapplicable when a minor engages in adult or potentially dangerous
activities, such as the operation of a motor-powered vehicle or craft, and as to those activities, a minor is held to
the same standard of care as an adult.[1]
The building of a fire is not a "dangerous and adult activity" for which a minor should be charged with the
same standard of care as an adult.[2]
A minor is not liable as a social host for providing alcohol to another minor who is subsequently injured as
the result of his or her intoxicated condition.[3]
[FN1] Lemond Const. Co. v. Wheeler, 669 So. 2d 855 (Ala. 1995); Newman v. Crawford Const. Co.,
303 Ark. 641, 799 S.W.2d 531 (1990); Chu v. Bowers, 275 Ill. App. 3d 861, 212 Ill. Dec. 113, 656
N.E.2d 436 (3d Dist. 1995); Stevens v. Veenstra, 226 Mich. App. 441, 573 N.W.2d 341, 123 Ed. Law
Rep. 909 (1997); Root By and Through Root v. Mudd, 981 S.W.2d 651 (Mo. Ct. App. W.D. 1998);
Schomp v. Wilkens by Leen, 206 N.J. Super. 95, 501 A.2d 1036 (App. Div. 1985); Hudson-Connor v.
Putney, 192 Or. App. 488, 86 P.3d 106 (2004); Cook By and Through Uithoven v. Spinnaker's of River-
gate, Inc., 878 S.W.2d 934 (Tenn. 1994); Hoff v. Wedin, 170 Wis. 2d 443, 489 N.W.2d 646 (Ct. App.
1992), review denied.

[FN2] Farm Bureau Ins. Group v. Phillips, 116 Mich. App. 544, 323 N.W.2d 477 (1982).
[FN3] Kapres v. Heller, 536 Pa. 551, 640 A.2d 888 (1994).
rights reserved.
END OF DOCUMENT


Infants

4. Effect of Statutory Provisions
§ 130. Generally
In some jurisdictions, an infant's liability for tort is regulated by statute.[1] A statute providing that a minor
is civilly liable for a wrong done by him or her, but is not liable in exemplary damages unless at the time of the
act he or she was capable of knowing that it was wrongful, has been construed as intending that a minor should
be liable in compensatory damages for his or her tortious conduct even though he or she was not capable of
knowing the wrongful character of his or her act at the time of such act.[2]
When a minor inflicts injuries while acting in violation of a criminal or regulatory statute or ordinance, the
minor, like an adult,[3] may be held guilty of negligence as a matter of law without regard to his or her age and
capacity.[4] On the other hand, in some jurisdictions, a violation of a statute or ordinance by a child is not negli-
gence per se,[5] it being the jury's role to determine whether the violation of a statute or ordinance by a child
constitutes negligence considering his or her age, education, experience, and intelligence.[6]
A statutory provision may make the father and mother of a child responsible for the damage caused by their
unemancipated or minor children.[7]
[FN1] Ellis v. D'Angelo, 116 Cal. App. 2d 310, 253 P.2d 675 (1st Dist. 1953); Hatch v. O'Neill, 231
Ga. 446, 202 S.E.2d 44 (1973).
[FN2] Ellis v. D'Angelo, 116 Cal. App. 2d 310, 253 P.2d 675 (1st Dist. 1953).
As to compensatory damages, generally, see Am. Jur. 2d, Damages §§ 24 to 36.
As to exemplary damages, generally, see Am. Jur. 2d, Damages §§ 539 to 620.
[FN3] Am. Jur. 2d, Negligence §§ 674 to 758.

[FN4] Newman v. Crawford Const. Co., 303 Ark. 641, 799 S.W.2d 531 (1990).
[FN5] Rosenau v. City of Estherville, 199 N.W.2d 125 (Iowa 1972); Alley v. Siepman, 87 S.D. 670,
214 N.W.2d 7 (1974); Bauman by Chapman v. Crawford, 104 Wash. 2d 241, 704 P.2d 1181 (1985).
[FN6] Ruby v. Easton, 207 N.W.2d 10 (Iowa 1973); Bentley v. Stewart, 71 Ohio App. 3d 510, 594
N.E.2d 1061 (5th Dist. Muskingum County 1992).
As to questions of law and fact, generally, see § 123.
[FN7] Nalle v. State Farm Fire & Cas. Co., 702 So. 2d 854, 122 Ed. Law Rep. 1082 (La. Ct. App. 3d
Cir. 1997), writ denied, 706 So. 2d 994 (La. 1998).
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END OF DOCUMENT


Infants

4. Effect of Statutory Provisions
§ 131. Criminal liability immunity statutes
A statutory provision that an infant under a certain age cannot be found guilty of a crime or misdemeanor
does not affect the responsibility of the infant for his or her tortious conduct.[1] Such statutes, however, may act
to prevent a finding of "negligence per se" against an infant who inflicts injuries while acting in violation of a
criminal or regulatory statute or ordinance because the child could not be guilty of violating the criminal law.[2]
Even when a child is found negligent per se in acting contrary to state and local regulatory codes, public policy
may still preclude recovery against the minor.[3]
A statute providing that an infant under the age of criminal responsibility is immune from suit for tort does
not violate the due process clauses of the state and federal constitutions.[4] Likewise, a statute allowing a de-
fendant in a tort suit to show the negligence of a plaintiff under 13 years of age, but not allowing the plaintiff in
a tort suit to show the negligence of a 13-year-old defendant, does not violate the state or federal constitutional
equal protection clause.[5]
[FN1] Seaburg v. Williams, 16 Ill. App. 2d 295, 148 N.E.2d 49, 67 A.L.R.2d 562 (2d Dist. 1958); State
ex rel. Herget v. Circuit Court for Waukesha County, 84 Wis. 2d 435, 267 N.W.2d 309 (1978).
[FN2] Sorrells v. Miller, 218 Ga. App. 641, 462 S.E.2d 793 (1995).
[FN3] Clark v. Corby, 75 Wis. 2d 292, 249 N.W.2d 567 (1977).
[FN4] Horton v. Hinely, 261 Ga. 863, 413 S.E.2d 199 (1992).
[FN5] Barrett v. Carter, 248 Ga. 389, 283 S.E.2d 609 (1981).
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END OF DOCUMENT

AMJUR INFANTS V C REF Page 1
42 Am. Jur. 2d Infants V C Refs.

Infants

C. Torts Connected with Contracts
Research References
A.L.R. Library
Forms
Am. Jur. Pleading and Practice Forms, Infants § 101
rights reserved.
AMJUR INFANTS V C REF
END OF DOCUMENT


Infants

§ 132. Generally
As a general rule, an infant is civilly liable for his or her torts to the same extent as an adult, unless the tort
is connected with or arises out of a contract, in which case he or she may be found not liable.[1] However, that
an infant's tort arose out of, or was connected with, a contract does not always give immunity from liability for
the tort, as when the act is a distinct, willful, and positive wrong in itself.[2]
Observation:
The practical test for determining an infant's liability is not whether the tort arose out of or was connected with a
contract but whether the infant can be held liable for the tort without directly or indirectly enforcing the infant's
liability on the contract.[3]
If a breach of contract is the essence of the wrong complained of, the injured person cannot make it action-
able by bringing an action which technically sounds in tort,[4] nor can the negligence of one member of a joint
enterprise be imputed to another member of the enterprise, if he or she is a minor.[5]
[FN1] Faces, Inc. v. Kennedy, 185 N.J. Super. 113, 447 A.2d 592 (Law Div. 1981), judgment aff'd, 185
N.J. Super. 77, 447 A.2d 572 (App. Div. 1982); Central Bucks Aero, Inc. v. Smith, 23 Bucks 97 (Pa.
C.P. 1972), aff'd, 226 Pa. Super. 441, 310 A.2d 283 (1973).
As to an infant avoiding liability on his or her contracts, generally, see § 39.
[FN2] Smith v. Moschetti, 213 Ark. 968, 214 S.W.2d 73 (1948).
[FN3] Brooks v. Sawyer, 191 Mass. 151, 76 N.E. 953 (1906); Brown v. Wood, 293 Mich. 148, 291
N.W. 255, 127 A.L.R. 1436 (1940) (overruled in part on other grounds by, Pokriefka v. Mazur, 379
Mich. 348, 151 N.W.2d 806 (1967)); Brunhoelzl v. Brandes, 90 N.J.L. 31, 100 A. 163 (N.J. Sup. Ct.
1917); Collins v. Gifford, 203 N.Y. 465, 96 N.E. 721 (1911); Tennyson v. Kern, 76 S.D. 136, 74

N.W.2d 316 (1956); Lowery v. Cate, 108 Tenn. 54, 64 S.W. 1068 (1901); Covault v. Nevitt, 157 Wis.
113, 146 N.W. 1115 (1914).
[FN4] Slayton v. Barry, 175 Mass. 513, 56 N.E. 574 (1900); Sternlieb v. Normandie Nat. Securities
Corporation, 263 N.Y. 245, 188 N.E. 726, 90 A.L.R. 1437 (1934); Lowery v. Cate, 108 Tenn. 54, 64
S.W. 1068 (1901).
[FN5] Government Emp. Ins. Co. v. Edelman, 524 S.W.2d 546 (Tex. Civ. App. Beaumont 1975), writ
refused n.r.e.
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END OF DOCUMENT


Infants

§ 133. Acts of infant bailee
Forms
Am. Jur. Pleading and Practice Forms, Infants § 101 (Answer—Defense—By guardian ad litem—Infant not
liable for negligent breach of bailment)
A bailee's act or omission to act constituting a tort for which an adult bailee will be held responsible[1] will
not necessarily sustain a recovery against an infant bailee on the theory of tort since an infant cannot be held li-
able in tort for an act which is primarily and in substance merely a breach of a bailment contract.[2]
An infant bailee is not liable in tort for the damage caused to a bailed article by his or her want of care or
skill while using it for the stipulated purpose.[3]
An infant will be held liable in tort for the conversion of[4] or an injury to the bailed property when the loss
of or damage to the property is due to the infant's intentional or willful act[5] or when the infant departs materi-
ally from the object or terms of the bailment and that departure results in the loss of or damage to the property.[6
]
[FN1] Am. Jur. 2d, Bailments § 78.
[FN2] § 132.
[FN3] Jones v. Milner, 53 Ga. App. 304, 185 S.E. 586 (1936); Brunhoelzl v. Brandes, 90 N.J.L. 31, 100
A. 163 (N.J. Sup. Ct. 1917); Central Bucks Aero, Inc. v. Smith, 23 Bucks 97 (Pa. C.P. 1972), aff'd, 226
Pa. Super. 441, 310 A.2d 283 (1973).
[FN4] § 134.

[FN5] Smith v. Moschetti, 213 Ark. 968, 214 S.W.2d 73 (1948).
[FN6] Daugherty v. Reveal, 54 Ind. App. 71, 102 N.E. 381 (1913); Williams v. Buckler, 264 S.W.2d
279 (Ky. 1954); Miller v. Peck, 258 S.W. 887 (Tex. Civ. App. El Paso 1924), writ dismissed w.o.j.,
(Apr. 16, 1924).
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END OF DOCUMENT


Infants

§ 134. Conversion of goods by infant
Conversion is in its nature a tort; it is not an act of omission, but of commission, and is within the class of
offenses for which infancy affords no protection.[1] Generally, even though goods converted by an infant are in
the infant's possession by virtue of a contract, the infant will be held liable in tort for the conversion of those
goods.[2] There is, however, authority to the contrary.[3]
[FN1] Vasse v. Smith, 10 U.S. 226, 3 L. Ed. 207, 1810 WL 1610 (1810).
[FN2] Vasse v. Smith, 10 U.S. 226, 3 L. Ed. 207, 1810 WL 1610 (1810); Smith v. Moschetti, 213 Ark.
968, 214 S.W.2d 73 (1948); Daugherty v. Reveal, 54 Ind. App. 71, 102 N.E. 381 (1913); Williams v.
Buckler, 264 S.W.2d 279 (Ky. 1954); Miller v. Peck, 258 S.W. 887 (Tex. Civ. App. El Paso 1924), writ
dismissed w.o.j., (Apr. 16, 1924); Vermont Acceptance Corp. v. Wiltshire, 103 Vt. 219, 153 A. 199, 73
A.L.R. 792 (1931).
As to the acts constituting conversion, generally, see Am. Jur. 2d, Conversion § 20.
[FN3] Kozak v. Blake, 1979 Mass. App. Div. 340 (1979) (the defendant's minority was a defense to a
tort action for conversion of a motor vehicle engine from the plaintiff's automobile, which the infant
had contracted to repair).
For the tort liability of an infant bailee, see § 133.
rights reserved.
END OF DOCUMENT


Infants

§ 135. Fraud and misrepresentations which induce contract
An infant will be liable in tort for his or her fraud or misrepresentation;[1] the general rules governing ac-
tionable fraud are as applicable to minors as to adults.[2] According to some cases, however, an infant who
made misrepresentations to induce a contract is not liable in tort if the misrepresentations are in regard to the
subject matter of the contract, because such misrepresentations constitute part of the contract, for which the
minor cannot be held liable.[3]
There is authority that when the party defrauded by an infant in making a contract seeks to rescind the con-
tract on the ground of fraud,[4] and to recover the consideration he or she parted with under the contract, such
action, being based not on a contract but on fraud, is ex delicto rather than ex contractu[5] even when the action
is brought in the form of assumpsit.[6]
[FN1] Faces, Inc. v. Kennedy, 185 N.J. Super. 113, 447 A.2d 592 (Law Div. 1981), judgment aff'd, 185
N.J. Super. 77, 447 A.2d 572 (App. Div. 1982).
[FN2] Bunkie Bank & Trust Co. v. Johnston, 385 So. 2d 1264 (La. Ct. App. 3d Cir. 1980).
As to the elements of actionable fraud, see Am. Jur. 2d, Fraud and Deceit § 22.
As to whether an infant is estopped from avoiding a contract which is induced by his or her misrepres-
entations, see §§ 100 to 103.
(1930).
As to an infant's ability to avoid contractual liability, see § 74.
[FN4] § 74.

[FN5] Beardsley v. Clark, 229 Iowa 601, 294 N.W. 887 (1940).
[FN6] Patterson v. Kasper, 182 Mich. 281, 148 N.W. 690 (1914).
As to assumpsit, generally, see Am. Jur. 2d, Actions § 15.
rights reserved.
END OF DOCUMENT


Infants

§ 136. Fraud and misrepresentations which induce contract—As to the infant's age
The courts are not in agreement whether an infant is liable in tort for misrepresenting his or her age to in-
duce another to contract with him or her.[1] According to some decisions, an infant is not liable in tort for
falsely representing his or her age to induce a contract[2] because to make him or her liable for his or her deceit
would be equivalent to enforcing the contract, for which he or she is not liable under the policy of the law.[3]
Other cases hold that an infant is liable in tort in such cases,[4] irrespective of whether any benefit accrues
to the infant from the contract.[5]
The fraud for which an infant may be held liable to one who contracts with the infant in the belief that he or
she is of full age must be actual, not constructive, and the mere failure of the infant to disclose his or her age is
not sufficient to hold him or her liable.[6] To recover damages in tort, however, the other party is not under a
duty to investigate and ascertain the infant's true age, despite his or her misrepresentation.[7]
The measure of damages recoverable in such case is not the money equivalent of the performance of the
contract but is the amount required to restore the injured person to his or her previous position,[8] such as the
money equivalent of what has been obtained from him or her.[9]
While a minor will be held liable for intentionally and falsely representing himself or herself to be adult,[10
] such liability will not attach to the infant for the damages suffered by a liquor licensee who suffers lost profits
due to a license suspension for serving minors when the licensee failed to get a written representation as to the
age of the minor (i.e., proof of age in the form of identification) after the minor's oral or prior misrepresentation
as to his or her age.[11]
[FN1] §§ 101 to 103.
[FN2] Raymond v. General Motorcycle Co., 230 Mass. 54, 119 N.E. 359 (1918); Sternlieb v. Norman-
die Nat. Securities Corporation, 263 N.Y. 245, 188 N.E. 726, 90 A.L.R. 1437 (1934); Greensboro Mor-

ris Plan Co. v. Palmer, 185 N.C. 109, 116 S.E. 261 (1923).
[FN3] Greensboro Morris Plan Co. v. Palmer, 185 N.C. 109, 116 S.E. 261 (1923).
As to an infant's ability to avoid contractual liability, see § 74.
[FN4] Byers v. Lemay Bank & Trust Co., 365 Mo. 341, 282 S.W.2d 512 (1955); Wisconsin Loan &
Finance Corp. v. Goodnough, 201 Wis. 101, 228 N.W. 484, 67 A.L.R. 1259 (1930).
(1930).
(1930).
As to the distinction between actual and constructive fraud, see Am. Jur. 2d, Fraud and Deceit § 8.
[FN7] Royal Finance Co. v. Schaefer, 330 S.W.2d 129 (Mo. Ct. App. 1959).
[FN8] Byers v. Lemay Bank & Trust Co., 365 Mo. 341, 282 S.W.2d 512 (1955); Wisconsin Loan &
Finance Corp. v. Goodnough, 201 Wis. 101, 228 N.W. 484, 67 A.L.R. 1259 (1930).
(1930).
[FN10] Ray's Liquors, Inc. v. Newland, 52 Ill. App. 3d 680, 10 Ill. Dec. 373, 367 N.E.2d 982 (2d Dist.
1977).
[FN11] Ray's Liquors, Inc. v. Newland, 52 Ill. App. 3d 680, 10 Ill. Dec. 373, 367 N.E.2d 982 (2d Dist.
1977); Faces, Inc. v. Kennedy, 185 N.J. Super. 113, 447 A.2d 592 (Law Div. 1981), judgment aff'd, 185
N.J. Super. 77, 447 A.2d 572 (App. Div. 1982).
As to the revocation of a liquor license for serving underage customers, see Am. Jur. 2d, Intoxicating
Liquors § 156.
rights reserved.
END OF DOCUMENT

AMJUR INFANTS VI A REF Page 1
42 Am. Jur. 2d Infants VI A Refs.

Infants
VI. Actions
A. In General
Research References
West's Key Number Digest, Infants 32.1 to 34, 70 to 75, 78(1), 88
A.L.R. Library
West's A.L.R. Digest, Infants 32.1 to 34, 70 to 75, 78(1), 88
Forms
Am. Jur. Pleading and Practice Forms, Infants § 64
rights reserved.
AMJUR INFANTS VI A REF
END OF DOCUMENT


Infants
VI. Actions
A. In General
1. In General
§ 137. Generally
West's Key Number Digest, Infants 32.1 to 34, 70 to 75, 88
An infant may sue and be sued[1] provided that he or she is properly represented by a legally authorized
person.[2] Children enjoy the same right to protection and to legal redress for wrongs done them as others en-
joy.[3]
Generally, public policy dictates that courts should carefully guard the rights of minors and that a minor
should not be precluded from enforcing his or her rights unless clearly barred from doing so.[4]
[FN1] Pintek v. Superior Court In and For Cochise County, 78 Ariz. 179, 277 P.2d 265 (1954); Armes
v. Thompson, 222 S.W.3d 79 (Tex. App. Eastland 2006).
[FN2] §§ 148 to 150.
[FN3] Remy v. MacDonald, 440 Mass. 675, 801 N.E.2d 260 (2004).
[FN4] DeLuna v. Burciaga, 223 Ill. 2d 49, 306 Ill. Dec. 136, 857 N.E.2d 229 (2006).
rights reserved.
END OF DOCUMENT


Infants
VI. Actions
A. In General
1. In General
§ 138. Requirement of procedural capacity
A minor is not sui juris and generally may not sue or be sued except as the local rules of procedure provide.[
1] In some jurisdictions, the view is taken that minors lack the capacity to sue in their own names.[2]
Observation:
There is a difference between the capacity to sue, which is the right to come into court, and standing to bring a
cause of action, which is the right to relief in court; incapacity to sue exists when there is some legal disability
such as infancy or lunacy or a want of title in the plaintiff to the character in which he or she sues.[3] Although a
minor, incompetent, or estate may have suffered an injury and thus have a justiciable interest in the controversy,
these parties lack the legal authority to sue; the law therefore grants another party the capacity to sue on their be-
half.[4]
Generally, infants do not have the procedural capacity to sue,[5] and some courts have held that a minor has
no standing to sue before he or she reaches the age of majority.[6] An infant is under a legal disability and is not
competent to personally bring an action on his or her own behalf, nor defend an action brought against him or
her, but must be represented in such a legal proceeding by a legally authorized person.[7] The rule allowing a
representative to sue or defend on behalf of a child in his or her own name allows a parent to be a party to his or
her child's suit by representing his or her child's interests through control of litigation in the role of client.[8]
The parent having primary residential custody is the one who has standing to bring a suit on behalf of the child
for an alleged injury to the child.[9]
Parents are not indispensable parties without whom complete adjudication cannot be made in a medical mal-
practice action involving an infant but rather parents are at most joint obligees whose presence in the proceed-
ings is not absolutely necessary.[10]

[FN1] Vandewater v. American General Fire and Cas. Co., 890 S.W.2d 811 (Tex. App. Austin 1994),
judgment rev'd on other grounds, 907 S.W.2d 491 (Tex. 1995) and writ granted, (June 15, 1995); Bel-
levue School Dist. v. E.S., 148 Wash. App. 205, 199 P.3d 1010, 240 Ed. Law Rep. 925 (Div. 1 2009),
review granted, 166 Wash. 2d 1011, 210 P.3d 1018 (2009).
As to representation of infant, generally, see §§ 148 to 158.
[FN2] Safai v. Safai, 164 Cal. App. 4th 233, 78 Cal. Rptr. 3d 759 (6th Dist. 2008); Armes v. Thompson,
222 S.W.3d 79 (Tex. App. Eastland 2006).
[FN3] Hudis v. Crawford, 125 Cal. App. 4th 1586, 24 Cal. Rptr. 3d 50 (6th Dist. 2005).
[FN4] Austin Nursing Center, Inc. v. Lovato, 171 S.W.3d 845 (Tex. 2005).
[FN5] Boudreaux v. Entrekin, 643 So. 2d 1309 (La. Ct. App. 5th Cir. 1994); Dye by Dye v. Fremont
County School Dist. No. 24, 820 P.2d 982, 71 Ed. Law Rep. 570 (Wyo. 1991).
[FN6] Fender v. Miles, 185 Ohio App. 3d 136, 2009-Ohio-6043, 923 N.E.2d 631 (12th Dist. Brown
County 2009).
[FN7] Pintek v. Superior Court In and For Cochise County, 78 Ariz. 179, 277 P.2d 265 (1954); Americ-
an Alternative Energy Partners II v. Windridge, Inc., 42 Cal. App. 4th 551, 49 Cal. Rptr. 2d 686 (5th
Dist. 1996); Bartlett v. Elgin, 973 P.2d 694 (Colo. App. 1998), judgment aff'd, 994 P.2d 411 (Colo.
1999); Shockley v. Okeke, 92 Conn. App. 76, 882 A.2d 1244 (2005); Kingsley v. Kingsley, 623 So. 2d
780 (Fla. Dist. Ct. App. 5th Dist. 1993); Cozine v. Bonnick, 245 S.W.2d 935 (Ky. 1952); Boudreaux v.
Entrekin, 643 So. 2d 1309 (La. Ct. App. 5th Cir. 1994); Easton v. Eaton, 112 Me. 106, 90 A. 977 (1914)
; Prudential Ins. Co. v. Gleason, 185 Miss. 243, 187 So. 229 (1939); In re W.J.S.M., 231 S.W.3d 278
(Mo. Ct. App. E.D. 2007); Lockenour v. Sculley ex rel. Sculley, 8 Neb. App. 254, 592 N.W.2d 161
(1999); Armes v. Thompson, 222 S.W.3d 79 (Tex. App. Eastland 2006).
As to the duty of the general guardian of an infant to defend an action brought against the infant, see
Am. Jur. 2d, Guardian and Ward § 159.
As to the need for and appointment of a legal representative, see §§ 148 to 158.
[FN8] Chisholm v. Rueckhaus, 124 N.M. 255, 1997-NMCA-112, 948 P.2d 707 (Ct. App. 1997).
[FN9] Gordon v. Colin, 997 So. 2d 1136 (Fla. Dist. Ct. App. 4th Dist. 2008).
[FN10] Snowden v. Huey P. Long Memorial Hosp. Through State, Dept. of Health and Human Re-
sources, 581 So. 2d 287 (La. Ct. App. 3d Cir. 1991), writ denied, 583 So. 2d 483 (La. 1991).
As to indispensable parties, generally, see Am. Jur. 2d, Parties § 11.
rights reserved.

END OF DOCUMENT


Infants
VI. Actions
A. In General
1. In General
§ 139. Plenary jurisdiction for supervision and protection
West's Key Number Digest, Infants 32.1 to 34, 73
Historically, courts have possessed inherent and statutory authority to protect children, and minors are
wards of the court with inherent power in the court to protect them.[1] It is the court's responsibility to protect
the rights of a minor who is a litigant in court[2] even if the minor's parent objects to a court's actions.[3]
Courts of equity have plenary jurisdiction over the persons and estates of infants and will in the exercise of
that jurisdiction cause to be done whatever may be necessary to preserve their estates and protect their interest.[4
] Public policy dictates that courts should guard carefully the rights of infants and that an infant should not be
precluded from enforcing his or her rights unless clearly debarred from doing so by a statute or constitutional
provision.[5] Thus, a trial court is afforded broad discretionary authority in cases involving infants,[6] and every
presumption is indulged in favor of the minor.[7]
Although a court may not afford to an infant a greater right than the law permits, the court must, in the exer-
cise of its equitable duties, ensure that an infant's interests are protected and that an infant obtains no less than
the law allows.[8] It is inappropriate for a court to consider the application of those doctrines which promote
mere judicial efficiency at the expense of a child's welfare[9] as procedural rules are subservient to the court's
duty to zealously guard the rights of minors.[10]
The power to appoint a guardian ad litem for an infant defendant in a civil action is inherent in every court
of justice.[11]
Observation:
A minor involved in litigation is a ward of the court[12] and remains so until the cause of action is tried, adjus-
ted, or compromised.[13]
[FN1] § 24.

[FN3] Williams v. Superior Court, 147 Cal. App. 4th 36, 54 Cal. Rptr. 3d 13 (4th Dist. 2007).
[FN4] In re Estate of Green, 359 Ill. App. 3d 730, 296 Ill. Dec. 369, 835 N.E.2d 403 (1st Dist. 2005).
[FN5] Godfrey v. Washington, 653 A.2d 371 (D.C. 1995); DeLuna v. Burciaga, 223 Ill. 2d 49, 306 Ill.
Dec. 136, 857 N.E.2d 229 (2006).
Dist. 2005); Chisholm v. Rueckhaus, 124 N.M. 255, 1997-NMCA-112, 948 P.2d 707 (Ct. App. 1997).
As to the discretion to appoint a guardian or representative, see § 152.
[FN9] A.E. v. Christean, 938 P.2d 811 (Utah Ct. App. 1997).
[FN10] Mr. T v. Ms. T, 378 S.C. 127, 662 S.E.2d 413 (Ct. App. 2008), cert. denied, (Feb. 20, 2009).
[FN11] Fernandez-Vargas v. Pfizer, 522 F.3d 55 (1st Cir. 2008); Hatch v. Riggs Nat. Bank, 361 F.2d
559 (D.C. Cir. 1966); Martin v. Pierce, 370 Ark. 53, 257 S.W.3d 82 (2007); Simms v. State, Dept. of
Health & Rehabilitative Services, 641 So. 2d 957 (Fla. Dist. Ct. App. 3d Dist. 1994); Adoption of
Thomas, 408 Mass. 446, 559 N.E.2d 1230 (1990); Collins on Behalf of Collins v. Tabet, 111 N.M. 391,
806 P.2d 40, 14 A.L.R.5th 1094 (1991); State ex rel. Friedrich v. Circuit Court for Dane County, 192
Wis. 2d 1, 531 N.W.2d 32 (1995).
As to the necessity of the appointment of a guardian ad litem for an infant, see § 151.
[FN12] First Nat. Bank of LaGrange v. Lowrey, 375 Ill. App. 3d 181, 313 Ill. Dec. 464, 872 N.E.2d 447
(1st Dist. 2007).
rights reserved.
END OF DOCUMENT


Infants
VI. Actions
A. In General
1. In General
§ 140. Plenary jurisdiction for supervision and protection—Judicial approval of compromise or settle-
ment; investigation or hearing
West's Key Number Digest, Infants 32.1 to 34, 73
The court in which litigation involving an infant is pending has the power to sanction a compromise of the
infant's claim[1] whether the compromise was negotiated by the infant's next friend or guardian ad litem[2] or
attorney.[3]
Whenever a court is called upon to sanction a compromise of an infant's claim or to enter a consent judg-
ment upon the basis of such a compromise, it is bound to investigate the fairness of the compromise and whether
its terms are for the interest of the infant[4] even if the infant is represented by counsel.[5]
Practice Tip:
Even if the parties and a court-appointed guardian ad litem agree to a settlement, a judgment ratifying the com-
promise cannot be rendered without a hearing and evidence that the settlement serves the minor's best interest.[6
]
It will be presumed that such a compromise is approved by the court after such an investigation, absent any
showing to the contrary.[7]
[FN1] Bent v. Miranda, 168 U.S. 471, 18 S. Ct. 940, 42 L. Ed. 547 (1897); Stahl v. Rhee, 220 A.D.2d
39, 643 N.Y.S.2d 148 (2d Dep't 1996); Hunter v. Newsom, 121 N.C. App. 564, 468 S.E.2d 802 (1996).
[FN2] § 175.
[FN3] § 184.
[FN4] Thompson v. Maxwell Land-Grant & Railway, Co, 168 U.S. 451, 18 S. Ct. 121, 42 L. Ed. 539

(1897); In re Abrams & Abrams, P.A., 605 F.3d 238 (4th Cir. 2010) (applying North Carolina law);
Phillips v. Meadow Garden Hospital, Inc., 139 Ga. App. 541, 228 S.E.2d 714 (1976); Burton by Burton
v. Estrada, 149 Ill. App. 3d 965, 103 Ill. Dec. 233, 501 N.E.2d 254 (1st Dist. 1986); Hammond v.
Weiss, 46 Mich. App. 717, 208 N.W.2d 578 (1973); Robinson v. Gatch, 85 Ohio App. 484, 40 Ohio Op.
345, 54 Ohio L. Abs. 437, 87 N.E.2d 904 (1st Dist. Hamilton County 1949); Peoples Nat. Bank of Rock
Hill, S. C. v. Rogers, 218 S.C. 11, 61 S.E.2d 391 (1950).
As to failure to investigate as a ground for overturning the judgment, see §§ 211, 212.
[FN5] Dearing v. Speedway Realty Co., 111 Ind. App. 585, 40 N.E.2d 414 (1942).
As to whether and when a judgment entered on the basis of a compromise of an infant's claim may be
vacated or set aside by the infant, see § 212.
(1897); Burke v. Northern Pac. Ry. Co., 86 Wash. 37, 149 P. 335 (1915).
rights reserved.
END OF DOCUMENT


Infants
VI. Actions
A. In General
1. In General
§ 141. Effect of reaching majority during pendency of action
Although the authority of a next friend to represent an infant plaintiff in the conduct of a cause expires with
the minority of the infant,[1] an infant's action instituted by his or her next friend or guardian ad litem does not
abate by the infant's coming of age while the action is pending but may be continued by the infant if he or she so
elects.[2]
If an infant plaintiff comes of age during the pendency of the action and thereupon manifests by his or her
conduct in the cause an adoption or ratification of the proceedings that have been taken, any right on the infant's
part to avoid the judgment is lost thereby.[3] There is also authority for the view that the objection that the infant
plaintiff sued without representation by a legally authorized person is not available to the defendant if the infant
attains majority during the pendency of the action and thereupon manifests by his or her conduct in the case an
adoption or ratification of the action so erroneously commenced.[4]
[FN1] § 162.
[FN2] Bernard v. Pittsburg Coal Co., 137 Mich. 279, 100 N.W. 396 (1904); Webb v. Harris, 1912 OK
80, 32 Okla. 491, 121 P. 1082 (1912); Connor v. Ashley, 57 S.C. 305, 35 S.E. 546 (1900); Spell v. Wil-
liam Cameron & Co., 62 Tex. Civ. App. 471, 131 S.W. 637 (1910), writ refused.
As to abatement of suits in general, see Am. Jur. 2d, Abatement, Survival, and Revival § 1.
[FN3] Johnston v. Southern Pac. Co., 150 Cal. 535, 89 P. 348 (1907).
[FN4] § 167.
rights reserved.

END OF DOCUMENT


Infants
VI. Actions
A. In General
2. Form of Action
§ 142. Generally
Forms
Am. Jur. Pleading and Practice Forms, Infants § 64 (Complaint, petition, or declaration—Of infant suing by
guardian ad litem or next friend—Outline form)
Whether an action may be brought in the name of an infant as plaintiff, or against the infant as defendant, is
governed by the same general rules applicable in other cases to determine the proper parties to an action.[1]
However, when an infant's rights are involved, there are additional issues as to whether the proper party to the
action is the infant or some other person acting on his or her behalf such as a general guardian[2] or parent.[3]
A cause or right of action of parents resulting from injury to a child is distinct from the cause of action of
the child.[4] Statutory law may provide that only the parent maintains the right to sue on a particular subject
matter involving an infant.[5] Statutory authority may also allow a child to institute and prosecute suits absent
consent by, and contrary to the wishes of, his or her parents.[6]
[FN1] Am. Jur. 2d, Parties §§ 5 to 52.
[FN2] Am. Jur. 2d, Guardian and Ward §§ 152 to 154.
[FN4] Goodwin v. Hobza, 17 Neb. App. 353, 762 N.W.2d 623 (2009).
[FN5] Dewey v. Zack, 272 Ill. App. 3d 742, 209 Ill. Dec. 465, 651 N.E.2d 643 (2d Dist. 1995) (medical
expenses).

As to pleading matters, generally, see §§ 198 to 200.
[FN6] Buckholz v. Leveilee, 37 Mich. App. 166, 194 N.W.2d 427 (1971).
As to the need for representation, generally, see § 148.
rights reserved.
END OF DOCUMENT


Infants
VI. Actions
A. In General
2. Form of Action
§ 143. Actions in contract
When an infant makes a contract, he or she has a right to the performance by the other party and also a right
to sue such other party for a breach of the contract.[1] An action for breach of the contract may be maintained in
the name of the infant.[2]
In an action upon a contract made by an infant, the infant may be named as defendant[3] although the con-
tract sued on may be voidable by the infant upon the ground of infancy[4] and avoidance on such ground is a de-
fense which may be pleaded.[5]
[FN1] § 42.
[FN2] American Film Co. v. Reilly, 278 F. 147 (C.C.A. 9th Cir. 1922); Shaw v. Philbrick, 129 Me. 259,
151 A. 423, 74 A.L.R. 290 (1930); Cummings v. United Fuel Gas Co., 116 W. Va. 599, 182 S.E. 789,
102 A.L.R. 264 (1935).
[FN3] Jacobs v. Maryland Casualty Co., 198 A.D. 470, 191 N.Y.S. 692 (3d Dep't 1921), aff'd, 234 N.Y.
622, 138 N.E. 472 (1922).
[FN4] § 39.
[FN5] § 199.
rights reserved.

END OF DOCUMENT


Infants
VI. Actions
A. In General
2. Form of Action
§ 144. Actions in tort
A.L.R. Library
What items of damages on account of personal injury to infant belong to him, and what to parent, 32
A.L.R.2d 1060
When a child is injured, two causes of action arise: the minor's claim for damages for personal injuries and
the parents' claim for loss of services and companionship of the child and the expenses necessarily incurred by
them for the minor's medical treatment.[1]
A child, or the parents suing on behalf of an unemancipated child, may bring suit to recover damages to the
child resulting from a personal injury, such as pain and suffering and physical disfigurement.[2] A child that suf-
fers prenatal injury at the hands of another may sue for those personal injuries upon birth, a right that did not ex-
ist at common law.[3] An action for tortious injuries to an infant may be maintained in his or her name[4] al-
though the elements of the damages recoverable by the infant in such case may sometimes be limited because of
the rights of the parent.[5] In some jurisdictions, however, a minor cannot bring such a suit in his or her own
name.[6]
The common-law rule that an infant may maintain an action for injuries in tort is not affected by a statute
providing that a parent may maintain an action for the death or injury of a minor child.[7]
Although a parent may be statutorily permitted to bring a suit for injuries sustained by a minor child, the
right to sue for those damages belongs to the minor.[8]
Practice Tip:
No obvious or inherent conflict of interest exists when a parent brings one suit for loss of services and another
suit on behalf of the child for the child's personal injury.[9]

[FN1] Hutto v. BIC Corp., 800 F. Supp. 1367 (E.D. Va. 1992) (applying Virginia law); Pepper v. Johns
Hopkins Hosp., 111 Md. App. 49, 680 A.2d 532 (1996), aff'd, 346 Md. 679, 697 A.2d 1358 (1997);
Kearbey by Kearbey v. Kinder, 972 S.W.2d 575 (Mo. Ct. App. S.D. 1998); Goodwin v. Hobza, 17 Neb.
App. 353, 762 N.W.2d 623 (2009); Hogle v. Hall By and Through Evans, 112 Nev. 599, 916 P.2d 814
(1996); Moquin v. Hedrick, 163 N.C. App. 345, 593 S.E.2d 435 (2004); Slusher v. Ohio Valley Propane
Servs., 177 Ohio App. 3d 852, 2008-Ohio-41, 896 N.E.2d 715 (4th Dist. Pike County 2008); Baumann
v. Capozio, 269 Va. 356, 611 S.E.2d 597 (2005); Joseph W. v. Catholic Diocese of Madison, 212 Wis.
2d 925, 569 N.W.2d 795 (Ct. App. 1997).
[FN2] Miller v. U.S., 803 F. Supp. 1120 (E.D. Va. 1992) (applying California law).
[FN3] Am. Jur. 2d, Prenatal Injuries; Wrongful Life, Birth, or Conception § 16.
[FN4] Birmingham Ry., Light & Power Co. v. Baker, 161 Ala. 135, 49 So. 755 (1909); Pawnee Farm-
ers' Elevator Co. v. Powell, 76 Colo. 1, 227 P. 836, 37 A.L.R. 6 (1924); Shoemaker v. Jackson, 128
Iowa 488, 104 N.W. 503 (1905); Louisville, H. & St. L. Ry. Co. v. Lyons, 156 Ky. 222, 160 S.W. 942
(1913); Yost v. Grand Trunk Ry. Co., 163 Mich. 564, 128 N.W. 784 (1910); Clarke v. Eighth Ave. R.
Co., 238 N.Y. 246, 144 N.E. 516, 37 A.L.R. 1 (1924).
[FN6] Bullock v. Dioguardi, 847 F. Supp. 553 (N.D. Ill. 1993) (applying Illinois law).
[FN7] Walker v. Burkham, 63 Nev. 75, 165 P.2d 161 (1946).
[FN8] Hogle v. Hall By and Through Evans, 112 Nev. 599, 916 P.2d 814 (1996).
[FN9] Johnson v. Johnson, 1993 OK CIV APP 28, 848 P.2d 72 (Ct. App. Div. 3 1993).
rights reserved.
END OF DOCUMENT


Infants
VI. Actions
A. In General
2. Form of Action
§ 145. Claim for medical expenses
Generally, a minor child does not have a cause of action for his or her medical expenses because the parents
possess the exclusive right to recover for a minor's premajority medical expenses.[1] Since it is the parents' legal
duty and obligation to provide their child's necessaries, the action to recover medical expenses of a child is ves-
ted exclusively in the child's parents.[2] However, exceptions exist to this general rule that an injured minor may
not recover for his or her medical expenses,[3] and he or she may recover those expenses when—
— the minor child has paid or agreed to pay them.[4]
— the child is legally responsible for their payment, such as by reason of emancipation, or the death or in-
competency of his or her parents.[5]
— the child is personally liable for payment of the expenses because his or her parents cannot afford to pay
them.[6]
— the infant's obligations arise from the doctrine that medical expenses are necessaries.[7]
— the parents have waived or assigned their right of recovery in favor of a minor child.[8]
— the parents are barred from asserting a claim for a minor's medical expenses due to the statute of limita-
tions.[9]
— recovery of medical expenses by the infant is permitted by statute.[10]
Caution:
Although parents may assign their cause of action for medical expenses against a tortfeasor who injured their
child to their child, the child must prove that his or her parents had a cause of action, and the child is subject to
any defenses that could have been raised against his or her parents.[11]

Cases:
Because parents have the responsibility to pay medical expenses incurred in the treatment of their minor
children, the right to recover damages for medical expenses incurred in such treatment is vested exclusively in a
minor child's parents. Anderson v. Jones, 745 S.E.2d 787 (Ga. Ct. App. 2013).
[END OF SUPPLEMENT]
[FN1] Clardy v. ATS, Inc. Employee Welfare Benefit Plan, 921 F. Supp. 394 (N.D. Miss. 1996)
(applying Mississippi law); National Bank of Commerce v. Quirk, 323 Ark. 769, 918 S.W.2d 138
(1996); Dewey v. Zack, 272 Ill. App. 3d 742, 209 Ill. Dec. 465, 651 N.E.2d 643 (2d Dist. 1995); Pepper
v. Johns Hopkins Hosp., 111 Md. App. 49, 680 A.2d 532 (1996), aff'd, 346 Md. 679, 697 A.2d 1358
(1997); Eaves v. Boswell, 852 S.W.2d 353 (Mo. Ct. App. S.D. 1993); People v. Barnett, 17 Misc. 3d
505, 844 N.Y.S.2d 662 (County Ct. 2007); Byank v. Ski Liberty, 39 Pa. D. & C.4th 255, 1999 WL
483262 (C.P. 1999).
[FN2] Capp v. Carlito's Mexican Bar & Grill No. 1, Inc., 288 Ga. App. 779, 655 S.E.2d 232 (2007).
[FN3] Laughner v. Bryne, 18 Cal. App. 4th 904, 22 Cal. Rptr. 2d 671 (2d Dist. 1993).
[FN4] Hutto v. BIC Corp., 800 F. Supp. 1367 (E.D. Va. 1992) (applying Virginia law); Pepper v. Johns
Hopkins Hosp., 111 Md. App. 49, 680 A.2d 532 (1996), aff'd, 346 Md. 679, 697 A.2d 1358 (1997).
As to the obligation to pay for expenses as a "necessary," see § 70.
[FN5] Hutto v. BIC Corp., 800 F. Supp. 1367 (E.D. Va. 1992) (applying Virginia law); State ex rel.
Packard v. Perry, 221 W. Va. 526, 655 S.E.2d 548 (2007).
[FN6] Lopez v. Cole, 214 Ariz. 536, 155 P.3d 1060 (Ct. App. Div. 1 2007).
[FN7] Johns Hopkins Hosp. v. Pepper, 346 Md. 679, 697 A.2d 1358 (1997).
As to necessaries, generally, see § 60.
[FN8] Hutto v. BIC Corp., 800 F. Supp. 1367 (E.D. Va. 1992) (applying Virginia law); Estate of De-
Sela v. Prescott Unified School Dist. No. 1, 224 Ariz. 202, 228 P.3d 938, 255 Ed. Law Rep. 991 (Ct.
App. Div. 1 2010), as amended, (May 27, 2010); Myer v. Dyer, 643 A.2d 1382 (Del. Super. Ct. 1993);
Bauer ex rel. Bauer v. Memorial Hosp., 377 Ill. App. 3d 895, 316 Ill. Dec. 411, 879 N.E.2d 478 (5th
Dist. 2007), appeal denied, 227 Ill. 2d 577, 321 Ill. Dec. 249, 888 N.E.2d 1182 (2008); Pepper v. Johns
Hopkins Hosp., 111 Md. App. 49, 680 A.2d 532 (1996), aff'd, 346 Md. 679, 697 A.2d 1358 (1997);
Eaves v. Boswell, 852 S.W.2d 353 (Mo. Ct. App. S.D. 1993).
[FN9] Myer v. Dyer, 643 A.2d 1382 (Del. Super. Ct. 1993); Johns Hopkins Hosp. v. Pepper, 346 Md.
679, 697 A.2d 1358 (1997).

[FN10] Hutto v. BIC Corp., 800 F. Supp. 1367 (E.D. Va. 1992) (applying Virginia law); Pepper v.
Johns Hopkins Hosp., 111 Md. App. 49, 680 A.2d 532 (1996), aff'd, 346 Md. 679, 697 A.2d 1358
(1997).
[FN11] Bauer ex rel. Bauer v. Memorial Hosp., 377 Ill. App. 3d 895, 316 Ill. Dec. 411, 879 N.E.2d 478
(5th Dist. 2007), appeal denied, 227 Ill. 2d 577, 321 Ill. Dec. 249, 888 N.E.2d 1182 (2008).
rights reserved.
END OF DOCUMENT

AMJUR INFANTS VI B REF Page 1
42 Am. Jur. 2d Infants VI B Refs.

Infants
VI. Actions
B. Representation of Infant
Research References
West's Key Number Digest, Infants 77 to 87, 90
Primary Authority
Fed. R. Civ. P. 17(c)
A.L.R. Library
West's A.L.R. Digest, Infants 77 to 87, 90
Treatises and Practice Aids
Wright and Miller's Federal Practice and Procedure, Civil § 1572
Forms
Am. Jur. Pleading and Practice Forms, Infants §§ 13, 14, 22 to 26, 29, 51 to 54, 60, 61, 103, 104, 109, 110
rights reserved.
AMJUR INFANTS VI B REF
END OF DOCUMENT


Infants
VI. Actions
1. Representation in General
§ 146. Generally; distinction between next friend and guardian ad litem
Courts have inherent authority to appoint guardians ad litem to represent infants involved in litigation.[1] It
has been said that the distinction between a next friend and a guardian ad litem is a technical one, and as far as
their rights and duties are concerned, there is little, if any, difference between the two[2] although their func-
tions and powers may be different.[3]
A "next friend" is one who, without being a regularly appointed guardian, acts for a person under legal dis-
ability.[4] The next friend, by whom suit is brought on behalf of an infant, is neither technically nor substan-
tially the party, but resembles an attorney or a guardian ad litem, by whom a suit is brought or defended in be-
half of another.[5]
Observation:
As a general rule, a next friend for an infant plaintiff is required only when the infant is without a parent or gen-
eral guardian[6] since ordinarily it is the duty of the parent or general guardian of an infant to institute and pro-
secute an action on behalf of the infant for the protection of his or her rights.[7]
In some states, the representative of the infant is called a guardian ad litem,[8] or tutor,[9] whose purpose is
to protect and represent a minor's interests in litigation.[10] Sometimes, a guardian ad litem is an attorney called
an attorney ad litem,[11] but in some jurisdictions, they serve distinctly in different roles.[12]
A distinction is made in some cases between a next friend and a guardian ad litem on the basis of the fact
that the next friend represents an infant plaintiff, while the guardian ad litem represents an infant defendant;[13]
or that the guardian ad litem is appointed by the court, while the next friend need not secure a judicial appoint-
ment.[14]
[FN1] § 139.

[FN2] Miller v. Miller, 677 A.2d 64 (Me. 1996); Barr v. Barr, 987 S.W.2d 471 (Mo. Ct. App. S.D.
1999); In re Guardianship of Walker, 74 Nev. 230, 327 P.2d 344 (1958); Dye by Dye v. Fremont
County School Dist. No. 24, 820 P.2d 982, 71 Ed. Law Rep. 570 (Wyo. 1991).
[FN3] Barr v. Barr, 987 S.W.2d 471 (Mo. Ct. App. S.D. 1999).
[FN4] Intracare Hosp. North v. Campbell, 222 S.W.3d 790 (Tex. App. Houston 1st Dist. 2007); Dye by
Dye v. Fremont County School Dist. No. 24, 820 P.2d 982, 71 Ed. Law Rep. 570 (Wyo. 1991).
[FN5] Lowe v. City of Shelton, 83 Conn. App. 750, 851 A.2d 1183, 189 Ed. Law Rep. 752 (2004).
[FN6] In re Beghtel's Estate, 236 Iowa 953, 20 N.W.2d 421, 161 A.L.R. 1384 (1945); Miller v. Miller,
677 A.2d 64 (Me. 1996); State on Behalf of B.A.T. v. S.K.D., 246 Neb. 616, 522 N.W.2d 393 (1994).
As to the necessity of the appointment of a representative, see §§ 149, 150.
[FN8] Keling v. Keling, 155 S.W.3d 830 (Mo. Ct. App. E.D. 2005); Flaherty v. Butte Electric Ry. Co.,
40 Mont. 454, 107 P. 416 (1910); Lipscomb v. Poole, 247 S.C. 425, 147 S.E.2d 692 (1966); Land Rover
U.K., Ltd. v. Hinojosa, 210 S.W.3d 604 (Tex. 2006).
[FN9] Roussell v. Roussell, 678 So. 2d 612 (La. Ct. App. 5th Cir. 1996), writ denied, 682 So. 2d 765
(La. 1996).
[FN10] Williams v. Superior Court, 147 Cal. App. 4th 36, 54 Cal. Rptr. 3d 13 (4th Dist. 2007); Gil v.
Gil, 94 Conn. App. 306, 892 A.2d 318 (2006); Keling v. Keling, 155 S.W.3d 830 (Mo. Ct. App. E.D.
2005); Land Rover U.K., Ltd. v. Hinojosa, 210 S.W.3d 604 (Tex. 2006).
[FN11] Martin v. Pierce, 370 Ark. 53, 257 S.W.3d 82 (2007).
[FN12] International Dairy Queen, Inc. v. Matthews, 126 S.W.3d 629 (Tex. App. Beaumont 2004).
[FN13] Barr v. Barr, 987 S.W.2d 471 (Mo. Ct. App. S.D. 1999); Johnston County v. Ellis, 226 N.C.
268, 38 S.E.2d 31 (1946).
As to persons called "guardian ad litem" as representing an infant plaintiff, see § 148.
[FN14] Dye by Dye v. Fremont County School Dist. No. 24, 820 P.2d 982, 71 Ed. Law Rep. 570 (Wyo.
1991).
rights reserved.
END OF DOCUMENT


Infants
VI. Actions
1. Representation in General
§ 147. Federal rule
A.L.R. Library
Federal Civil Procedure Rule 17(c), relating to representation of infants or incompetent persons, 68
A.L.R.2d 752
Treatises and Practice Aids
Wright and Miller's Federal Practice and Procedure, Civil § 1572
Forms
Am. Jur. Pleading and Practice Forms, Infants § 22 (Petition in federal court—For appointment of guardian
ad litem or next friend for infant plaintiff)
Am. Jur. Pleading and Practice Forms, Infants § 23 (Motion and notice—In federal court—For appointment
of guardian ad litem for infant plaintiff)
Am. Jur. Pleading and Practice Forms, Infants § 24 (Affidavit—In federal court—Of proposed guardian ad
litem for infant)
Am. Jur. Pleading and Practice Forms, Infants § 29 (Order in federal court—Appointing guardian ad litem
for infant plaintiff—On motion of relative or friend of infant)
Generally, to maintain a suit in federal court, a child must be represented by a competent adult,[1] and a
nonattorney parent must be represented by counsel in bringing an action on behalf of a child.[2]
The Federal Rules of Civil Procedure provide that if an minor does not have a duly appointed representative

he or she may sue by his or her next friend or by a guardian ad litem and that the court shall appoint a guardian
ad litem—or issue another appropriate order—to protect a minor not otherwise represented in an action.[3] A
district court's power to appoint guardians ad litem under the Federal Rule of Civil Procedure is important not
only to ensure that a minor's rights and interests are fully protected in cases where the minor is otherwise repres-
ented and there may be conflicts of interest but also to ensure that the minor has proper access to the federal ju-
dicial system at all.[4]
Fed. R. Civ. P. 17(c) mandates that district courts appoint a guardian ad litem where the interests of an in-
fant's representatives may conflict with the interests of the infant.[5]
A parent generally qualifies as a "general guardian" who may sue on behalf of a minor[6] although the
power to appoint a guardian ad litem under this rule extends to situations in which a conflict of interest would
arise from a parent acting on behalf of the child.[7]
The federal rule does not make the appointment of a guardian ad litem mandatory,[8] and the decision
whether to appoint one rests within the sound discretion of the court[9] and will not be disturbed on appeal un-
less the trial court has abused its authority.[10]
Under the federal rule, a guardian ad litem may be appointed for an infant defendant as well as for an infant
plaintiff.[11]
[FN1] T.W. by Enk v. Brophy, 124 F.3d 893, 38 Fed. R. Serv. 3d 1468 (7th Cir. 1997); T.W. v. Brophy,
954 F. Supp. 1306, 36 Fed. R. Serv. 3d 1336 (E.D. Wis. 1996), judgment aff'd as modified on other
grounds, 124 F.3d 893, 38 Fed. R. Serv. 3d 1468 (7th Cir. 1997).
[FN2] Cheung v. Youth Orchestra Foundation of Buffalo, Inc., 906 F.2d 59, 16 Fed. R. Serv. 3d 1293
(2d Cir. 1990); Meeker v. Kercher, 782 F.2d 153 (10th Cir. 1986).
As to the necessity of legal representation, see § 150.
[FN3] Fed. R. Civ. P. 17(c)(2).
[FN4] Gaddis v. U.S., 381 F.3d 444, 64 Fed. R. Evid. Serv. 1238, 59 Fed. R. Serv. 3d 457 (5th Cir.
2004).
[FN5] Gaddis v. U.S., 381 F.3d 444, 64 Fed. R. Evid. Serv. 1238, 59 Fed. R. Serv. 3d 457 (5th Cir.
2004).
[FN6] Communities for Equity v. Michigan High School Athletic Ass'n, 26 F. Supp. 2d 1001, 131 Ed.
Law Rep. 186 (W.D. Mich. 1998).
As to who is qualified to represent, generally, see § 155.
[FN7] Geddes v. Cessna Aircraft Co., 881 F. Supp. 94 (E.D. N.Y. 1995); Seibels, Bruce & Co. v.
Nicke, 168 F.R.D. 542 (M.D. N.C. 1996).
As to when a parent is disqualified, see § 156.

[FN8] Roberts v. Ohio Cas. Ins. Co., 256 F.2d 35, 68 A.L.R.2d 747 (5th Cir. 1958); Seibels, Bruce &
Co. v. Nicke, 168 F.R.D. 542 (M.D. N.C. 1996).
[FN9] Wenger v. Canastota Cent. School Dist., 146 F.3d 123, 127 Ed. Law Rep. 66, 41 Fed. R. Serv. 3d
744 (2d Cir. 1998); Gaddis v. U.S., 381 F.3d 444, 64 Fed. R. Evid. Serv. 1238, 59 Fed. R. Serv. 3d 457
(5th Cir. 2004).
[FN10] Rubin v. Smith, 882 F. Supp. 212 (D.N.H. 1995).
[FN11] Blackwell v. Vance Trucking Co., 139 F. Supp. 103 (E.D. S.C. 1956).
rights reserved.
END OF DOCUMENT


Infants
VI. Actions
2. Appointment of Representative
a. Necessity of Representation
(1) In General
§ 148. Generally
West's Key Number Digest, Infants 77, 78(1) to 78(7)
An infant is under a legal disability and is not competent to personally bring an action on his or her own be-
half, nor to defend an action brought against him or her, but must be represented in such legal proceedings by a
legally authorized person,[1] either a parent, guardian, "next friend," or guardian ad litem.[2] If it appears to the
court that an infant party is not represented by any such person, it is the duty of the court to assure that the in-
terests of the child are legally represented,[3] and it is within the inherent power of the court to appoint a repres-
entative or guardian ad litem for the child.[4]
In some jurisdictions, a guardian ad litem must be appointed as a matter of law in certain circumstances,
such as where—
— a minor is a party to an action.[5]
— a minor is a respondent in an action to obtain an order of protection.[6]
— there is a case of child custody.[7]
— there is a case of dissolution of marriage.[8]
— there are allegations of child abuse in a case of legal separation.[9]
Children of suitable age and experience for whom a guardian ad litem is appointed have a right to be in-
formed whether or not the guardian ad litem is their attorney and whether a confidential relationship exists.[10]
Observation:
When the owner of a claim is a minor or incompetent person, unless that claimant is properly represented by a

guardian ad litem, next friend, or other suitable fiduciary, and that representative either is, or is represented by,
an attorney, the court should not issue a ruling as to whether the complaint states a claim on which relief may be
granted.[11]
[FN1] § 138.
[FN2] In re Cowden, 154 B.R. 531 (Bankr. E.D. Ark. 1993) (applying Arkansas law); American Altern-
ative Energy Partners II v. Windridge, Inc., 42 Cal. App. 4th 551, 49 Cal. Rptr. 2d 686 (5th Dist. 1996);
Newman v. Newman, 235 Conn. 82, 663 A.2d 980 (1995); Doe By and Through Doe v. Montessori
School of Lake Forest, 287 Ill. App. 3d 289, 223 Ill. Dec. 74, 678 N.E.2d 1082, 118 Ed. Law Rep. 700
(2d Dist. 1997); Boudreaux v. Entrekin, 643 So. 2d 1309 (La. Ct. App. 5th Cir. 1994); Miller v. Miller,
677 A.2d 64 (Me. 1996); Y.W. By and Through Smith v. National Super Markets, Inc., 876 S.W.2d 785
(Mo. Ct. App. E.D. 1994); Foti v. Askinas, 432 Pa. Super. 604, 639 A.2d 807 (1994); Armes v.
Thompson, 222 S.W.3d 79 (Tex. App. Eastland 2006); State ex rel. McMahon v. Hamilton, 198 W. Va.
575, 482 S.E.2d 192 (1996).
As to the appointment of a guardian ad litem, see § 151.
[FN3] In re Marriage of Vucic, 216 Ill. App. 3d 692, 159 Ill. Dec. 737, 576 N.E.2d 406 (2d Dist. 1991);
Chisholm v. Rueckhaus, 124 N.M. 255, 1997-NMCA-112, 948 P.2d 707 (Ct. App. 1997).
[FN4] § 139.
[FN5] In re D.D., 144 Cal. App. 4th 646, 50 Cal. Rptr. 3d 578 (5th Dist. 2006).
[FN6] Keller v. Trull, 2007 MT 108, 337 Mont. 188, 158 P.3d 439 (2007); Katherine B.T. v. Jackson,
220 W. Va. 219, 640 S.E.2d 569 (2006).
[FN7] Downard v. Downard, 292 S.W.3d 345 (Mo. Ct. App. E.D. 2009).
[FN10] S.G. v. D.C., 13 So. 3d 269 (Miss. 2009).
[FN11] Berrios v. New York City Housing Authority, 564 F.3d 130 (2d Cir. 2009).
rights reserved.
END OF DOCUMENT


Infants
VI. Actions
(1) In General
§ 149. Necessity of judicial appointment of representative
West's Key Number Digest, Infants 78(1) to 78(7)
In some jurisdictions, there is no formal appointment required for a next friend to represent a minor child[1]
although in others, an application for court appointment of a next friend or guardian ad litem must be made.[2]
The court has a certain degree of discretion in determining what is in a minor's best interest when appointing or
removing a representative for an infant,[3] and unless the court finds a child's general representative to be inad-
equate, it should not allow a general representative to be bypassed by appointing a special representative to litig-
ate on behalf of the child.[4]
When a case involves the unrepresented interests of an infant, the court has a duty to appoint a guardian ad
litem or next friend to assure the protection of the child's interests.[5] That the minor is represented by counsel,
in and of itself, is not sufficient.[6]
Observation:
When a parent is unable, unwilling, or refuses to act, or has interests which conflict with that of the infant, a
court appointment of a guardian ad litem for an infant is justified.[7]
Cases:
Former boyfriend could not raise constitutional claims on behalf of child adopted by former girlfriend dur-
ing boyfriend's and girlfriend's romantic relationship; child could not bring action in her own name, and boy-
friend had not been appointed as child's next friend. In re Scarlett Z.-D., 2012 IL App (2d) 120266, 363 Ill. Dec.
729, 975 N.E.2d 755 (App. Ct. 2d Dist. 2012).
[END OF SUPPLEMENT]

[FN1] Miller v. Miller, 677 A.2d 64 (Me. 1996); Dye by Dye v. Fremont County School Dist. No. 24,
820 P.2d 982, 71 Ed. Law Rep. 570 (Wyo. 1991).
Mothers were the proper plaintiffs to enforce the rights of minors even though the mothers failed to al-
lege that they had been appointed as tutrixes or administratrices of the estates of the minors. Reed v.
Allstate Ins. Co., 722 So. 2d 1152 (La. Ct. App. 4th Cir. 1998).
[FN2] R.W.B. v. T.W., 947 S.W.2d 815 (Mo. Ct. App. S.D. 1997); In re Guardianship of Walker, 74
Nev. 230, 327 P.2d 344 (1958); Sparks By and Through Haley v. Sparks, 114 N.M. 764, 845 P.2d 858
(Ct. App. 1992); Lovett v. Stone, 239 N.C. 206, 79 S.E.2d 479, 60 A.L.R.2d 780 (1954).
As to the necessity of appointment of a guardian ad litem, see § 151.
[FN3] U.S. v. 42.5 Acres, More or Less, of Land and Personal Property, Located in First Property Judi-
cial Dist. of Harrison County, Miss., 834 F. Supp. 912 (S.D. Miss. 1992); Rubin v. Smith, 882 F. Supp.
212 (D.N.H. 1995); Roussell v. Roussell, 678 So. 2d 612 (La. Ct. App. 5th Cir. 1996), writ denied, 682
So. 2d 765 (La. 1996); Matter of Guardianship of Petrik, 1996 SD 24, 544 N.W.2d 388 (S.D. 1996).
[FN4] T.W. by Enk v. Brophy, 124 F.3d 893, 38 Fed. R. Serv. 3d 1468 (7th Cir. 1997).
[FN5] Y.W. By and Through Smith v. National Super Markets, Inc., 876 S.W.2d 785 (Mo. Ct. App.
E.D. 1994); Furey v. County of Ocean, 273 N.J. Super. 300, 641 A.2d 1091 (App. Div. 1994); State ex
rel. Children, Youth and Families Dept. v. Lilli L., 121 N.M. 376, 1996-NMCA-014, 911 P.2d 884 (Ct.
App. 1995); Carter v. Carter, 196 W. Va. 239, 470 S.E.2d 193 (1996).
[FN6] Kingsley v. Kingsley, 623 So. 2d 780 (Fla. Dist. Ct. App. 5th Dist. 1993).
[FN7] McDonald v. Hammons, 936 F. Supp. 86 (E.D. N.Y. 1996); Turner v. Turner, 216 A.D.2d 911,
629 N.Y.S.2d 139 (4th Dep't 1995).
As to the necessity of appointing a guardian ad litem, see § 151.
rights reserved.
END OF DOCUMENT


Infants
VI. Actions
(1) In General
§ 150. Necessity of representation by attorney
West's Key Number Digest, Infants 77, 78(1), 90
A child cannot waive the right to counsel in the absence of parental consent.[1] A minor is an incapacitated
person for whom an attorney ad litem may be appointed,[2] and an attorney may be required for an infant not
otherwise represented in an action.[3] Typically, the child's attorney is an advocate for the child while the guard-
ian ad litem is the representative of the child's best interests.[4] A child has a right to independent representation
on matters affecting his or her substantial rights and interests,[5] particularly when a parent or guardian ad litem
cannot serve these interests due to a conflict of interest.[6]
Rules precluding a parent or guardian from bringing an action on behalf of their minor child without retain-
ing a lawyer have been held to not violate the Free Exercise Clause.[7]
Practice Tip:
Generally, the appointment of counsel for minor children rests within the discretion of the court.[8]
[FN1] In In Interest of Lamm, 423 So. 2d 1210 (La. Ct. App. 4th Cir. 1982), writ denied, 432 So. 2d
265 (La. 1983), reconsideration not considered, 433 So. 2d 1049 (La. 1983).
[FN2] Coleson v. Bethan, 931 S.W.2d 706 (Tex. App. Fort Worth 1996).
[FN3] Wasson v. Wasson, 92 N.M. 162, 584 P.2d 713 (Ct. App. 1978).
If an unemancipated minor is sued, and his parents are dead, divorced, or judicially separated and no tu-
tor, which is then required, has been qualified for him, the court shall appoint an attorney to represent

him. Nicosia v. Guillory, 322 So. 2d 129 (La. 1975).
[FN4] Gil v. Gil, 94 Conn. App. 306, 892 A.2d 318 (2006).
[FN5] Cleo A.E. v. Rickie Gene E., 190 W. Va. 543, 438 S.E.2d 886 (1993) (right to establishment of
paternity and child support obligation).
[FN6] Kiefer v. Yellon, 646 So. 2d 1073 (La. Ct. App. 5th Cir. 1994), writ not considered, 649 So. 2d
416 (La. 1995) (statute authorizing appointment of attorney for child in a child custody dispute in-
volving allegations of sexual abuse).
A guardian or guardian ad litem must become an active participant when a name change is at issue in a
paternity proceeding, and under appropriate circumstances, independent legal counsel must be obtained
to represent the child. Daves v. Nastos, 105 Wash. 2d 24, 711 P.2d 314 (1985).
As to criminal proceedings, see § 151.
[FN7] Johns v. County of San Diego, 114 F.3d 874, 37 Fed. R. Serv. 3d 1243 (9th Cir. 1997).
[FN8] Chitay-Pirir v. I.N.S., 169 F.3d 1079 (7th Cir. 1999); Kearney v. State, 174 Conn. 244, 386 A.2d
223 (1978); Cook v. First Morris Bank, 316 N.J. Super. 144, 719 A.2d 724 (Law Div. 1998).
As to the effect of appointment of a guardian ad litem on the need for appointment of counsel for an in-
fant, see § 154.
rights reserved.
END OF DOCUMENT


Infants
VI. Actions
(2) Appointment of Guardian Ad Litem
§ 151. Generally
Forms
Am. Jur. Pleading and Practice Forms, Infants § 13 (Checklist—Drafting petition for appointment of guardi-
an ad litem to prosecute or defend action for an infant)
Am. Jur. Pleading and Practice Forms, Infants § 14 (Petition or application—Appointment of guardian ad
litem or next friend for infant plaintiff)
Am. Jur. Pleading and Practice Forms, Infants § 25 (Notice—Application for appointment of guardian ad
litem for infant plaintiff)
Am. Jur. Pleading and Practice Forms, Infants § 26 (Order—Appointing guardian ad litem for infant
plaintiff—General form)
Ordinarily, it is the duty of the court to appoint a guardian ad litem for an infant in a civil action if he or she
is not represented by a general guardian,[1] or if his or her guardian or next friend fails to pursue a claim on be-
half of the infant,[2] or is otherwise disqualified to act on behalf of the child.[3] Two relevant factors in deciding
whether a guardian ad litem is necessary are the ages of the children and the nature of the parents' claims.[4]
Parental conflicts of interest may in some instances support the appointment of an independent guardian ad litem
on behalf of their minor children.[5]
In many jurisdictions, the appointment of a guardian ad litem, or the procedure for such appointment, is
provided for by statute. Under some of these statutes, it is mandatory, and not a mere matter of form, that the de-
fense of an infant is to be made by a guardian ad litem.[6] In other jurisdictions, however, the courts are not al-
ways required to appoint a guardian ad litem,[7] and when a child is not a trial participant, a third party has no

standing to compel the appointment of a guardian ad litem to protect the child's interests.[8]
The courts hold that it is not necessary to appoint a guardian ad litem for an infant charged with a crime,[9]
at least when there is no showing of prejudice to the infant.[10]
[FN1] O'Hara v. Macconnell, 93 U.S. 150, 23 L. Ed. 840, 1876 WL 19700 (1876); Friedman v. Teplis,
268 Ga. 721, 492 S.E.2d 885 (1997); Cepek v. Cepek, 684 N.W.2d 521 (Minn. Ct. App. 2004); Cox v.
Wrinkle, 267 S.W.2d 648 (Mo. 1954).
As to whether or when it is required of the court to appoint a guardian ad litem for an infant where a
legal proceeding affecting his or her rights or interests is instituted but he or she is not a proper party to
such litigation, see § 25.
[FN2] A.A. v. E.P., 559 So. 2d 622 (Fla. Dist. Ct. App. 3d Dist. 1990); Turner v. Turner, 216 A.D.2d
911, 629 N.Y.S.2d 139 (4th Dep't 1995).
[FN3] Wheeler v. Antinoro, 660 So. 2d 1354 (Ala. Civ. App. 1995); In re Marriage of Vucic, 216 Ill.
App. 3d 692, 159 Ill. Dec. 737, 576 N.E.2d 406 (2d Dist. 1991).
As to what constitutes disqualification, see § 156.
[FN4] Thomas v. Thomas, 171 P.3d 98 (Alaska 2007).
[FN5] People v. Superior Court, 43 Cal. 4th 737, 76 Cal. Rptr. 3d 276, 182 P.3d 600 (2008).
[FN6] Lechner v. Whitesell by Whitesell, 811 S.W.2d 859 (Mo. Ct. App. S.D. 1991); South Carolina
Dept. of Social Services v. Pritcher, 329 S.C. 242, 495 S.E.2d 242 (Ct. App. 1997); Nelson v. Ferguson,
184 W. Va. 198, 399 S.E.2d 909 (1990).
[FN7] Allstate Ins. Co. v. Brown, 920 F.2d 664 (10th Cir. 1990); U.S. v. 42.5 Acres, More or Less, of
Land and Personal Property, Located in First Property Judicial Dist. of Harrison County, Miss., 834 F.
Supp. 912 (S.D. Miss. 1992); Lopez v. Variety Children's Hosp., 600 So. 2d 506 (Fla. Dist. Ct. App. 3d
Dist. 1992).
[FN8] Cook v. First Morris Bank, 316 N.J. Super. 144, 719 A.2d 724 (Law Div. 1998).
[FN9] Summerour v. Fortson, 174 Ga. 862, 164 S.E. 809 (1932); People v. Crooks, 326 Ill. 266, 157
N.E. 218 (1927); Ex parte White, 50 Tex. Crim. 473, 98 S.W. 850 (1906); Wilson v. Com., 23 Va. App.
318, 477 S.E.2d 7 (1996) (where counsel adequately represents interests).
As to the appointment of a guardian ad litem in juvenile proceedings, see Am. Jur. 2d, Juvenile Court
and Delinquent and Dependent Children § 74.
[FN10] State v. Barrette, 153 Vt. 476, 571 A.2d 1137 (1990).
rights reserved.

END OF DOCUMENT


Infants
VI. Actions
§ 152. Discretion of court
A trial court has broad discretion to determine when it is appropriate to appoint a guardian ad litem[1] and
may decline to do so when it is likely the infant does not have a credible claim[2] or when the court is of the
opinion that the interests of the minor are fully protected.[3]
A chancellor is not required to accept the recommendations of a guardian ad litem, nor is he or she required
to state his or her reasons for rejecting those recommendations, if the appointment of the guardian ad litem is not
mandatory.[4]
Observation:
A court abuses its discretion on a motion to appoint a guardian ad litem in a child custody case when it acts in an
arbitrary, unreasonable, or unconscionable manner.[5]
[FN1] Rubright v. Arnold, 973 P.2d 580 (Alaska 1999); Srader v. Midkiff, 303 Ga. App. 514, 693
S.E.2d 856 (2010); Nihipali v. Apuakehau, 112 Haw. 113, 144 P.3d 561 (Ct. App. 2006), as corrected,
(July 3, 2006); Matter of Estate of Dyniewicz, 271 Ill. App. 3d 616, 208 Ill. Dec. 154, 648 N.E.2d 1076
(1st Dist. 1995); Courtney v. Roggy, 302 S.W.3d 141 (Mo. Ct. App. W.D. 2009), reh'g and/or transfer
denied, (Dec. 22, 2009) and transfer denied, (Mar. 2, 2010); Cole v. Reynolds, 8 A.D.3d 703, 778
N.Y.S.2d 202 (3d Dep't 2004); Matter of Estate of Murphy, 554 N.W.2d 432 (N.D. 1996); Gomes v.
Hameed, 2008 OK 3, 184 P.3d 479 (Okla. 2008).
[FN2] Seibels, Bruce & Co. v. Nicke, 168 F.R.D. 546 (M.D. N.C. 1996).
[FN3] Lopez v. Variety Children's Hosp., 600 So. 2d 506 (Fla. Dist. Ct. App. 3d Dist. 1992); Smith v.

State ex rel. Rambo, 993 S.W.2d 546 (Mo. Ct. App. S.D. 1999).
As to the effect of other representation, see § 153.
[FN4] Balius v. Gaines, 958 So. 2d 213 (Miss. Ct. App. 2005).
[FN5] Siewert v. Siewert, 2008 ND 221, 758 N.W.2d 691 (N.D. 2008).
rights reserved.
END OF DOCUMENT


Infants
VI. Actions
§ 153. Effect of other representation of interests
West's Key Number Digest, Infants 77, 78(1) to 78(7)
That an infant defendant is otherwise represented[1] by a parent who is not appointed as his or her guardi-
an,[2] or by an attorney,[3] or that adult defendants whose interests are the same as those of the infant are mak-
ing a proper defense by their own counsel,[4] does not preclude the necessity of appointing a guardian ad litem
to represent the infant.
Cases:
Juvenile's defense counsel in delinquency proceeding, though not actually appointed as juvenile's guardian
ad litem (GAL), provided "hybrid representation," i.e., he functioned both as GAL and defense counsel, thus
creating a per se conflict of interest; both the juvenile court and juvenile's counsel conceived counsel's role as
that of a guardian ad litem, representing juvenile's and society's best interests, rather than that of a traditional de-
fense attorney. People v. Austin M., 2012 IL 111194, 363 Ill. Dec. 220, 975 N.E.2d 22 (Ill. 2012).
Any possible error in admission of reports from child's former guardian ad litem in unrelated action and
guardian ad litem's testimony at hearing on mother's motion for appointment of guardian and conservator, even
though guardian ad litem had not been appointed to represent child by Probate Court in instant proceedings, was
harmless, in view of extensive evidence that supported findings that father and mother were unable to continue
to function as co-guardians. 18–A M.R.S.A. § 1-112; § 5–303(c) (Repealed). In re Guardianship of Smith, 2011
ME 51, 17 A.3d 136 (Me. 2011).
[END OF SUPPLEMENT]

[FN1] Kennedy v. State, 1999 ME 85, 730 A.2d 1252 (Me. 1999); Collins on Behalf of Collins v. Ta-
bet, 111 N.M. 391, 806 P.2d 40, 14 A.L.R.5th 1094 (1991).
[FN2] State v. Stark, 149 Iowa 749, 129 N.W. 331 (1911); Allen v. Hickman, 1963 OK 156, 383 P.2d
676 (Okla. 1963).
Even if the multiple representation of parents and children was appropriate, normal safeguards to mul-
tiple representation could not be applied because children were not competent to determine whether
their potential conflict with their parents precluded joint representation and were not competent to
"waive" the conflict. McDonald v. Hammons, 936 F. Supp. 86 (E.D. N.Y. 1996).
[FN3] Wright ex rel. Wright v. Area Bus Corp., 179 Misc. 2d 289, 684 N.Y.S.2d 841 (Sup 1998).
The basic role of a law guardian for a minor is to zealously advocate the client's cause whereas the basic
role of a guardian ad litem is to assist the court in its determination of the minor's best interest. Matter
of Adoption of a Child by E.T., 302 N.J. Super. 533, 695 A.2d 734 (App. Div. 1997).
[FN4] Johnson v. Waterhouse, 152 Mass. 585, 26 N.E. 234 (1891); Allen v. Hickman, 1963 OK 156,
383 P.2d 676 (Okla. 1963).
rights reserved.
END OF DOCUMENT


Infants
VI. Actions
§ 154. Effect of appointment
When a statute allows the appointment of a guardian ad litem for a child, an appointment deprives the parent
of standing to assert any claim relating to the areas of interest for which the guardian is appointed.[1]
Once appointed, a guardian ad litem usually displaces the guardian or next friend and becomes the personal
representative of the individual subject to legal disability.[2]
When a court finds that the guardian ad litem is able to adequately represent the interests of the minor, the
separate representation of the infant by court-appointed counsel is not required.[3]
[FN1] State ex rel. Bird v. Weinstock, 864 S.W.2d 376 (Mo. Ct. App. E.D. 1993).
[FN3] Villanueva v. Schwall, 408 So. 2d 1186 (La. Ct. App. 4th Cir. 1982).
rights reserved.
END OF DOCUMENT


Infants
VI. Actions
b. Qualification of Representative
§ 155. Generally
Any person may serve as the next friend of an infant plaintiff[1] whether related to the infant or not.[2]
Observation:
A next friend, however, must be dedicated to the minor's best interests and generally must have some significant
relationship with the minor.[3]
Based on policy considerations related to standing, a next friend who seeks to bring an action on behalf of a
child ordinarily should be confined to the plaintiff's parents, older siblings, or a conservator or other guardian,[4
] but if a close relative is unavailable and the child has no conflict-free general representative, the court may ap-
point some other suitable person to represent the child's interests in the litigation.[5] Thus, that an infant's par-
ents are alive and supporting the infant in their home does not preclude a grandparent from suing as a next friend
on a cause of action accruing to the child.[6] Likewise, a child's biological parents, as next friends of the child,
may sue on behalf of the child even though their parental rights have been terminated.[7] There is also authority
that the emancipation of a married female minor does not preclude her parent from bringing a personal injury ac-
tion on her behalf as a next friend.[8]
In some jurisdictions, when a parent does not have custody, that parent lacks standing to bring a suit on a
child's behalf[9] while in others, it is held that an award of custody does not per se exclude the rights of the non-
custodial parent to sue on behalf of a child as the best interests of the child remain paramount.[10] When there is
a potential conflict between a perceived parental responsibility and an obligation to assist the court in achieving
a just and speedy determination of the action, a court has the right to select a guardian ad litem who is not a par-
ent if that guardian would best protect the child's interests.[11]
The court must determine whether a person seeking to represent a child as a next friend is a proper or suit-
able person to make a claim on behalf of the child[12] and when there is cause for disqualification.[13]

[FN1] Kingsbury v. Buckner, 134 U.S. 650, 10 S. Ct. 638, 33 L. Ed. 1047 (1890); Vance v. T.R.C., 229
Ga. App. 608, 494 S.E.2d 714 (1997); In re Guardianship of Walker, 74 Nev. 230, 327 P.2d 344 (1958);
Bertinelli v. Galoni, 331 Pa. 73, 200 A. 58, 118 A.L.R. 398 (1938); Roberts v. Vaughn, 142 Tenn. 361,
219 S.W. 1034, 9 A.L.R. 1528 (1920).
[FN2] Lovett v. Stone, 239 N.C. 206, 79 S.E.2d 479, 60 A.L.R.2d 780 (1954).
[FN3] T.W. v. Brophy, 954 F. Supp. 1306, 36 Fed. R. Serv. 3d 1336 (E.D. Wis. 1996), judgment aff'd
as modified on other grounds, 124 F.3d 893, 38 Fed. R. Serv. 3d 1468 (7th Cir. 1997).
As to the need for standing, generally, see Am. Jur. 2d, Parties § 34.
[FN6] In re Guardianship of Walker, 74 Nev. 230, 327 P.2d 344 (1958); Bertinelli v. Galoni, 331 Pa.
73, 200 A. 58, 118 A.L.R. 398 (1938).
[FN7] Miracle by Miracle v. Spooner, 978 F. Supp. 1161 (N.D. Ga. 1997).
[FN8] Paju v. Ricker, 110 N.H. 310, 266 A.2d 836 (1970).
[FN9] Otero on Behalf of Otero v. State, 159 Misc. 2d 35, 602 N.Y.S.2d 501 (Ct. Cl. 1993).
[FN10] Stevenson v. Hawthorne Elementary School, East St. Louis School Dist. No. 189, 144 Ill. 2d
294, 162 Ill. Dec. 38, 579 N.E.2d 852, 70 Ed. Law Rep. 574 (1991).
As to a parent's right to sue for torts committed against the child on behalf of the child, see Am. Jur. 2d,
Parent and Child §§ 126 to 131, 143, 144.
[FN12] Orsi v. Senatore, 230 Conn. 459, 645 A.2d 986 (1994).
The court did not abuse its discretion in refusing to appoint the child's divorced father as her tutor so
that the child could bring an action against her former therapist who had concluded that the father had
molested his child. Roussell v. Roussell, 678 So. 2d 612 (La. Ct. App. 5th Cir. 1996), writ denied, 682
So. 2d 765 (La. 1996).
[FN13] § 156.
rights reserved.
END OF DOCUMENT


Infants
VI. Actions
b. Qualification of Representative
§ 156. Disqualification of representative
A next friend who brings an action on a child's behalf can be challenged as not being a suitable representat-
ive regardless of whether the next friend is appointed by a court.[1] A person otherwise proper or eligible to act
for an infant as a next friend or guardian ad litem will be disqualified if he or she has interests adverse to those
of the infant[2] or if he or she is incompetent.[3] A person may also be disqualified to act when he or she fails
without reason to sue or defend.[4]
If a child's general representative is disqualified, another next friend cannot jump into the case without first
obtaining a court order disqualifying the existing representative from representing the child in the suit.[5]
The next friend of an infant must be an adult; an infant may not act as next friend of another infant even
though the disability of his or her infancy has been removed to some extent by a decree empowering him or her
to act in reference to his or her own property.[6]
[FN2] Kingsbury v. Buckner, 134 U.S. 650, 10 S. Ct. 638, 33 L. Ed. 1047 (1890); T.W. by Enk v.
Brophy, 124 F.3d 893, 38 Fed. R. Serv. 3d 1468 (7th Cir. 1997); Hull By Hull v. U.S., 53 F.3d 1125
(10th Cir. 1995); Foretich v. Glamour, 741 F. Supp. 247 (D.D.C. 1990); Bullock v. Dioguardi, 847 F.
Supp. 553 (N.D. Ill. 1993); McDonald v. Hammons, 936 F. Supp. 86 (E.D. N.Y. 1996); Wheeler v. An-
tinoro, 660 So. 2d 1354 (Ala. Civ. App. 1995); Carrubba v. Moskowitz, 274 Conn. 533, 877 A.2d 773
(2005); Taylor v. Kennedy, 649 So. 2d 270 (Fla. Dist. Ct. App. 5th Dist. 1994); Stevenson v.
Hawthorne Elementary School, East St. Louis School Dist. No. 189, 144 Ill. 2d 294, 162 Ill. Dec. 38,
579 N.E.2d 852, 70 Ed. Law Rep. 574 (1991); R.L. v. G.F., 973 So. 2d 322 (Miss. Ct. App. 2008); Lar-
son v. Vyskocil, 245 Neb. 917, 515 N.W.2d 660 (1994); Dorsainvil v. Parker, 14 Misc. 3d 397, 829

N.Y.S.2d 851 (Sup 2006); McGough By and Through Wonzer v. Moore, 828 S.W.2d 547 (Tex. App.
Houston 1st Dist. 1992).
A custodial parent should be removed as the child's representative in an action only when the parent has
an interest adverse to the child. Mazzuca v. Warren P. Wielt Trust, 59 A.D.3d 907, 875 N.Y.S.2d 291
(3d Dep't 2009).
[FN3] Swoope v. Swoope, 173 Ala. 157, 55 So. 418 (1911).
A deceased mother's sister and her husband lacked standing as a child's next friends to bring a paternity
action on behalf of the child after their guardianship of the child had been dissolved where the sister
and her husband were not the child's parents, his guardians, or prosecutors, and the child was not
without a parent. J.R.W. ex rel. Jemerson v. Watterson, 877 N.E.2d 487 (Ind. Ct. App. 2007).
[FN4] T.W. by Enk v. Brophy, 124 F.3d 893, 38 Fed. R. Serv. 3d 1468 (7th Cir. 1997); A.A. v. E.P.,
559 So. 2d 622 (Fla. Dist. Ct. App. 3d Dist. 1990).
As to judicial removal, see §§ 160 to 162.
[FN6] Prudential Ins. Co. v. Gleason, 185 Miss. 243, 187 So. 229 (1939).
rights reserved.
END OF DOCUMENT


Infants
VI. Actions
c. Procedural Matters
§ 157. Generally; irregularity in appointment or procedure
Forms
Am. Jur. Pleading and Practice Forms, Infants § 53 (Oath of guardian ad litem)
In many jurisdictions, the procedure for the appointment of a guardian ad litem for an infant defendant is
provided for by statute.[1] The judge must clearly define the role of the guardian ad litem and the purpose of ap-
pointment, i.e., to serve as advisor to the court or counsel for the children.[2] An irregularity in the appointment
of the infant's representative generally does not render the judgment in the proceeding void, but merely voidable,
particularly in the absence of prejudice to the rights of the infant.[3]
A defendant has no legal standing to question the court's selection of a next friend for an infant plaintiff
since an infant plaintiff who sues by a next friend is as much bound by the judgment of the court as an adult.[4]
[FN1] § 151.
[FN2] Gainey v. Edington, 24 So. 3d 333 (Miss. Ct. App. 2009).
[FN3] In re Wilcox, 229 B.R. 411 (Bankr. N.D. Ohio 1998); Ritzler v. Eckleberry, 167 Ohio St. 439, 5
Ohio Op. 2d 118, 149 N.E.2d 728 (1958).
[FN4] Lovett v. Stone, 239 N.C. 206, 79 S.E.2d 479, 60 A.L.R.2d 780 (1954).
rights reserved.

END OF DOCUMENT


Infants
VI. Actions
c. Procedural Matters
§ 158. Time for appointment of representative
Generally, the court has no power to appoint a guardian ad litem or representative for an infant defendant
until there is effective legal service of process on the infant or on his or her parent, guardian, or near relative
when such service is permitted or required.[1]
Observation:
Absent a statutory provision to the contrary, the court treats a minor as its ward only when some suit is instituted
relative to the person or property of the minor.[2]
The appointment of a guardian ad litem for an infant defendant during the course of the trial may serve to
validate an otherwise objectionable proceeding against the infant if it is done in time to adequately protect the
interests of the infant.[3]
[FN1] In re Daniel S., 115 Cal. App. 4th 903, 9 Cal. Rptr. 3d 646 (4th Dist. 2004); City of Chicago v.
Chicago Bd. of Educ., 277 Ill. App. 3d 250, 213 Ill. Dec. 817, 660 N.E.2d 74, 106 Ed. Law Rep. 816
(1st Dist. 1995); Vandewater v. American General Fire and Cas. Co., 890 S.W.2d 811 (Tex. App. Aus-
tin 1994), judgment rev'd on other grounds, 907 S.W.2d 491 (Tex. 1995) and writ granted, (June 15,
1995).
As to service of process against an infant, see §§ 189 to 197.
[FN2] City of Chicago v. Chicago Bd. of Educ., 277 Ill. App. 3d 250, 213 Ill. Dec. 817, 660 N.E.2d 74,
106 Ed. Law Rep. 816 (1st Dist. 1995).
[FN3] Allen v. Hickman, 1963 OK 156, 383 P.2d 676 (Okla. 1963); Waukesha County v. Tadych, 197

Wis. 2d 653, 541 N.W.2d 782 (Ct. App. 1995).
rights reserved.
END OF DOCUMENT


Infants
VI. Actions
3. Nature of Office
§ 159. Generally; context of interest in litigation
Although a minor is required to appear through a parent, guardian, or next friend, the minor is the real party
in interest.[1] The guardian or next friend is an officer of the court to protect the rights of the minor,[2] and is
not a party to the action,[3] nor has he or she any interest in the litigation[4] though he or she does act as an
agent of the party represented.[5]
The bringing of a suit by an infant's representative does not change the minor's status as non sui juris, and
the minor remains under the court's protection.[6]
Venue and jurisdiction in the action of an infant brought by his or her next friend are determined by the
right of the infant to maintain the suit.[7]
[FN1] Newman v. Newman, 235 Conn. 82, 663 A.2d 980 (1995); Kingsley v. Kingsley, 623 So. 2d 780
(Fla. Dist. Ct. App. 5th Dist. 1993); Clements v. Phillips, 235 Ga. App. 588, 510 S.E.2d 311 (1998);
Branham v. Stewart, 307 S.W.3d 94 (Ky. 2010); Miller v. Miller, 677 A.2d 64 (Me. 1996); Byrd v.
Woodruff, 891 S.W.2d 689 (Tex. App. Dallas 1994), writ denied, (May 4, 1995) and writ withdrawn,
(Sept. 28, 1995) and writ dismissed by agreement, (Sept. 28, 1995).
[FN2] Cruz v. Superior Court, 121 Cal. App. 4th 646, 17 Cal. Rptr. 3d 368 (4th Dist. 2004); Watson By
and Through Watson v. State Farm Mut. Auto. Ins. Co., 639 So. 2d 687 (Fla. Dist. Ct. App. 2d Dist.
1994); Clements v. Phillips, 235 Ga. App. 588, 510 S.E.2d 311 (1998); Byrd v. Woodruff, 891 S.W.2d
689 (Tex. App. Dallas 1994), writ denied, (May 4, 1995) and writ withdrawn, (Sept. 28, 1995) and writ
dismissed by agreement, (Sept. 28, 1995).
[FN3] Palay v. Superior Court, 18 Cal. App. 4th 919, 22 Cal. Rptr. 2d 839 (2d Dist. 1993); Watson By
and Through Watson v. State Farm Mut. Auto. Ins. Co., 639 So. 2d 687 (Fla. Dist. Ct. App. 2d Dist.

1994); Clements v. Phillips, 235 Ga. App. 588, 510 S.E.2d 311 (1998); Blue v. People, 223 Ill. App. 3d
594, 165 Ill. Dec. 894, 585 N.E.2d 625 (2d Dist. 1992); Bertinelli v. Galoni, 331 Pa. 73, 200 A. 58, 118
A.L.R. 398 (1938); Byrd v. Woodruff, 891 S.W.2d 689 (Tex. App. Dallas 1994), writ denied, (May 4,
1995) and writ withdrawn, (Sept. 28, 1995) and writ dismissed by agreement, (Sept. 28, 1995).
withdrawn, (Sept. 28, 1995) and writ dismissed by agreement, (Sept. 28, 1995); Ebbert v. Westfall, 123
W. Va. 690, 17 S.E.2d 787 (1941).
[FN5] Cruz v. Superior Court, 121 Cal. App. 4th 646, 17 Cal. Rptr. 3d 368 (4th Dist. 2004); Branham v.
Stewart, 307 S.W.3d 94 (Ky. 2010).
[FN7] Cozine v. Bonnick, 245 S.W.2d 935 (Ky. 1952).
rights reserved.
END OF DOCUMENT


Infants
VI. Actions
3. Nature of Office
§ 160. Judicial supervision and control
A next friend of an infant in a legal proceeding is subject to the supervision or control of the court,[1] which
has the power to determine whether the litigation is in the infant's best interests.[2]
Observation:
There is a special duty of the court to protect the rights of a minor who is represented by a next friend to ensure
that the next friend does not prejudice those rights through a conflict of interest, fraud, or neglect.[3]
When a foreign guardian has brought a suit for an infant, without legal authority, the court may appoint a
next friend to prosecute it or may recognize the guardian as a next friend.[4]
The imposition of a condition on the substitution of a guardian ad litem that the prior guardian shall not
testify as a witness is not proper since the question of competency as a witness is to be determined only when he
or she is offered as a witness.[5]
[FN1] In re Beghtel's Estate, 236 Iowa 953, 20 N.W.2d 421, 161 A.L.R. 1384 (1945); Lovett v. Stone,
239 N.C. 206, 79 S.E.2d 479, 60 A.L.R.2d 780 (1954); Hanna v. Titus, 68 Ohio App. 127, 22 Ohio Op.
251, 39 N.E.2d 556 (6th Dist. Lucas County 1941); Bertinelli v. Galoni, 331 Pa. 73, 200 A. 58, 118
A.L.R. 398 (1938).
[FN2] Bertinelli v. Galoni, 331 Pa. 73, 200 A. 58, 118 A.L.R. 398 (1938).
[FN3] Berrain v. Katzen, 331 Md. 693, 629 A.2d 707 (1993).
As to disqualification of a next friend, see § 156.

[FN4] § 168.
[FN5] Lee v. Leibold, 102 Colo. 408, 79 P.2d 1049, 116 A.L.R. 1319 (1938).
As to the competency of witnesses to testify, generally, see Am. Jur. 2d, Witnesses §§ 160 to 272.
rights reserved.
END OF DOCUMENT


Infants
VI. Actions
3. Nature of Office
§ 161. Judicial supervision and control—Removal of representative
If it appears that the next friend has interests in the cause adverse to those of the infant or the next friend is
not acting in the infant's interest, the court may remove that person and appoint someone else to act in that capa-
city.[1] The court is granted a certain degree of discretion in determining what is in the minor's best interest
when appointing or removing a representative,[2] but a guardian may not be removed solely to insure the ap-
proval of a settlement of an action;[3] the power of a court to approve a settlement does not confer the power to
dictate the terms of the settlement.[4] Once the conflict between the next friend and the minor ends, the trial
court should remove the guardian ad litem previously appointed to replace the next friend.[5]
[FN1] Kingsbury v. Buckner, 134 U.S. 650, 10 S. Ct. 638, 33 L. Ed. 1047 (1890); Shockley v. Okeke,
92 Conn. App. 76, 882 A.2d 1244 (2005); Miller v. Miller, 677 A.2d 64 (Me. 1996); Wright ex rel.
Wright v. Area Bus Corp., 179 Misc. 2d 289, 684 N.Y.S.2d 841 (Sup 1998); Byrd v. Woodruff, 891
S.W.2d 689 (Tex. App. Dallas 1994), writ denied, (May 4, 1995) and writ withdrawn, (Sept. 28, 1995)
and writ dismissed by agreement, (Sept. 28, 1995).
As to the disqualification of a representative, see § 156.
[FN2] Roussell v. Roussell, 678 So. 2d 612 (La. Ct. App. 5th Cir. 1996), writ denied, 682 So. 2d 765
(La. 1996); Kennedy v. Missouri Pacific R. Co., 778 S.W.2d 552 (Tex. App. Beaumont 1989), writ
denied, (Apr. 11, 1990).
[FN3] Stahl v. Rhee, 220 A.D.2d 39, 643 N.Y.S.2d 148 (2d Dep't 1996).
[FN4] § 140.
[FN5] City of Houston v. Woods, 138 S.W.3d 574 (Tex. App. Houston 14th Dist. 2004).

rights reserved.
END OF DOCUMENT


Infants
VI. Actions
3. Nature of Office
§ 162. Termination of authority to represent
Ordinarily, the authority of an infant's representative, if not removed by the court,[1] ends when the cause is
finally determined[2] unless the representative is authorized by statute[3] or by the court[4] to take further ac-
tion after the termination of the suit. Thus, the power of a guardian ad litem is ordinarily limited to matters re-
lated to the particular action in which he or she is appointed.[5]
Observation:
A court may impose duties on a guardian ad litem extending after a judgment has become final[6] provided that
those duties are not an improper delegation of the judicial role.[7]
The authority of a next friend or guardian ad litem to represent an infant in the conduct of a cause also ex-
pires with the minority of the infant.[8] Nevertheless, a next friend or guardian ad litem of an infant plaintiff
may have continued authority to represent the infant in other related litigation or proceedings.[9]
Where a next friend or guardian ad litem represents the interests of an orphaned minor, such appointment
ends with the minor's adoption.[10]
[FN1] § 161.
[FN2] Paskewie v. East St. Louis & S. Ry. Co., 281 Ill. 385, 117 N.E. 1035 (1917); Luck v. Schabell,
186 Ky. 335, 216 S.W. 1066 (1919); Meyers v. Smith, 349 S.W.2d 412 (Mo. Ct. App. 1961); Teele v.
Kerr, 261 N.C. 148, 134 S.E.2d 126 (1964); Grunewald v. Technibilt Corp., 931 S.W.2d 593 (Tex. App.
Dallas 1996), writ denied, (Nov. 26, 1996).
As to the authority to represent the infant in further proceedings, see § 172.

[FN3] Paskewie v. East St. Louis & S. Ry. Co., 281 Ill. 385, 117 N.E. 1035 (1917).
[FN5] Sharp v. Hanceville Nursing Home, Inc., 719 So. 2d 243 (Ala. Civ. App. 1998); Meairs v. Kruck-
enberg, 171 Kan. 450, 233 P.2d 472, 31 A.L.R.2d 525 (1951); Van Schaik v. Van Schaik, 90 Md. App.
725, 603 A.2d 908 (1992); King v. Emmons, 283 Mich. 116, 277 N.W. 851, 115 A.L.R. 564 (1938);
Sosa By and Through Grant v. Koshy, 961 S.W.2d 420 (Tex. App. Houston 1st Dist. 1997).
[FN7] Wolf v. Wolf, 39 Conn. App. 162, 664 A.2d 315 (1995).
[FN8] Maryland Cas. Co. v. Owens, 261 Ala. 446, 74 So. 2d 608 (1954); Cozine v. Bonnick, 245
S.W.2d 935 (Ky. 1952); West St. Louis Trust Co. of St. Louis v. Brokaw, 232 Mo. App. 209, 102
S.W.2d 792 (1937).
[FN9] § 172.
[FN10] In re Carl R., 128 Cal. App. 4th 1051, 27 Cal. Rptr. 3d 612, 197 Ed. Law Rep. 324 (4th Dist.
2005), as modified on denial of reh'g, (May 25, 2005).
rights reserved.
END OF DOCUMENT


Infants
VI. Actions
4. In Whose Name Actions Brought; Effect of Lack of Representation
a. In General
§ 163. Generally
Although a minor has the right to sue and be sued,[1] a minor lacks the procedural capacity to institute a
civil proceeding, or to appeal, in his or her own name and must sue by his or her guardian or some other legally
authorized person unless expressly authorized by statute to proceed otherwise.[2] This standing defect is cur-
able, and if a minor mistakenly brings an action or appeal in his or her own name, such defect may usually be
cured by the subsequent appointment of a next friend or guardian ad litem.[3]
In some jurisdictions, the next friend of an infant plaintiff cannot maintain a suit in his or her own name, but
the suit must be brought in the name of the infant,[4] or in the name of the infant by his or her next friend, and
not in the name of the next friend acting for the infant.[5]
The courts are not in agreement whether the filing of a complaint in an infant's action in the name of the
next friend rather than in the name of the infant is a ground for the dismissal of the action or subject to amend-
ment.[6] In some cases, the courts hold that when the complaint or bill in an infant's suit is filed not in the name
of the infant but in the name of his or her next friend, the defect in the complaint or bill is not a mere technical-
ity which can be cured by amendment but is a ground for dismissal of the suit.[7] In other jurisdictions,
however, although the proper method of instituting an action of an infant is to bring the petition in his or her
name by his or her next friend or guardian ad litem, an infant's suit brought in the name of a person acting as his
or her next friend is, nevertheless, substantially a suit by the infant and hence amendable so as to state the
plaintiff correctly.[8]
[FN1] §§ 142 to 145.
[FN2] § 138.

[FN3] § 168.
[FN4] Morgan v. Potter, 157 U.S. 195, 15 S. Ct. 590, 39 L. Ed. 670 (1895); Cozine v. Bonnick, 245
S.W.2d 935 (Ky. 1952); Carbonneau v. Hoosier Engineering Co., 96 N.H. 240, 73 A.2d 802 (1950);
Ebbert v. Westfall, 123 W. Va. 690, 17 S.E.2d 787 (1941).
[FN5] Cozine v. Bonnick, 245 S.W.2d 935 (Ky. 1952); Jones v. Kansas City, Ft. S. & M.R. Co., 178
Mo. 528, 77 S.W. 890 (1903).
[FN6] §§ 167, 168.
[FN7] Ex parte Cabaniss, 235 Ala. 181, 178 So. 1 (1937); Ebbert v. Westfall, 123 W. Va. 690, 17
S.E.2d 787 (1941).
[FN8] Jackson v. Sanders, 199 Ga. 222, 33 S.E.2d 711, 159 A.L.R. 638 (1945).
rights reserved.
END OF DOCUMENT


Infants
VI. Actions
b. Lack of Representation
§ 164. Generally
When a case involves the unrepresented interests of a child, the court has a duty to appoint a guardian ad
litem or next friend to assure the protection of the child's interests.[1] Ordinarily, the requirement that an infant
be represented by a guardian ad litem or some other legally authorized representative is a matter not of jurisdic-
tion but of procedure.[2] Therefore, a judgment rendered against an infant without such representation is merely
erroneous or voidable, and not void,[3] and is not subject to collateral attack.[4]
There is, however, authority for the view that if there is a statutory requirement that an infant must sue by
his or her next friend, the court has no jurisdiction over an infant plaintiff or petitioner if not represented by his
or her next friend, and the judgment rendered in the cause is therefore void.[5]
[FN1] §§ 149 to 154.
[FN2] Pacific Coast Joint Stock Land Bank of San Francisco v. Clausen, 8 Cal. 2d 364, 65 P.2d 352
(1937); Thomas v. Navas, 47 Haw. 605, 393 P.2d 645 (1964); Trolinger v. Cluff, 56 Idaho 570, 57 P.2d
332 (1936); Tart v. Register, 257 N.C. 161, 125 S.E.2d 754 (1962); Ritzler v. Eckleberry, 167 Ohio St.
439, 5 Ohio Op. 2d 118, 149 N.E.2d 728 (1958); Lipscomb v. Poole, 247 S.C. 425, 147 S.E.2d 692
(1966); Gross v. Griffin, 221 S.W. 764 (Tex. Civ. App. Texarkana 1920); Ballard v. Buist, 8 Utah 2d
308, 333 P.2d 1071 (1959); Linn v. Collins, 77 W. Va. 592, 87 S.E. 934 (1916); In re Thompson's Will,
212 Wis. 172, 248 N.W. 167 (1933).
[FN3] Cook v. Winters, 645 F. Supp. 158 (S.D. Tex. 1986) (applying Texas law); Davie v. Padgett, 117
Ark. 544, 176 S.W. 333 (1915); Allied American Ins. Co. v. Ayala, 247 Ill. App. 3d 538, 186 Ill. Dec.
717, 616 N.E.2d 1349 (2d Dist. 1993); Beardsley v. Clark, 229 Iowa 601, 294 N.W. 887 (1940); Bolster
v. Monroe County Bd. of Road Com'rs, 192 Mich. App. 394, 482 N.W.2d 184 (1991); Cox v. Wrinkle,

267 S.W.2d 648 (Mo. 1954); Robinson v. Gatch, 85 Ohio App. 484, 40 Ohio Op. 345, 54 Ohio L. Abs.
437, 87 N.E.2d 904 (1st Dist. Hamilton County 1949); Allen v. Hickman, 1963 OK 156, 383 P.2d 676
(Okla. 1963); Hamilton v. Moore, 335 Pa. 433, 6 A.2d 787 (1939); Gross v. Griffin, 221 S.W. 764 (Tex.
Civ. App. Texarkana 1920); Linn v. Collins, 77 W. Va. 592, 87 S.E. 934 (1916); In re Thompson's Will,
212 Wis. 172, 248 N.W. 167 (1933).
[FN4] Colt v. Colt, 111 U.S. 566, 4 S. Ct. 553, 28 L. Ed. 520 (1884); Cook v. Winters, 645 F. Supp.
158 (S.D. Tex. 1986); Linn v. Collins, 77 W. Va. 592, 87 S.E. 934 (1916).
[FN5] Prudential Ins. Co. v. Gleason, 185 Miss. 243, 187 So. 229 (1939); Pigg v. Com., 17 Va. App.
756, 441 S.E.2d 216 (1994).
rights reserved.
END OF DOCUMENT


Infants
VI. Actions
§ 165. As entitlement to new or separate trial
In some jurisdictions, an unrepresented infant is not entitled to a new trial for that reason absent a showing
of a good defense to the action[1] or a showing of some injustice to the infant.[2] In others, however, an infant
defendant against whom a judgment or verdict is rendered without proper representation is entitled to a new trial
solely on the ground of the lack of proper representation.[3]
Observation:
When the infant is not represented in a settlement proceeding, a separate action by the child for wrongful death
is not precluded by the settlement action.[4]
[FN1] Beardsley v. Clark, 229 Iowa 601, 294 N.W. 887 (1940).
[FN2] Zielinski v. Pleason, 299 Ill. App. 594, 20 N.E.2d 620 (1st Dist. 1939); Tart v. Register, 257
N.C. 161, 125 S.E.2d 754 (1962); Hamilton v. Moore, 335 Pa. 433, 6 A.2d 787 (1939); Goodall v.
Doss, 44 Tenn. App. 145, 312 S.W.2d 875 (1958).
A parent may not protest the court's failure to appoint a guardian on the basis that the parents' own in-
terests were harmed when no harm to the child is shown. Van Pelt v. Van Pelt, 824 S.W.2d 135 (Mo.
Ct. App. W.D. 1992).
[FN3] Cox v. Wrinkle, 267 S.W.2d 648 (Mo. 1954); Keenan v. Flanagan, 50 R.I. 321, 147 A. 617
(1929).
As to grounds for new trial, generally, see Am. Jur. 2d, New Trial §§ 61 to 367.

[FN4] Gomez v. Maricopa County, 175 Ariz. 469, 857 P.2d 1323 (Ct. App. Div. 1 1993).
rights reserved.
END OF DOCUMENT


Infants
VI. Actions
§ 166. As reversible error
While the appointment of a guardian ad litem is discretionary with the court and will not be overturned on
review absent an abuse of discretion,[1] the failure to appoint a guardian ad litem for a minor, although not res-
ulting in a void judgment, is reversible error on direct appeal,[2] and such cases must be remanded.[3] When,
however, the best interests of the child would not be served by reversing and remanding the case, the appellate
court may decline to exercise its equitable power to sua sponte raise the issue.[4] It is reversible error for a court
to fail to appoint a next friend for a minor child in a paternity and support action as the child's interests might
conflict with the views of the mother who brings the suit.[5]
Practice Tip:
Although a judgment against an infant defendant for whom no guardian ad litem was appointed will be reversed
or set aside as to the infant, it generally will be upheld as to other defendants,[6] particularly when an adult de-
fendant failed to request the court to appoint a guardian ad litem for the infant defendant and the right to do so
was available to the adult.[7]
[FN1] § 152.
[FN2] Ridgeway v. Strickling, 442 So. 2d 106 (Ala. Civ. App. 1983); Cowling v. Hill, 69 Ark. 350, 63
S.W. 800 (1901); Thurston v. Tubbs, 250 Ill. 540, 95 N.E. 479 (1911); Lechner v. Whitesell by
Whitesell, 811 S.W.2d 859 (Mo. Ct. App. S.D. 1991); Bielawski v. Burke, 121 Vt. 62, 147 A.2d 674, 69
A.L.R.2d 1373 (1959); Linn v. Collins, 77 W. Va. 592, 87 S.E. 934 (1916).
[FN3] State ex rel. Div. of Family Services v. W.L.J., 876 S.W.2d 29 (Mo. Ct. App. S.D. 1994).
[FN4] S.——- v. S.——-, 595 S.W.2d 357 (Mo. Ct. App. W.D. 1980).

[FN5] S.J.V. by Blank v. Voshage, 860 S.W.2d 802 (Mo. Ct. App. E.D. 1993).
[FN6] Cowling v. Hill, 69 Ark. 350, 63 S.W. 800 (1901); Robinson v. Gatch, 85 Ohio App. 484, 40
Ohio Op. 345, 54 Ohio L. Abs. 437, 87 N.E.2d 904 (1st Dist. Hamilton County 1949).
[FN7] Holland v. Kodimer, 11 Cal. 2d 40, 77 P.2d 843 (1938).
rights reserved.
END OF DOCUMENT


Infants
VI. Actions
§ 167. How objection is made to lack of representation of infant
The objection that an infant plaintiff is suing or being sued without the required representation by a legally
authorized person must be made by a plea in abatement or by a plea or answer in the nature thereof and the ob-
jection is waived by the defendant if he or she pleads to the merits of the suit without raising it in such manner.[
1]
Practice Tip:
This objection is also not available to the defendant if the infant plaintiff attains his or her majority during the
pendency of the action and thereupon manifests by his or her conduct in the cause an adoption or ratification of
the action erroneously commenced.[2]
An erroneous or voidable judgment against an infant rendered without proper representation can be set aside
by proper appellate proceedings[3] whether or not the plaintiff knew of the infancy of the defendant at the time
the judgment was rendered.[4]
[FN1] Davie v. Padgett, 117 Ark. 544, 176 S.W. 333 (1915); Thomas v. Navas, 47 Haw. 605, 393 P.2d
645 (1964); Gross v. Griffin, 221 S.W. 764 (Tex. Civ. App. Texarkana 1920); Blumauer v. Clock, 24
Wash. 596, 64 P. 844 (1901).
As to the objection to an action because of the incapacity of a party, generally, see Am. Jur. 2d, Parties
§ 368.
As to pleas in abatement, generally, see Am. Jur. 2d, Pleading §§ 253 to 268.
[FN2] Bell v. Burkhalter, 183 Ala. 527, 62 So. 786 (1913).

[FN3] Thurston v. Tubbs, 250 Ill. 540, 95 N.E. 479 (1911); State v. Stark, 149 Iowa 749, 129 N.W. 331
(1911).
As to appellate procedure, generally, see Am. Jur. 2d, Appellate Review §§ 252 to 386.
[FN4] Bielawski v. Burke, 121 Vt. 62, 147 A.2d 674, 69 A.L.R.2d 1373 (1959).
rights reserved.
END OF DOCUMENT


Infants
VI. Actions
§ 168. Curing the defect of lack of representation
Although an infant lacks capacity to institute a civil proceeding, or to appeal, in his or her own name,[1] this
standing defect may be cured[2] by the subsequent appointment of a next friend or guardian ad litem to prosec-
ute the action and by amending the pleadings accordingly.[3] This is true even when the trial court enters a sum-
mary judgment against a defendant minor prior to the appointment of a guardian ad litem provided that the court
reconsiders the summary judgment and affirms them after the appointment of the guardian ad litem.[4]
An action by or against an infant for whom no representative has been appointed is subject to a dismissal
motion[5] although the dismissal should be without prejudice.[6]
Practice Tip:
That the person who purports to act as a next friend of an infant plaintiff is not authorized by law to do so be-
cause of his or her nonresidency is not a fatal defect but a mere irregularity which can be cured by the appoint-
ment of another person who is qualified.[7]
[FN1] § 138.
[FN2] Petition of Frazer, 721 A.2d 920 (Del. 1998).
[FN3] Petition of Frazer, 721 A.2d 920 (Del. 1998); Kingsley v. Kingsley, 623 So. 2d 780 (Fla. Dist.
Ct. App. 5th Dist. 1993); Thomas v. Navas, 47 Haw. 605, 393 P.2d 645 (1964); Lipscomb v. Poole, 247
S.C. 425, 147 S.E.2d 692 (1966); Ballard v. Buist, 8 Utah 2d 308, 333 P.2d 1071 (1959).
[FN4] Matney v. Evans, 93 N.M. 182, 598 P.2d 644 (Ct. App. 1979).

[FN5] S.J.H. v. C.J., 680 So. 2d 313 (Ala. Civ. App. 1996).
[FN6] Mosley v. Lankford, 244 Ga. 409, 260 S.E.2d 322 (1979).
[FN7] Cozine v. Bonnick, 245 S.W.2d 935 (Ky. 1952).
As to whether irregularity in the appointment of the person to represent an infant plaintiff is a defect
that can be cured, see § 157.
rights reserved.
END OF DOCUMENT


Infants
VI. Actions
5. Powers, Duties, and Liabilities of Representative
a. In General
§ 169. Generally
Although a minor is required to appear through a guardian or next friend, the minor is the real party in in-
terest, and the representative is merely an officer of the court whose responsibility it is to ensure that interests of
the child are protected and well represented.[1] A next friend and a guardian ad litem are both officers of the
court and their rights and duties are basically the same.[2] However, a next friend is not a party to a suit.[3] A
parent, as next friend of a child, has power to claim and pursue the rights of the infant but is powerless to yield
or cede it to others.[4] The next friend or guardian ad litem representing an infant plaintiff has full power to act
for the purpose of securing the infant's rights and may do all things that are necessary to this end,[5] such as—
— selecting the tribunal in which a suit brought on behalf of the infant shall be prosecuted.[6]
— verifying a petition or complaint to be filed in the name of the infant.[7]
— selecting or employing counsel to assist in the prosecution of the action for the infant.[8]
— filing any motion necessary to protect the best interests of the child.[9]
In the assertion of the infant's rights, the next friend may defend against incidental or opposing rights, such
as offsets, counterclaims, or other defenses or demands connected with the original claim.[10] A next friend may
also file a petition for a change of venue.[11]
A next friend acts, however, only for the purpose of the suit,[12] and his or her power is strictly limited to
the performance of the precise duty imposed by the law.[13]
Observation:
One who brings an action in the name of an infant as a next friend is thereby estopped from afterward asserting a
personal claim inconsistent with that of the infant.[14]

[FN1] § 159.
1999).
[FN3] Sawyer ex rel. Sawyer v. Kindred Nursing Centers West, LLC, 225 P.3d 1161 (Colo. App. 2009)
, cert. denied, 2010 WL 597983 (Colo. 2010).
Dist. 2005).
[FN5] Teele v. Kerr, 261 N.C. 148, 134 S.E.2d 126 (1964); Roberts v. Vaughn, 142 Tenn. 361, 219
S.W. 1034, 9 A.L.R. 1528 (1920).
[FN6] In re Moore, 209 U.S. 490, 28 S. Ct. 706, 52 L. Ed. 904 (1908).
[FN7] § 198.
[FN8] Lee v. Leibold, 102 Colo. 408, 79 P.2d 1049, 116 A.L.R. 1319 (1938); Garner v. I. E. Schilling
Co., 128 Fla. 353, 174 So. 837, 111 A.L.R. 682 (1937); Ragan v. Looney, 377 S.W.2d 273 (Mo. 1964).
As to the ability to bind the infant under a contract attorney's fees, see § 173.
[FN9] In re C.T., 119 Ohio St. 3d 494, 2008-Ohio-4570, 895 N.E.2d 527 (2008).
[FN10] Crawford v. Amusement Syndicate Co., 37 S.W.2d 581 (Mo. 1931); Johnston County v. Ellis,
226 N.C. 268, 38 S.E.2d 31 (1946).
[FN11] Raming v. Metropolitan St. Ry. Co., 157 Mo. 477, 57 S.W. 268 (1900).
[FN13] Cozine v. Bonnick, 245 S.W.2d 935 (Ky. 1952); Rowland v. Beauchamp, 253 N.C. 231, 116
S.E.2d 720, 79 A.L.R.2d 1263 (1960).
As to the right of a representative of an infant plaintiff to represent the infant in related litigation or pro-
ceedings, see § 172.
[FN14] Gardner v. Denison, 217 Mass. 492, 105 N.E. 359 (1914); Dodson v. Roberts, 4 S.W.2d 155
(Tex. Civ. App. Eastland 1927).
rights reserved.
END OF DOCUMENT


Infants
VI. Actions
a. In General
§ 170. Guardian ad litem
West's Key Number Digest, Infants 77, 84 to 86
Typically, a guardian ad litem derives his or her powers and duties from applicable statutes.[1]
A guardian ad litem appointed to represent an infant defendant is regarded as an officer or agent of the
court[2] or as a fiduciary.[3] He or she is charged with the duty of protecting the rights and best interests of the
infant[4] and, when appropriate, making recommendations to the court on the minor's behalf.[5] A civil guardian
ad litem's role is more than an attorney's but less than a party's, in that the guardian oversees any attorney repres-
enting a minor's litigation-related interests and may make tactical and even fundamental decisions affecting the
litigation but always with the interest of the minor in mind.[6] A guardian ad litem is an attorney entitled to ar-
gue his or her client's case to the court as is any other attorney, but he or she is not delegated any special author-
ity of the court.[7]
While representation by a guardian ad litem generally is limited to matters related to the suit for which he or
she is appointed,[8] the appointment of a guardian ad litem vests the guardian with the exclusive authority to
proceed on behalf of the minor in the pending lawsuit.[9]
A guardian ad litem appointed to represent an infant defendant is to appear for the infant and defend the ac-
tion[10] although the appearance of a guardian ad litem for the infant does not give the court jurisdiction over
the infant when the infant is not properly served.[11] However, a minor's guardian ad litem owes no duty to act
as the minor's attorney.[12]
The guardian ad litem generally must subscribe the infant's plea or answer[13] and is entitled to petition for
a change of venue.[14]
[FN1] § 151.

1999); Hoffman v. Morgan, 1952 OK 199, 206 Okla. 567, 245 P.2d 67, 30 A.L.R.2d 1141 (1952).
[FN3] Plant v. Humphries, 66 W. Va. 88, 66 S.E. 94 (1909).
Conflict of interest rules apply to guardians ad litem. Townsend v. Townsend, 323 S.C. 309, 474 S.E.2d
424 (1996).
[FN4] In re William H., 88 Conn. App. 511, 870 A.2d 1102 (2005); Sarron v. Sarron, 564 So. 2d 206
(Fla. Dist. Ct. App. 3d Dist. 1990); Padilla v. Melendez, 228 Ga. App. 460, 491 S.E.2d 905 (1997);
Weiler v. Lutz, 501 N.W.2d 667 (Minn. Ct. App. 1993), aff'd, 512 N.W.2d 868 (Minn. 1994); Gainey v.
Edington, 24 So. 3d 333 (Miss. Ct. App. 2009); In re Adoption of F.C., 274 S.W.3d 478 (Mo. Ct. App.
S.D. 2008); State v. Joanna V., 2004-NMSC-024, 136 N.M. 40, 94 P.3d 783 (2004); Shainwald v.
Shainwald, 302 S.C. 453, 395 S.E.2d 441 (Ct. App. 1990); Land Rover U.K., Ltd. v. Hinojosa, 210
S.W.3d 604 (Tex. 2006); Waukesha County v. Tadych, 197 Wis. 2d 653, 541 N.W.2d 782 (Ct. App.
1995).
[FN5] Zbaraz v. Hartigan, 776 F. Supp. 375 (N.D. Ill. 1991) (applying Illinois law); Byrd v. Woodruff,
891 S.W.2d 689 (Tex. App. Dallas 1994), writ denied, (May 4, 1995) and writ withdrawn, (Sept. 28,
1995) and writ dismissed by agreement, (Sept. 28, 1995).
[FN6] In re Josiah Z., 36 Cal. 4th 664, 31 Cal. Rptr. 3d 472, 115 P.3d 1133 (2005), as modified, (Aug.
10, 2005).
[FN7] M.R.J. v. D.R.B., 34 So. 3d 1287 (Ala. Civ. App. 2009).
[FN8] § 162.
As to a guardian ad litem's representation of the infant in related litigation or proceedings, see § 172.
[FN9] Ott v. Little Co. of Mary Hosp., 273 Ill. App. 3d 563, 210 Ill. Dec. 75, 652 N.E.2d 1051 (1st
Dist. 1995).
[FN10] Spotts v. Spotts, 331 Mo. 917, 55 S.W.2d 977, 87 A.L.R. 660 (1932).
[FN11] § 192.
[FN12] In re Guardianship of Robert D., 269 Neb. 820, 696 N.W.2d 461 (2005); Miller v. Armogida,
877 S.W.2d 361 (Tex. App. Houston 1st Dist. 1994), writ denied, (Oct. 27, 1995).
The rule providing that a representative of a minor may sue in the name of the minor does not confer
upon the representative a right to practice law on behalf of that minor. Chambers v. Tibbs, 980 So. 2d
1010, 232 Ed. Law Rep. 541 (Ala. Civ. App. 2007).
[FN13] § 198.
[FN14] State v. Pyle, 204 Ind. 509, 184 N.E. 776 (1933).

rights reserved.
END OF DOCUMENT


Infants
VI. Actions
a. In General
§ 171. Guardian ad litem—Scope of discretion
A guardian ad litem is required to exercise the same vigilance and skill that he or she would in his or her
own action[1] and should prepare and conduct the defense of his or her ward with as much care as though acting
under a retainer.[2] The guardian ad litem is under the duty not only to act in the utmost good faith but also to
act diligently[3] and to the fullest extent reasonable in the particular case.[4] A guardian ad litem is not permit-
ted to waive any of the substantial rights of the ward or to consent to anything which would prejudice the
minor's rights.[5]
A guardian ad litem must also exercise reasonable diligence in carrying out the responsibility of protecting
the appellate rights of the infant if, in the reasonable judgment of the guardian ad litem, an appeal is necessary.[
6] A guardian ad litem is not to serve as the attorney for the minor and duplicate tasks already being performed
competently by the plaintiff's attorneys.[7]
If a guardian ad litem neglects his or her duty, he or she is answerable in damages for his or her negligence.[
8]
[FN1] Spotts v. Spotts, 331 Mo. 917, 55 S.W.2d 977, 87 A.L.R. 660 (1932); Byrd v. Woodruff, 891
S.W.2d 689 (Tex. App. Dallas 1994), writ denied, (May 4, 1995) and writ withdrawn, (Sept. 28, 1995)
and writ dismissed by agreement, (Sept. 28, 1995).
[FN2] Billups v. Scott, 253 Neb. 287, 571 N.W.2d 603 (1997).
[FN3] Franklin County v. Jones, 245 N.C. 272, 95 S.E.2d 863 (1957); Byrd v. Woodruff, 891 S.W.2d
dismissed by agreement, (Sept. 28, 1995); State ex rel. Amy M. v. Kaufman, 196 W. Va. 251, 470

S.E.2d 205 (1996).
[FN4] Waukesha County v. Tadych, 197 Wis. 2d 653, 541 N.W.2d 782 (Ct. App. 1995).
[FN6] Grunewald v. Technibilt Corp., 931 S.W.2d 593 (Tex. App. Dallas 1996), writ denied, (Nov. 26,
1996); State ex rel. Amy M. v. Kaufman, 196 W. Va. 251, 470 S.E.2d 205 (1996).
[FN7] Jocson v. Crabb, 196 S.W.3d 302 (Tex. App. Houston 1st Dist. 2006).
[FN8] § 179.
rights reserved.
END OF DOCUMENT


Infants
VI. Actions
a. In General
§ 172. Representation in related litigation or proceedings
The power of a next friend generally is limited to the prosecution of the particular action in which he or she
is appointed.[1] The power of a guardian ad litem likewise is ordinarily limited to matters related to the particu-
lar action in which he or she is appointed.[2] However, the guardian ad litem participates in a case to the extent
necessary to adequately protect a minor's interests and thus can prosecute an appeal from the court in which the
guardian was appointed,[3] remove a suit to federal court from state court, and initiate extraordinary proceed-
ings, such as writ of mandamus or prohibition, on behalf of the infant whom the guardian ad litem was appoin-
ted to represent.[4]
[FN1] § 162.
[FN2] § 162.
[FN3] In re Estate of Finley, 151 Ill. 2d 95, 176 Ill. Dec. 1, 601 N.E.2d 699 (1992); Sosa By and
Through Grant v. Koshy, 961 S.W.2d 420 (Tex. App. Houston 1st Dist. 1997).
[FN4] Sosa By and Through Grant v. Koshy, 961 S.W.2d 420 (Tex. App. Houston 1st Dist. 1997).
A guardian ad litem has standing to bring an action on behalf of a juvenile alleging that the Department
of Health and Rehabilitative Services breached the duty it owed to the juvenile when the juvenile court
initially entered an order empowering the guardian ad litem to represent the juvenile not only in juven-
ile court but also in proceedings outside the court when appropriate. Department of Health and Rehabil-
itative Services v. B.J.M., 656 So. 2d 906 (Fla. 1995).
rights reserved.

END OF DOCUMENT


Infants
VI. Actions
a. In General
§ 173. Ability to make contracts for infant; for attorney's fees
Forms
Am. Jur. Pleading and Practice Forms, Infants § 51 (Petition or application—By guardian ad litem or next
friend—Employment of attorney and payment of attorney's fees)
Am. Jur. Pleading and Practice Forms, Infants § 52 (Order—Authorizing guardian ad litem to employ attor-
ney and pay attorney's fees)
As a general rule, the next friend or guardian ad litem of an infant plaintiff has no power to make a contract
on behalf of the infant.[1] While a next friend or guardian ad litem representing an infant party to an action may
employ counsel to assist him or her in the prosecution or defense of the action on behalf of the infant,[2] he or
she has no power to contract for the amount of compensation to be paid to such counsel which will bind the in-
fant,[3] at least when there is no approval of the contract by the court.[4] However, since attorneys employed by
a next friend or guardian ad litem of an infant are entitled to a reasonable fee,[5] while an infant's next friend
does not have the authority to bind the infant to a contract for an unreasonable compensation for the service of
an attorney,[6] the infant is bound by a contract made by a next friend fixing a reasonable compensation for the
attorney's services.[7]
A different rule has been applied when a guardian ad litem enters into a contingent fee contract on behalf of
a minor in a negligence action. In such a situation, the contract has been upheld[8] although the court may exam-
ine the reasonableness of the fee.[9]
Cases:
Trial court acted within its discretion in finding $131,000 to be a reasonable fee for attorney who obtained a

$425,000 settlement in minor's personal injury action; although case did not present an extraordinarily high de-
gree of novelty or difficulty, and award compensated attorney at an effective rate of $1,021.84 per hour, more
than two-and-a-half times his usual, uniquely high fee, attorney obtained a settlement eight-and-a-half times
greater than defendant's liability insurance policy, minor's net recovery was approximately four-and-a-half times
the limits of policy, attorney was able to avoid the uncertain outcome and additional hours associated with trial,
and at the beginning of the case, attorney could not have known what he would ultimately recover on minor's be-
half. Wright ex rel. Wright v. Wright, 337 S.W.3d 166 (Tenn. 2011).
[END OF SUPPLEMENT]
[FN1] Campbell v. Campbell, 350 Mo. 169, 165 S.W.2d 851 (1942).
[FN2] § 169.
[FN3] Lee v. Leibold, 102 Colo. 408, 79 P.2d 1049, 116 A.L.R. 1319 (1938); Weir v. Kickbush, 353
S.W.2d 627 (Mo. 1962).
[FN4] Ryan v. Philadelphia & Reading Coal & Iron Co., 189 F. 253 (C.C.E.D. N.Y. 1911).
As to the attorney's right to compensation, see § 187.
[FN5] § 187.
[FN6] Everson v. Hurn, 89 Neb. 716, 131 N.W. 1130 (1911).
[FN7] Hickman & Wells v. McDonald, 164 Iowa 50, 145 N.W. 322 (1914); Sanders v. Woodbury, 146
Ky. 153, 142 S.W. 207 (1912).
As to attorney's fees as a necessity, see § 150.
[FN8] Sneed v. Sneed, 1984 OK 22, 681 P.2d 754 (Okla. 1984).
[FN9] Donnarumma v. Barracuda Tanker Corp., 79 F.R.D. 455 (C.D. Cal. 1978); Knupp v. Schmelzer,
87 Misc. 2d 641, 386 N.Y.S.2d 339 (Sup 1976); Sneed v. Sneed, 1984 OK 22, 681 P.2d 754 (Okla.
1984); Shaw v. Bradley, 23 Pa. D. & C.4th 255, 1995 WL 610248 (C.P. 1995).
rights reserved.
END OF DOCUMENT


Infants
VI. Actions
b. Particular Matters
§ 174. Generally; admission, waiver, stipulation, or consent
The next friend or guardian ad litem of an infant cannot bind the infant by any admissions, waivers, or stip-
ulations[1] nor can the representative waive any of the minor's substantial rights.[2]
Subject to the fiduciary duties owed to the infant and the requirement that court approval be obtained for
certain acts, a guardian ad litem has the power to assent to procedural steps that will facilitate the progress of the
suit but do not affect the infant's substantial rights.[3]
[FN1] In re Cowan, 32 Haw. 928, 1933 WL 2414 (1933); Campbell v. Campbell, 350 Mo. 169, 165
S.W.2d 851 (1942); Anderson v. Anderson, 133 N.J. Eq. 311, 32 A.2d 83 (Ch. 1943); Greene v. Mabey,
35 R.I. 11, 85 A. 118 (1912); Reasoner v. State, 463 S.W.2d 55 (Tex. Civ. App. Houston 14th Dist.
1971), writ refused n.r.e., (June 2, 1971).
[FN2] Campbell v. Campbell, 350 Mo. 169, 165 S.W.2d 851 (1942); Reasoner v. State, 463 S.W.2d 55
(Tex. Civ. App. Houston 14th Dist. 1971), writ refused n.r.e., (June 2, 1971).
[FN3] Kingsbury v. Buckner, 134 U.S. 650, 10 S. Ct. 638, 33 L. Ed. 1047 (1890); Matter of Estate of
Brandon, 902 P.2d 1299 (Alaska 1995); J.W. v. Superior Court, 17 Cal. App. 4th 958, 22 Cal. Rptr. 2d
527 (2d Dist. 1993).
As to admissions and waivers by a general guardian for an infant, see Am. Jur. 2d, Guardian and Ward
§ 119.
rights reserved.

END OF DOCUMENT


Infants
VI. Actions
§ 175. Compromise or settlement
Forms
Am. Jur. Pleading and Practice Forms, Infants § 103 (Petition or application—For order approving com-
promise of disputed claim of infant—Personal injury—No action pending)
Am. Jur. Pleading and Practice Forms, Infants § 104 (Petition or application—For order approving com-
promise of disputed claim of infant—Personal injury—Wrongful death—Action pending)
Am. Jur. Pleading and Practice Forms, Infants § 109 (Order—Approving compromise of infant's claim—No
action pending)
Am. Jur. Pleading and Practice Forms, Infants § 110 (Order—Approving compromise of infant's
claim—Action pending)
While a next friend, guardian ad litem, or other duly appointed person acting for an infant in a litigation
may negotiate for a compromise or settlement of the litigation,[1] a natural guardian, without a court appoint-
ment, cannot enter into a binding settlement of an infant's claim[2] absent court approval.[3]
A compromise or settlement generally is not binding upon an infant[4] unless judicial approval is obtained.[
5]
Practice Tip:
Once a guardian ad litem is appointed, an action may not thereafter be compromised, settled, or dismissed
without court approval, ensuring that the interests of the infant have been fully and fairly considered.[6]
In reviewing a proposed settlement, a guardian ad litem's duty includes evaluating the damages suffered by

the minor, the adequacy of the settlement, the proposed apportionment and manner of distribution of the settle-
ment proceeds, and the amount of attorney's fees charged by the plaintiff's attorney.[7]
If the court believes a proposed settlement to be in an infant's best interest, it may order the guardian or con-
servator of the infant to effectuate the settlement and, if that person refuses, may then appoint a guardian ad
litem to settle the case on the infant's behalf.[8]
A compromise agreed to by an infant's next friend and approved by the court and put into judgment be-
comes the action of the court and binds the infant.[9] All questions of the authority of the next friend of an in-
fant to bind him or her by an agreement to compromise an action are eliminated by the entry of an agreed judg-
ment based upon the compromise agreement of the parties.[10]
[FN1] Safai v. Safai, 164 Cal. App. 4th 233, 78 Cal. Rptr. 3d 759 (6th Dist. 2008); Estate of Pew, 440
Pa. Super. 195, 655 A.2d 521 (1994); Peoples Nat. Bank of Rock Hill, S. C. v. Rogers, 218 S.C. 11, 61
S.E.2d 391 (1950); Jocson v. Crabb, 196 S.W.3d 302 (Tex. App. Houston 1st Dist. 2006).
[FN2] Y.W. By and Through Smith v. National Super Markets, Inc., 876 S.W.2d 785 (Mo. Ct. App.
E.D. 1994).
[FN3] Lopez v. Variety Children's Hosp., 600 So. 2d 506 (Fla. Dist. Ct. App. 3d Dist. 1992).
[FN4] Matter of Estate of Brandon, 902 P.2d 1299 (Alaska 1995); Garner v. I. E. Schilling Co., 128 Fla.
353, 174 So. 837, 111 A.L.R. 682 (1937); Weir v. Kickbush, 353 S.W.2d 627 (Mo. 1962).
As to the effect of a compromise or settlement made by a third person on behalf of an infant, see § 37.
[FN5] § 140.
[FN6] County of Shasta v. Caruthers, 31 Cal. App. 4th 1838, 38 Cal. Rptr. 2d 18 (3d Dist. 1995).
[FN7] Jocson v. Crabb, 196 S.W.3d 302 (Tex. App. Houston 1st Dist. 2006).
Dist. 1995).
As to the compromise and release of a ward's claims by his or her guardian, see Am. Jur. 2d, Guardian
and Ward § 122.
[FN9] § 211.
(1897); Peoples Nat. Bank of Rock Hill, S. C. v. Rogers, 218 S.C. 11, 61 S.E.2d 391 (1950); Roberts v.
Vaughn, 142 Tenn. 361, 219 S.W. 1034, 9 A.L.R. 1528 (1920).
rights reserved.

END OF DOCUMENT


Infants
VI. Actions
§ 176. Receiving property on behalf of infant
Forms
Am. Jur. Pleading and Practice Forms, Infants § 54 (Bond of guardian ad litem—Under statute requiring
bond where receiving infant's money or property)
Even though a next friend may bring a suit on behalf of a minor, the next friend does not automatically be-
come the manager of any funds recovered.[1] Rather, in the absence of any statutory provision, a next friend or
guardian ad litem of an infant is not authorized to receive any of the infant's property.[2]
In some jurisdictions, a statute provides that a guardian ad litem cannot receive any money or property of
the infant until the guardian files a bond as security therefor.[3] A failure to have the bond upon the receipt of
money by the next friend results in the release or satisfaction or discharge given by him or her being void but
does not affect in any way the validity of the settlement or judgment.[4]
[FN1] Retana v. Tanner, 869 S.W.2d 669 (Tex. App. San Antonio 1994).
As to the authority of guardians ad litem or next friends to collect judgments owed to an infant, see §
177.
[FN3] Pacheco v. Delgardo, 46 Ariz. 401, 52 P.2d 479, 103 A.L.R. 494 (1935); Kress v. Lederle Labor-
atories, a Div. of American Cyanamid Co., 901 S.W.2d 206 (Mo. Ct. App. E.D. 1995).
[FN4] Kress v. Lederle Laboratories, a Div. of American Cyanamid Co., 901 S.W.2d 206 (Mo. Ct. App.

E.D. 1995).
Absent a bond, the payment to the guardian is not performance under the compromise agreement.
Pacheco v. Delgardo, 46 Ariz. 401, 52 P.2d 479, 103 A.L.R. 494 (1935).
rights reserved.
END OF DOCUMENT


Infants
VI. Actions
§ 177. Collecting judgment on behalf of infant
In the absence of a special statute, the next friend or guardian ad litem of an infant has no authority to re-
ceive the payment of a judgment rendered in favor of the infant[1] unless a bond is first obtained.[2]
Practice Tip:
The next friend or guardian ad litem of an infant is not authorized to receive a payment of a judgment in favor of
the infant when, by statute, none but a legally qualified guardian is authorized to receive and take charge of the
property or estate of a minor.[3]
A statute which provides that a next friend for an infant may be required to execute a bond, conditioned to
account to the infant for any money or property which may be recovered in the suit, has been construed as con-
templating that the next friend has the authority to receive the payment of a judgment.[4] In some jurisdictions,
it is expressly provided by statute that a next friend or guardian ad litem of an infant may receive the proceeds of
the suit after he or she executes a bond as security therefor.[5]
Observation:
A statute requiring a bond before receiving any money or property for a minor, or acknowledging the satisfac-
tion of a judgment, is designed to protect an infant from the misuse of his or her property by a guardian ad litem
or next friend and does not, and is not intended to, provide any protection to the infant as concerns the suffi-
ciency or wisdom of the settlement or judgment.[6]
[FN1] Collins v. Gillespy, 148 Ala. 558, 41 So. 930 (1906); Wood & Henderson v. Claiborne, 82 Ark.
514, 102 S.W. 219 (1907); Teele v. Kerr, 261 N.C. 148, 134 S.E.2d 126 (1964); Fletcher v. Parker, 53
W. Va. 422, 44 S.E. 422 (1903).

As to the authority of guardians ad litem or next friends to receive property owed to an infant, see § 176
.
[FN2] § 176.
[FN3] Paskewie v. East St. Louis & S. Ry. Co., 281 Ill. 385, 117 N.E. 1035 (1917); Mississippi State
Bar v. Attorney Y, 585 So. 2d 768 (Miss. 1991).
As to the right of an infant's general guardian to receive payment of a judgment in favor of the infant,
see Am. Jur. 2d, Guardian and Ward § 103.
[FN4] Baker v. Pere Marquette R. Co., 142 Mich. 497, 105 N.W. 1116 (1905); West St. Louis Trust Co.
of St. Louis v. Brokaw, 232 Mo. App. 209, 102 S.W.2d 792 (1937).
[FN5] Southern Ry. Co. v. McKinney, 276 F. 772 (C.C.A. 5th Cir. 1921) (applying Georgia law); Ox-
ford Knitting Mills v. Sutton, 127 Ga. 162, 56 S.E. 298 (1906); Kress v. Lederle Laboratories, a Div. of
American Cyanamid Co., 901 S.W.2d 206 (Mo. Ct. App. E.D. 1995); Hernandez v. San Antonio Public
Service Co., 297 S.W. 264 (Tex. Civ. App. San Antonio 1927), writ dismissed.
[FN6] Kress v. Lederle Laboratories, a Div. of American Cyanamid Co., 901 S.W.2d 206 (Mo. Ct. App.
E.D. 1995).
rights reserved.
END OF DOCUMENT


Infants
VI. Actions
c. Compensation and Liability of Representative
(1) Reimbursement or Compensation
§ 178. Generally; of next friend
Forms
Am. Jur. Pleading and Practice Forms, Infants § 60 (Motion and notice—For compensation of guardian ad
litem or next friend)
The next friend of an infant is entitled to be reimbursed for expenses actually paid in the litigation,[1] and
his or her right to such reimbursement is not precluded by an unsuccessful determination of the suit if the next
friend has acted in good faith and with reasonable caution.[2]
The decisions are, however, not in agreement whether the next friend of an infant plaintiff is entitled to any
compensation for services rendered. According to some cases, the next friend of an infant may be compensated
for personal services rendered in performing the duties which are necessary to the success of the infant in the
suit in which he or she represents the infant,[3] but there is also contrary authority holding a next friend is not
entitled to any compensation for his or her personal services unless he or she is a lawyer and has personally con-
ducted the litigation.[4]
[FN1] In re Rothenberg's Trust, 136 N.J. Eq. 530, 42 A.2d 767 (Ch. 1945); Roberts v. Vaughn, 142
Tenn. 361, 219 S.W. 1034, 9 A.L.R. 1528 (1920); Brown v. Erwin, 89 W. Va. 113, 108 S.E. 605 (1921)
.
[FN2] Brown v. Erwin, 89 W. Va. 113, 108 S.E. 605 (1921).
[FN3] City Nat. Bank & Trust Co. of Chicago v. Sewell, 300 Ill. App. 582, 21 N.E.2d 810 (1st Dist.
1939); In re Tutorship of Property of Huddleston, 655 So. 2d 416 (La. Ct. App. 5th Cir. 1995); Roberts

v. Vaughn, 142 Tenn. 361, 219 S.W. 1034, 9 A.L.R. 1528 (1920).
[FN4] In re Rothenberg's Trust, 136 N.J. Eq. 530, 42 A.2d 767 (Ch. 1945).
rights reserved.
END OF DOCUMENT


Infants
VI. Actions
§ 179. Of guardian ad litem
Forms
Am. Jur. Pleading and Practice Forms, Infants § 61 (Order—Granting compensation to guardian ad litem or
next friend)
The court may award a reasonable fee to a guardian ad litem for representing an infant,[1] as well as reim-
bursement for his or her expenses, including attorney's fees.[2] A court may consider the circumstances sur-
rounding the appointment of a guardian ad litem in a child custody proceeding in determining the payment of
fees to the guardian ad litem.[3]
When the fee is excessive, it will not be allowed.[4]
The court's right to award fees is implied from the right and duty to appoint a guardian ad litem and from
the necessity of assuring the infant adequate legal protection.[5] Absent a statute setting a fee schedule,[6] the
amount of the fee to be awarded to a guardian ad litem is entrusted to the trial court's discretion and the appellate
court will not disturb that discretion absent a showing of clear abuse.[7]
Observation:
Although an award for fees paid to a law guardian and related expenses in a divorce action are entrusted to the
sound discretion of the court, they are nonetheless to be controlled by the equities of the case and the financial
circumstances of the parties.[8]
Generally, a guardian ad litem may not recover fees for postlitigation services or services rendered after the
resolution of the conflict for which he or she was appointed[9] unless the court has specifically assigned him or
her future duties regarding the same lawsuit.[10]

Practice Tip:
When the guardian ad litem is forced on appeal to defend the original fee awarded by the trial court, he or she is
entitled to additional fees.[11]
Cases:
Ordinarily only the person appointed as guardian ad litem should be compensated for services under rule of
civil procedure governing compensation of guardian ad litem; however, that rule does not preclude awarding
compensation for persons other than the person designated in the trial court's order as guardian ad litem if the
evidence shows particular, unusual circumstances making services of other persons necessary for the ad litem's
duties to be fulfilled. Vernon's Ann.Texas Rules Civ.Proc., Rule 173.1 et seq. Ford Motor Co. v. Garcia, 363
S.W.3d 573 (Tex. 2012).
[END OF SUPPLEMENT]
[FN1] Commerce Ins. Co. v. Gemelli, 921 F. Supp. 25 (D. Mass. 1996); Ladden v. Ladden, 2010 WL
1539736 (Ala. Civ. App. 2010); Samco Properties, Inc. v. Cheatham, 977 S.W.2d 469 (Tex. App. Hous-
ton 14th Dist. 1998); Lofthus v. Lofthus, 270 Wis. 2d 515, 2004 WI App 65, 678 N.W.2d 393 (Ct. App.
2004).
[FN2] Ladden v. Ladden, 2010 WL 1539736 (Ala. Civ. App. 2010); In re Adoption of Kindgren, 184
Ill. App. 3d 661, 132 Ill. Dec. 745, 540 N.E.2d 485 (2d Dist. 1989); Wacker v. Wacker, 253 Neb. 630,
573 N.W.2d 113 (1998).
[FN3] S.I.E. v. J.M., 199 S.W.3d 808 (Mo. Ct. App. S.D. 2006).
[FN4] Williams v. Williams, 587 So. 2d 112 (La. Ct. App. 2d Cir. 1991); Infant X v. Children's Hosp.
of Buffalo, Inc., 197 A.D.2d 884, 602 N.Y.S.2d 483 (4th Dep't 1993); Dunn v. Dunn, 298 S.C. 365, 380
S.E.2d 836 (1989); Samco Properties, Inc. v. Cheatham, 977 S.W.2d 469 (Tex. App. Houston 14th Dist.
1998).
[FN5] Friends for all Children, Inc. v. Lockheed Aircraft Corp., 533 F. Supp. 895 (D.D.C. 1982); Nye
v. Nye, 213 Neb. 364, 329 N.W.2d 346 (1983); Hoffman v. Morgan, 1952 OK 199, 206 Okla. 567, 245
P.2d 67, 30 A.L.R.2d 1141 (1952).
[FN6] State ex rel. Friedrich v. Circuit Court for Dane County, 192 Wis. 2d 1, 531 N.W.2d 32 (1995).
[FN7] In re Marriage of Soraparu, 147 Ill. App. 3d 857, 101 Ill. Dec. 241, 498 N.E.2d 565 (1st Dist.
1986); Marks v. Marks, 203 S.W.3d 729 (Mo. Ct. App. E.D. 2006); Hafer v. Hafer, 3 Neb. App. 129,
524 N.W.2d 65 (1994); Simone-Smith v. Edwinn, 204 A.D.2d 210, 612 N.Y.S.2d 135 (1st Dep't 1994);
Payne v. Payne, 382 S.C. 62, 674 S.E.2d 515 (Ct. App. 2009); Keisling v. Keisling, 196 S.W.3d 703
(Tenn. Ct. App. 2005); Ford Motor Co. v. Chacon, 2010 WL 1986326 (Tex. App. El Paso 2010), peti-
tion for review filed, (Aug. 4, 2010).

[FN8] Kane v. Rudansky, 23 A.D.3d 349, 804 N.Y.S.2d 93 (2d Dep't 2005).
[FN9] Estate of Catlin v. General Motors Corp., 936 S.W.2d 447 (Tex. App. Houston 14th Dist. 1996).
[FN10] Brownsville-Valley Regional Medical Center, Inc. v. Gamez, 871 S.W.2d 781 (Tex. App. Cor-
pus Christi 1994), writ granted, (Sept. 15, 1994) and judgment rev'd on other grounds, 894 S.W.2d 753
(Tex. 1995).
[FN11] DeSai v. Islas, 884 S.W.2d 204 (Tex. App. Eastland 1994), writ denied, (Apr. 13, 1995).
rights reserved.
END OF DOCUMENT


Infants
VI. Actions
§ 180. Of guardian ad litem—Sources for payment
If there is a fund or property in court for disbursement, the court may order the fee of a guardian ad litem to
be paid out of the infant's interest therein.[1] Where the parties have signed a written agreement retaining the
services of a guardian ad litem, the trial court, in awarding fees and expenses incurred by the guardian ad litem,
is bound to enforce the terms of the agreement where the agreement is not contrary to public policy.[2]
The determination of who must pay the guardian ad litem's fees generally rests within the court's discretion[
3] and will not be overturned absent an abuse of discretion.[4]
A court generally may award guardian ad litem fees as a judgment to be paid by any party,[5] including the
infant,[6] and may apportion the fees for a guardian ad litem between the parties.[7] When ordering payment of
guardian ad litem fees, the court may consider the circumstances which necessitated the appointment of a guard-
ian,[8] and the fee allowed can be considered a cost incurred by the party whose conduct made the appointment
necessary.[9] However, some courts hold that a court does not have the authority to order the payment of fees
requested by a guardian ad litem by the prevailing party[10] or by a nonparty county without notice and an op-
portunity for the county to be heard.[11] When, however, a statute requires the fees to be paid by the county of
venue, the county will be required to pay the fees of a guardian ad litem appointed to represent the interests of a
minor.[12]
Cases:
Mother was required to pay all guardian ad litem fees incurred in proceedings on mother's action to over-
come father's paternity and in proceedings on father's petition to terminate biological father's parental rights, un-
der statute requiring guardian ad litem fees to be paid by the person bringing the action to overcome paternity;

same guardian ad litem had been appointed for child in both actions, same work had been done and the same
fees incurred in both actions, since actions were intertwined and all operative facts were the same. I.C.A. §
600B.41A(8). In re Fiscus, 819 N.W.2d 420 (Iowa Ct. App. 2012).
[END OF SUPPLEMENT]
[FN1] Commerce Ins. Co. v. Gemelli, 921 F. Supp. 25 (D. Mass. 1996); Ragan v. Looney, 377 S.W.2d
273 (Mo. 1964).
[FN2] In re Paternity of N.L.P., 926 N.E.2d 20 (Ind. 2010).
[FN3] Rubenstein v. Rubenstein, 107 Conn. App. 488, 945 A.2d 1043 (2008), certification denied, 289
Conn. 948, 960 A.2d 1037 (2008); In re Estate of K.E.S., 347 Ill. App. 3d 452, 283 Ill. Dec. 76, 807
N.E.2d 681 (4th Dist. 2004); In re Marriage of Sperry, 683 N.W.2d 127 (Iowa Ct. App. 2004); Iverson
v. Iverson, 535 N.W.2d 739 (N.D. 1995); Doerr v. Doerr, 189 Wis. 2d 112, 525 N.W.2d 745 (Ct. App.
1994).
[FN4] Smith v. Smith, 222 Neb. 752, 386 N.W.2d 873 (1986).
[FN5] Meyer v. Meyer, 842 S.W.2d 184 (Mo. Ct. App. E.D. 1992).
[FN6] Thatcher v. Fields, 118 Ohio App. 3d 63, 691 N.E.2d 1103 (10th Dist. Franklin County 1997).
[FN7] In re Adoption of Kindgren, 184 Ill. App. 3d 661, 132 Ill. Dec. 745, 540 N.E.2d 485 (2d Dist.
1989); Leimer v. Leimer, 715 S.W.2d 310 (Mo. Ct. App. E.D. 1986); In re Marriage of Kuzara, 224
Mont. 124, 728 P.2d 786 (1986); Davis v. Davis, 55 Ohio App. 3d 196, 563 N.E.2d 320 (8th Dist.
Cuyahoga County 1988); Garris v. McDuffie, 288 S.C. 637, 344 S.E.2d 186 (Ct. App. 1986); Anderson
v. Memphis Housing Authority, 534 S.W.2d 125 (Tenn. Ct. App. 1975); Peerenboom v. Peerenboom,
147 Wis. 2d 547, 433 N.W.2d 282 (Ct. App. 1988).
[FN8] Allstate Ins. Co., Inc. v. Jones, 763 F. Supp. 1101 (M.D. Ala. 1991); Lindell v. Coen, 896
S.W.2d 525 (Mo. Ct. App. W.D. 1995).
[FN9] Allstate Ins. Co., Inc. v. Jones, 763 F. Supp. 1101 (M.D. Ala. 1991); In re Marriage of Westcott,
163 Ill. App. 3d 168, 114 Ill. Dec. 411, 516 N.E.2d 566 (1st Dist. 1987); In re Tutorship of Property of
Huddleston, 655 So. 2d 416 (La. Ct. App. 5th Cir. 1995); Will of Ault, 164 Misc. 2d 272, 624 N.Y.S.2d
351 (Sur. Ct. 1995).
[FN10] Fear v. Smith, 184 Ill. App. 3d 51, 132 Ill. Dec. 491, 539 N.E.2d 1297 (5th Dist. 1989) (when a
tort plaintiff prevailed against a minor defendant, no part of the guardian ad litem's fees could be taxed
against the plaintiff).
[FN11] Matter of Guardianship of Stodden, 569 N.W.2d 621 (Iowa Ct. App. 1997); Sweeten v. Watie,
842 S.W.2d 190 (Mo. Ct. App. E.D. 1992).
[FN12] Hull By Hull v. U.S., 53 F.3d 1125 (10th Cir. 1995); Dunn v. Dunn, 298 S.C. 365, 380 S.E.2d

836 (1989); Katie T. v. Justin R., 204 Wis. 2d 401, 555 N.W.2d 651 (Ct. App. 1996).
rights reserved.
END OF DOCUMENT


Infants
VI. Actions
§ 181. Costs
The compensation or fee of a guardian ad litem may properly be taxed as part of the costs of a suit[1] to the
extent that the guardian acted as an officer of the court, looking after the interests of the infant.[2] Likewise, the
expenses of a guardian ad litem are properly taxable as costs.[3] However, in some proceedings, such as adop-
tions[4] or for custody,[5] or when the action is dismissed,[6] guardian ad litem fees will not be taxed as costs.[7
]
Some courts hold that the next friend of an infant becomes liable to the defendant for costs, and may be
compelled to give security therefor,[8] while others hold the award is only against the minor and not against his
or her parent so that attorney's fees and taxable costs can be recovered only against the minor.[9]
Practice Tip:
Payment of any costs or attorney's fees from the proceeds of an infant's action requires compliance with statute
and court approval.[10]
For personal misconduct, costs of the suit may be charged against the guardian ad litem.[11]
[FN1] Allstate Ins. Co., Inc. v. Jones, 763 F. Supp. 1101 (M.D. Ala. 1991); Meyer v. Meyer, 842
S.W.2d 184 (Mo. Ct. App. E.D. 1992); Cullen Center Bank & Trust v. Wonzer, 874 S.W.2d 757 (Tex.
App. Houston 1st Dist. 1994); Verrocchio v. Verrocchio, 16 Va. App. 314, 429 S.E.2d 482 (1993).
Where the same person acts in a capacity as both a minor's guardian ad litem and as his attorney ad
litem, only the person's expenses in the former role are taxable as costs. Gaddis v. U.S., 381 F.3d 444,
64 Fed. R. Evid. Serv. 1238, 59 Fed. R. Serv. 3d 457 (5th Cir. 2004).

As to costs, generally, see Am. Jur. 2d, Costs §§ 1 to 6.
[FN2] Hull by Hull v. U.S., 971 F.2d 1499, 23 Fed. R. Serv. 3d 601 (10th Cir. 1992).
[FN3] duPont v. Southern Nat. Bank of Houston, Tex., 771 F.2d 874, 3 Fed. R. Serv. 3d 273 (5th Cir.
1985).
[FN4] In In Interest of C.J.E., 878 S.W.2d 845 (Mo. Ct. App. W.D. 1994).
[FN5] Leimer v. Leimer, 715 S.W.2d 310 (Mo. Ct. App. E.D. 1986).
[FN6] Sweet v. Bordis, 47 A.D.2d 793, 365 N.Y.S.2d 917 (3d Dep't 1975).
[FN7] In In Interest of C.J.E., 878 S.W.2d 845 (Mo. Ct. App. W.D. 1994).
An order taxing as costs the attorney's fees for a guardian ad litem who acted as an attorney for a code-
fendant who was a minor and uninsured is improper, inasmuch as it would impose upon the other de-
fendant liability for the fees of an attorney who at no time represented him. Drury v. Sikorski, 419
S.W.2d 503 (Mo. Ct. App. 1967).
[FN8] Kingsbury v. Buckner, 134 U.S. 650, 10 S. Ct. 638, 33 L. Ed. 1047 (1890); Bertinelli v. Galoni,
331 Pa. 73, 200 A. 58, 118 A.L.R. 398 (1938).
[FN9] Watson By and Through Watson v. State Farm Mut. Auto. Ins. Co., 639 So. 2d 687 (Fla. Dist.
Ct. App. 2d Dist. 1994).
[FN10] Matter of Estate of Katchatag, 907 P.2d 458 (Alaska 1995).
rights reserved.
END OF DOCUMENT


Infants
VI. Actions
(2) Liabilities of Representatives
§ 182. Generally
If a guardian ad litem neglects his or her duty, he or she is answerable to the infant in damages for negli-
gence;[1] however, the duties a guardian ad litem owes to the infant do not extend to other parties.[2]
[FN1] Tara M. by Kantner v. City of Philadelphia, 145 F.3d 625 (3d Cir. 1998); Planned Parenthood
Ass'n of Atlanta Area, Inc. v. Miller, 934 F.2d 1462 (11th Cir. 1991); Collins on Behalf of Collins v.
Tabet, 111 N.M. 391, 806 P.2d 40, 14 A.L.R.5th 1094 (1991); Franklin County v. Jones, 245 N.C. 272,
95 S.E.2d 863 (1957); Byrd v. Woodruff, 891 S.W.2d 689 (Tex. App. Dallas 1994), writ denied, (May
4, 1995) and writ withdrawn, (Sept. 28, 1995) and writ dismissed by agreement, (Sept. 28, 1995).
[FN2] Rashidi v. Albright, 818 F. Supp. 1354, 82 Ed. Law Rep. 528 (D. Nev. 1993), judgment aff'd, 39
F.3d 1188 (9th Cir. 1994); Karen L. v. State Dept. of Health and Social Services, Div. of Family and
Youth Services, 953 P.2d 871 (Alaska 1998); Gerber v. Peters, 584 A.2d 605 (Me. 1990); Penn v. Mc-
Monagle, 60 Ohio App. 3d 149, 573 N.E.2d 1234 (6th Dist. Huron County 1990).
rights reserved.
END OF DOCUMENT


Infants
VI. Actions
(2) Liabilities of Representatives
§ 183. Immunity from liability
A guardian ad litem may be cloaked with immunity from liability[1] or may have quasi-judicial immunity
for his or her acts within the scope of his or her statutory responsibilities.[2] While guardian ad litem case work-
ers have prosecutorial immunity from liability to parents for actions taken during or to initiate proceedings,[3]
they do not have prosecutorial immunity with respect to claims arising from minor children's abuse while in
foster care.[4]
Guardians ad litem, by definition, are not always entitled to absolute immunity for their actions; the im-
munity doctrine applies only if a guardian ad litem is functioning within a quasi-judicial role while engaging in
the disputed acts.[5] Absolute judicial immunity attaches to a guardian ad litem when the appointment contem-
plates investigation on behalf of the court into the fairness and reasonableness of a settlement in its effect on the
minor.[6] If a guardian ad litem departs from the scope of his or her appointment as a fiduciary of the court and
instead assumes the role of a private advocate for an infant's position, then the guardian is not immune from li-
ability for his or her actions, including liability for malpractice.[7] Similarly, the absolute quasi-judicial im-
munity afforded guardians ad litem for acts performed within the scope of their appointment does not extend to
actions, such as abuse, which lie beyond the scope of such appointment.[8] For such personal misconduct, the
costs of the suit may also be charged against the guardian ad litem.[9]
Observation:
A court appointed guardian ad litem generally is not liable to third parties respecting his or her representation of
the infant.[10]
Cases:

Absolute judicial immunity attaches when a guardian ad litem (GAL) performs certain delegated duties be-
cause of the intimate relationship between the GAL and the court in the judicial process. Surprenant v. Mul-
crone, 44 A.3d 465 (N.H. 2012).
[END OF SUPPLEMENT]
[FN1] Short by Oosterhous v. Short, 730 F. Supp. 1037 (D. Colo. 1990); Dolin on Behalf of N.D. v.
West, 22 F. Supp. 2d 1343 (M.D. Fla. 1998), aff'd, 207 F.3d 661 (11th Cir. 2000); Bullock v. Huster,
218 Mich. App. 400, 554 N.W.2d 47 (1996); Billups v. Scott, 253 Neb. 287, 571 N.W.2d 603 (1997);
Penn v. McMonagle, 60 Ohio App. 3d 149, 573 N.E.2d 1234 (6th Dist. Huron County 1990); Byrd v.
Woodruff, 891 S.W.2d 689 (Tex. App. Dallas 1994), writ denied, (May 4, 1995) and writ withdrawn,
(Sept. 28, 1995) and writ dismissed by agreement, (Sept. 28, 1995).
[FN2] McKay v. Owens, 130 Idaho 148, 937 P.2d 1222 (1997); Collins on Behalf of Collins v. Tabet,
111 N.M. 391, 806 P.2d 40, 14 A.L.R.5th 1094 (1991); Fleming v. Asbill, 326 S.C. 49, 483 S.E.2d 751
(1997); Berndt by Peterson v. Molepske, 211 Wis. 2d 572, 565 N.W.2d 549 (Ct. App. 1997), aff'd, 219
Wis. 2d 418, 580 N.W.2d 289 (1998).
[FN3] Safouane v. Fleck, 226 Fed. Appx. 753 (9th Cir. 2007), as amended on denial of reh'g and reh'g
en banc, (July 26, 2007).
[FN4] Safouane v. Fleck, 226 Fed. Appx. 753 (9th Cir. 2007), as amended on denial of reh'g and reh'g
en banc, (July 26, 2007).
[FN5] Kohl v. Murphy, 767 F. Supp. 895 (N.D. Ill. 1991); Fleming v. Asbill, 326 S.C. 49, 483 S.E.2d
751 (1997).
[FN6] Hunnicutt v. Sewell, 147 N.M. 272, 2009-NMCA-121, 219 P.3d 529 (Ct. App. 2009).
[FN7] Collins on Behalf of Collins v. Tabet, 111 N.M. 391, 806 P.2d 40, 14 A.L.R.5th 1094 (1991);
Barr v. Day, 124 Wash. 2d 318, 879 P.2d 912 (1994).
[FN8] Fleming v. Asbill, 326 S.C. 49, 483 S.E.2d 751 (1997).
[FN9] § 181.
[FN10] Dolin on Behalf of N.D. v. West, 22 F. Supp. 2d 1343 (M.D. Fla. 1998), aff'd, 207 F.3d 661
(11th Cir. 2000); Winchester v. Little, 996 S.W.2d 818 (Tenn. Ct. App. 1998).
rights reserved.
END OF DOCUMENT


Infants
VI. Actions
d. Rights and Duties of Attorneys Representing Infants
§ 184. Generally
An infant cannot appear by an attorney of his or her choice[1] as the infant's employment of an attorney
would be null.[2] An attorney employed by the next friend of a minor to conduct the litigation for the minor,
however, may exercise all the powers and duties of an attorney of record in any litigation.[3]
Nonlawyer parents cannot represent their children in actions brought in their children's names.[4] Although
litigants in federal court have a statutory right to act as their own counsel, unlicensed laypersons are not permit-
ted to represent anyone other than themselves; that prohibition extends to nonlawyer parents seeking to represent
their children.[5] Purported representation by a parent who is not qualified to represent his or her children as
their attorney necessitates dismissal of all claims raised by the parent on the children's behalf in an action.[6]
Caution:
The authority and powers of an attorney representing an infant, however, are ordinarily limited to those pos-
sessed by the guardian ad litem or next friend of the infant.[7]
Such an attorney cannot waive or admit away any substantial right of the infant[8] nor can he or she consent
to anything which may be prejudicial to the infant.[9]
An attorney representing an infant plaintiff cannot compromise or settle the cause of action[10] in the ab-
sence of judicial approval.[11]
Counsel appointed for an infant may represent him or her in a special action, which is, in legal contempla-
tion, an ancillary proceeding to the main action.[12]
Cases:

Pro se, non-lawyer parent may not represent child in civil lawsuit filed under child's name. Abella v. Simon,
831 F. Supp. 2d 1316 (S.D. Fla. 2011).
[END OF SUPPLEMENT]
[FN1] Miller v. Miller, 677 A.2d 64 (Me. 1996).
[FN2] §§ 54, 71.
[FN3] Garner v. I. E. Schilling Co., 128 Fla. 353, 174 So. 837, 111 A.L.R. 682 (1937).
As to the necessity of counsel for an infant, see § 150.
[FN4] Lazaridis v. Wehmer, 591 F.3d 666 (3d Cir. 2010); Elustra v. Mineo, 595 F.3d 699 (7th Cir.
2010); Chambers v. Tibbs, 980 So. 2d 1010, 232 Ed. Law Rep. 541 (Ala. Civ. App. 2007); Goodwin v.
Hobza, 17 Neb. App. 353, 762 N.W.2d 623 (2009).
[FN5] KLA v. Windham Southeast Supervisory Union, 348 Fed. Appx. 604, 253 Ed. Law Rep. 135 (2d
Cir. 2009), subsequent determination, 2010 WL 1193082 (2d Cir. 2010).
[FN6] Mohammad v. Bin Tarraf, 114 Fed. Appx. 417 (2d Cir. 2004).
[FN7] Paskewie v. East St. Louis & S. Ry. Co., 281 Ill. 385, 117 N.E. 1035 (1917); In re Wretlind, 225
Minn. 554, 32 N.W.2d 161 (1948).
[FN8] Garner v. I. E. Schilling Co., 128 Fla. 353, 174 So. 837, 111 A.L.R. 682 (1937); In re Wretlind,
225 Minn. 554, 32 N.W.2d 161 (1948).
As to the power of an infant's representatives to waive or admit on behalf of the infant, see § 174.
[FN9] In re Wretlind, 225 Minn. 554, 32 N.W.2d 161 (1948).
As to the effect of a decree entered against an infant with the consent of his or her counsel, see § 211.
[FN10] Garner v. I. E. Schilling Co., 128 Fla. 353, 174 So. 837, 111 A.L.R. 682 (1937); Honadle v.
Stafford, 265 N.Y. 354, 193 N.E. 172 (1934).
As to the effect of a compromise or settlement made by a third person on behalf of an infant, see § 37.
[FN11] Glover v. Bradley, 233 F. 721 (C.C.A. 4th Cir. 1916).
As to the power of a court to sanction a compromise or settlement, see § 140.
[FN12] Klahr v. Court of Appeals of State, Div. One, 134 Ariz. 67, 654 P.2d 1 (1982).
As to the authority of an infant's representatives in related proceedings, see § 172.

rights reserved.
END OF DOCUMENT


Infants
VI. Actions
§ 185. Collecting, or acknowledging satisfaction of, judgment
According to a number of cases, in the absence of statute expressly empowering the next friend or guardian
ad litem of an infant, or the attorney employed by him or her, to receive a payment for or acknowledge the satis-
faction of a judgment in favor of an infant, an infant's attorney has no authority to receive the payment or ac-
knowledge the satisfaction of the judgment.[1] However, that no guardian of the infant's estate had been appoin-
ted at the time of the payment on a judgment owed to the infant to the attorney employed by the infant's next
friend or guardian ad litem has in some decisions been the basis for sustaining the authority of the attorney to re-
ceive the payment and to acknowledge the satisfaction of the judgment.[2]
[FN1] Southern Ry. Co. v. McKinney, 276 F. 772 (C.C.A. 5th Cir. 1921); Collins v. Gillespy, 148 Ala.
558, 41 So. 930 (1906); Paskewie v. East St. Louis & S. Ry. Co., 281 Ill. 385, 117 N.E. 1035 (1917).
As to the power of a next friend or guardian ad litem to receive payment, or acknowledge satisfaction,
of judgment, see § 177.
[FN2] Garner v. I. E. Schilling Co., 128 Fla. 353, 174 So. 837, 111 A.L.R. 682 (1937).
rights reserved.
END OF DOCUMENT


Infants
VI. Actions
§ 186. Role of counsel
The role of the counsel for an infant differs from the role of a guardian ad litem or next friend in that, typic-
ally, the attorney is an advocate for the infant while a guardian ad litem represents the infant's best interests.[1]
The attorney provides independent representation of the child's interests.[2]
The relationship between the attorney and child, however, is not always the same as that between an attor-
ney and an adult,[3] and the attorney may, in some cases, participate in the proceedings not just as the attorney
for the minor but as the personal representative of the minor.[4]
Practice Tip:
The standard for ineffective assistance of counsel in a civil case requires that an infant show that the counsel's
performance was deficient, and the deficient performance prejudiced the infant's defense; it is not enough to
show that the counsel's errors had some conceivable effect on the outcome of a proceeding, but the infant must
show that there is a reasonable probability that but for the unprofessional errors of the attorney, the result of the
proceeding would have been different.[5]
When deciding whether to replace an attorney for an infant, the court must consider only the infant's best in-
terest; the interests of any next friend and the attorney are irrelevant.[6]
Cases:
Although Attorney for the Children (AFC) must be afforded same opportunity as any other party to fully
participate in custody proceeding and court may not relegate AFC to meaningless role, children represented by
AFC are not permitted to "veto" proposed settlement reached by their parents and thereby force trial. McDermott
v. Bale, 94 A.D.3d 1542, 943 N.Y.S.2d 708 (4th Dep't 2012).

[END OF SUPPLEMENT]
[FN1] Gil v. Gil, 94 Conn. App. 306, 892 A.2d 318 (2006).
A court may appoint an attorney to serve as a child's representative whose duty shall be to advocate
what the representative finds to be in the best interests of the child after reviewing the facts and circum-
stances of the case. In re Marriage of Kostusik, 361 Ill. App. 3d 103, 296 Ill. Dec. 732, 836 N.E.2d 147
(1st Dist. 2005).
In a child custody proceeding, the role of the attorney for the children is to be an advocate for and rep-
resent the best interests of the children, not the parents. Luizzi v. Collins, 60 A.D.3d 1062, 877
N.Y.S.2d 346 (2d Dep't 2009).
[FN2] Carrubba v. Moskowitz, 274 Conn. 533, 877 A.2d 773 (2005).
[FN3] In re Marriage of Hartley, 886 P.2d 665 (Colo. 1994) (the child's attorney in custody proceedings
acts both as a guardian and as an advocate).
[FN4] In re Marriage of Hartley, 886 P.2d 665 (Colo. 1994); Byrd v. Woodruff, 891 S.W.2d 689 (Tex.
App. Dallas 1994), writ denied, (May 4, 1995) and writ withdrawn, (Sept. 28, 1995) and writ dismissed
by agreement, (Sept. 28, 1995).
[FN5] Cogan v. KAL Leasing, Inc., 190 Ill. App. 3d 145, 137 Ill. Dec. 396, 546 N.E.2d 20, 57 Ed. Law
Rep. 193 (4th Dist. 1989).
[FN6] Urbish v. 127th Judicial Dist. Court, 708 S.W.2d 429 (Tex. 1986).
rights reserved.
END OF DOCUMENT


Infants
VI. Actions
§ 187. Right to compensation
When an infant makes a contract for the services of an attorney, although the contract is not absolutely bind-
ing upon him or her, the infant nevertheless may be held liable for a reasonable fee when the services rendered
were for his or her benefit and necessary for the protection of his or her rights.[1] The payment of attorney's fees
involving an infant's claim must be approved by the court.[2]
When a next friend or guardian ad litem of an infant makes a contract for the payment of compensation for
an attorney's services, the contract is not usually binding upon the infant or his or her estate except in the case of
contingent fee contracts.[3] However, the attorneys employed by a next friend or guardian ad litem are entitled
to a reasonable fee for their services,[4] which must be fixed by the court[5] after an investigation of the value
of the services provided.[6]
By statute in some jurisdictions, when a court appoints private counsel to represent the interests of children
in a custody or visitation proceeding, the court has a mandatory duty to award attorney's fees to the appointed
counsel and vests in the attorney a right to receive a reasonable sum for his or her compensation and expenses.[7
]
A child has "standing" in an appeal by a parent questioning whether an attorney's fees awarded to the chil-
dren's appointed counsel was excessive and has a right to representation in the appeal itself.[8]
Cases:
In determining a reasonable attorney fee in an action involving a minor, the trial court should develop an
evidentiary record, make findings concerning each of the relevant factors, and then determine a reasonable fee
that depends upon the particular circumstances of the individual case. Sup.Ct.Rules, Rule 8, Rules of

Prof.Conduct, Rule 1.5(a)(1, 3). Wright ex rel. Wright v. Wright, 337 S.W.3d 166 (Tenn. 2011).
[END OF SUPPLEMENT]
[FN1] § 71.
[FN2] Niles v. City of San Rafael, 42 Cal. App. 3d 230, 116 Cal. Rptr. 733 (1st Dist. 1974).
[FN3] § 173.
[FN4] Goldman v. Eisinger, 289 Md. 611, 425 A.2d 1356 (1981); Shoughrue v. St. Mary's Medical
Center, Inc., 152 S.W.3d 577 (Tenn. Ct. App. 2004).
[FN5] Goldman v. Eisinger, 289 Md. 611, 425 A.2d 1356 (1981); Shoughrue v. St. Mary's Medical
[FN6] Abel v. Tisdale, 1980 OK 161, 619 P.2d 608 (Okla. 1980); Shoughrue v. St. Mary's Medical
[FN7] In re Marriage of Lisi, 39 Cal. App. 4th 1573, 46 Cal. Rptr. 2d 623 (2d Dist. 1995).
[FN8] Lapides v. Lapides, 50 Md. App. 248, 437 A.2d 251 (1981).
rights reserved.
END OF DOCUMENT


Infants
VI. Actions
§ 188. Right to compensation—Sources of payment
If a fund is recovered for the infant by the suit, or if the infant's property is under the control of the court,
the court will order proper counsel fees to be charged upon the fund or property.[1]
Observation:
Under a statute granting a lien to secure counsel fees, the court may declare a lien to secure such fees upon the
part of the estate which was obtained for the infant.[2]
Unlike guardian ad litem fees, attorney ad litem fees generally cannot be assessed as costs since an attorney
ad litem performs the ordinary services of an attorney; he or she does not act as an officer of the court, and his
or her fees are no more assessable as costs than are ordinary counsel fees.[3] There is, however, authority to the
contrary[4] indicating that it is within the discretion of the court whether to assess them as costs.[5]
[FN1] Folsom v. McDonald, 237 F.2d 380 (4th Cir. 1956); Owens v. Gunther, 75 Ark. 37, 86 S.W. 851
(1905); Stafford v. Superior Court in and for City and County of San Francisco, 1 Cal. 2d 321, 34 P.2d
998 (1934).
[FN2] Roberts v. Vaughn, 142 Tenn. 361, 219 S.W. 1034, 9 A.L.R. 1528 (1920).
[FN3] duPont v. Southern Nat. Bank of Houston, Tex., 771 F.2d 874, 3 Fed. R. Serv. 3d 273 (5th Cir.
1985).
[FN4] Key v. Allstate Ins. Co., 255 So. 2d 438 (La. Ct. App. 1st Cir. 1971); Suiter v. Woodard, 635
S.W.2d 639 (Tex. App. Waco 1982), writ refused n.r.e., (Oct. 6, 1982).

[FN5] Suiter v. Woodard, 635 S.W.2d 639 (Tex. App. Waco 1982), writ refused n.r.e., (Oct. 6, 1982).
rights reserved.
END OF DOCUMENT

AMJUR INFANTS VI C REF Page 1
42 Am. Jur. 2d Infants VI C Refs.

Infants
VI. Actions
C. Service of Process on Infant Defendant
Research References
Primary Authority
Fed. R. Civ. P. 4
A.L.R. Library
rights reserved.
AMJUR INFANTS VI C REF
END OF DOCUMENT


Infants
VI. Actions
1. In General
§ 189. Generally
An infant, like any other defendant or respondent, must be properly served with process before jurisdiction
over the infant is obtained[1] and before judgment can be rendered against the infant.[2]
The Federal Rules of Civil Procedure provide that service of process upon a minor in a judicial district of
the United States must be made by serving the summons and complaint in the manner prescribed by the law of
the state in which the service is made for the service of summons or other like process upon a minor in an action
brought in the courts of general jurisdiction of that state.[3] It further provides that service of process upon a
minor not within a judicial district of the United States is to be made in accordance with the general rules for
service upon persons not within a district.[4]
[FN1] In re Marriage of Vucic, 216 Ill. App. 3d 692, 159 Ill. Dec. 737, 576 N.E.2d 406 (2d Dist. 1991);
Milyanovich v. Feeley, 10 So. 3d 529 (Miss. Ct. App. 2009); Application of Mortimer, 84 Misc. 2d
1086, 380 N.Y.S.2d 216 (Sur. Ct. 1976).
[FN2] New York Life Ins. Co. v. Bangs, 103 U.S. 435, 26 L. Ed. 580, 1880 WL 18856 (1880); Matter
of Estate of Heller, 401 N.W.2d 602 (Iowa Ct. App. 1986); Martin v. Battey, 87 Kan. 582, 125 P. 88
(1912); De Charette v. St. Matthews Bank & Trust Co., 214 Ky. 400, 283 S.W. 410, 50 A.L.R. 34
(1926); Reynolds v. Remick, 327 Mass. 465, 99 N.E.2d 279 (1951); Karrib v. Bailey, 212 Mich. 502,
180 N.W. 386 (1920); Application of Mortimer, 84 Misc. 2d 1086, 380 N.Y.S.2d 216 (Sur. Ct. 1976);
French v. Pocahontas Coal & Coke Co., 87 W. Va. 226, 104 S.E. 554 (1920).
As to service of process, generally, see Am. Jur. 2d, Process §§ 97 to 135.
[FN3] Fed. R. Civ. P. 4(g).
[FN4] Fed. R. Civ. P. 4(g).

rights reserved.
END OF DOCUMENT


Infants
VI. Actions
1. In General
§ 190. Mode of service
Jurisdiction of an infant may be obtained only by proper service.[1] In many jurisdictions, it is provided by
statute or rule of court that process against an infant be served on his or her parent or guardian or on some other
designated person.[2]
Practice Tip:
In some cases, service upon the parent of an infant defendant may be deemed to be service upon the infant, even
in the absence of any statutory provision to this effect[3] unless the parent is also named as a defendant and the
return of service indicates that it is the infant upon whom service was intended to be made.[4]
Service of process only on a representative of or designee for a person under disability is jurisdictionally
valid for persons not yet in being or for judicially declared incompetents and conservatees.[5] However, a guard-
ian is not an agent authorized by the existence of the guardianship to accept service of process for a minor.[6]
If a statute relating to the service of process requires the reading of process to the minor, the deputy should
read the contents of process out loud to the minor; it is not complied with when the deputy merely hands the pa-
pers to the minor and states that someone is suing him or her.[7]
If an infant does not claim to be deprived of asserting any defense by or claim any prejudice from the type
of service effected, the service generally will be found proper.[8]
[FN1] § 189.
[FN2] §§ 194 to 197.
[FN3] Purcell v. Gann, 113 Ark. 332, 168 S.W. 1102 (1914) (delivering a copy thereof to his father, and

also by leaving another copy with the father for the infant, who was not at home at the time, is suffi-
cient service on the infant).
[FN5] Matter of Will of Bergen, 149 Misc. 2d 702, 567 N.Y.S.2d 355 (Sur. Ct. 1991).
[FN6] Bowen v. Graham, 140 Ariz. 593, 684 P.2d 165 (Ct. App. Div. 1 1984).
[FN7] Jones v. Lucks, 349 So. 2d 691 (Fla. Dist. Ct. App. 4th Dist. 1977).
[FN8] Tax Collector of City of New Haven v. Miley, 34 Conn. App. 634, 642 A.2d 747 (1994).
rights reserved.
END OF DOCUMENT


Infants
VI. Actions
1. In General
§ 191. Waiver of service by appearance or other acts
An infant can neither acknowledge nor waive the regular service of process upon him or her.[1] Thus, when
an infant defendant is not served, the infant cannot appear or answer and thereby confer jurisdiction of the court
over him or her[2] nor can the infant waive multiple service requirements imposed by statute.[3]
Jurisdiction is not conferred in such a case by the appearance of a parent[4] or an attorney at law appointed
by the infant.[5]
A general guardian of an infant may have authority to enter the appearance of the infant in an action
pending against the infant, and such an appearance confers jurisdiction over the infant to the same extent as it
would if the process were served upon the infant.[6]
[FN1] Roberts v. Hall, 373 So. 2d 1103 (Ala. Civ. App. 1979), writ denied, 373 So. 2d 1104 (Ala.
1979); In re Marriage of Vucic, 216 Ill. App. 3d 692, 159 Ill. Dec. 737, 576 N.E.2d 406 (2d Dist. 1991);
Pierson v. Brenneman, 171 Kan. 11, 229 P.2d 1019 (1951); Herr v. Humphrey, 277 Ky. 421, 126
S.W.2d 809, 121 A.L.R. 954 (1939); Milyanovich v. Feeley, 10 So. 3d 529 (Miss. Ct. App. 2009)
(Miss. App.); In re Stroman's Estate, 178 Or. 100, 165 P.2d 576 (1946); Matter of W. L. C., 562 S.W.2d
454 (Tex. 1978).
[FN2] Roberts v. Hall, 373 So. 2d 1103 (Ala. Civ. App. 1979), writ denied, 373 So. 2d 1104 (Ala.
1979); Pierson v. Brenneman, 171 Kan. 11, 229 P.2d 1019 (1951); In re Stroman's Estate, 178 Or. 100,
165 P.2d 576 (1946); Vandewater v. American General Fire and Cas. Co., 890 S.W.2d 811 (Tex. App.
Austin 1994), judgment rev'd on other grounds, 907 S.W.2d 491 (Tex. 1995) and writ granted, (June 15,
1995); Bielawski v. Burke, 121 Vt. 62, 147 A.2d 674, 69 A.L.R.2d 1373 (1959).
[FN3] Collins v. Collins, 148 Ga. App. 103, 250 S.E.2d 870 (1978).

As to multiple service statutes, see § 194.
[FN4] Herr v. Humphrey, 277 Ky. 421, 126 S.W.2d 809, 121 A.L.R. 954 (1939).
As to waiver by the infant's representatives, see § 174.
[FN5] In re Wretlind, 225 Minn. 554, 32 N.W.2d 161 (1948); Bielawski v. Burke, 121 Vt. 62, 147 A.2d
674, 69 A.L.R.2d 1373 (1959).
As to powers of attorneys representing infants, see §§ 184 to 188.
As to a waiver by the infant's representatives, see § 174.
rights reserved.
END OF DOCUMENT


Infants
VI. Actions
1. In General
§ 192. Waiver of service by appearance or other acts—Appearance or other acts of waiver by guardian ad
litem
As a general rule, a guardian ad litem of an infant defendant cannot waive the requirement of service upon
the infant.[1] The appointment of a guardian ad litem for an infant defendant or an appearance or answer by such
a guardian does not bring the infant before the court when the infant is not served[2] or when the attempted ser-
vice upon the infant is defective and inadequate.[3]
There is authority for the view that in a proceeding involving land located within the state or district, a non-
resident infant who is interested in the proceeding may be brought into court, even without personal service
upon the infant, by appointing a guardian ad litem to represent the infant.[4]
[FN1] Bank of America Nat. Trust & Sav. Ass'n v. Carr, 138 Cal. App. 2d 727, 292 P.2d 587 (1st Dist.
1956); Application of Mortimer, 84 Misc. 2d 1086, 380 N.Y.S.2d 216 (Sur. Ct. 1976); Vandewater v.
American General Fire and Cas. Co., 890 S.W.2d 811 (Tex. App. Austin 1994), judgment rev'd on other
grounds, 907 S.W.2d 491 (Tex. 1995) and writ granted, (June 15, 1995).
As to the need for service to appoint next friend or guardian ad litem, see § 158.
As to the power of a guardian ad litem to waive the rights of the infant, see § 174.
[FN2] Ronan v. First Nat. Bank of Ariz., 90 Ariz. 341, 367 P.2d 950 (1962); Adams v. Security Trust
Co., 302 Ky. 287, 194 S.W.2d 521 (1946); Reynolds v. Remick, 327 Mass. 465, 99 N.E.2d 279 (1951);
Bonds v. Joplin's Heirs, 64 N.M. 342, 328 P.2d 597 (1958); Application of Mortimer, 84 Misc. 2d 1086,
380 N.Y.S.2d 216 (Sur. Ct. 1976); In re Stroman's Estate, 178 Or. 100, 165 P.2d 576 (1946).
[FN3] Foster v. Thomas, 112 So. 2d 33 (Fla. Dist. Ct. App. 1st Dist. 1959).

[FN4] Manson v. Duncanson, 166 U.S. 533, 17 S. Ct. 647, 41 L. Ed. 1105 (1897); New York Life Ins.
Co. v. Bangs, 103 U.S. 435, 26 L. Ed. 580, 1880 WL 18856 (1880); Bank of U.S. v. Ritchie, 33 U.S.
128, 8 L. Ed. 890, 1834 WL 3804 (1834).
rights reserved.
END OF DOCUMENT


Infants
VI. Actions
1. In General
§ 193. Effect of failure to serve
When an infant defendant has not been served with a summons, the infant is not bound by the proceedings[1
] nor can he or she be legally in default for failure to answer the complaint within the statutory time.[2]
Observation:
The general rule that a party who answers or moves to dismiss without raising an objection to personal jurisdic-
tion waives such objection is inapplicable to an infant party who cannot appear voluntarily.[3]
A judgment rendered against an infant defendant without the proper service of process upon him or her is
clearly erroneous even though there was an appearance and answer by a guardian ad litem appointed for his or
her defense.[4] There is, however, also authority for the view that a lack of legal service of process upon an in-
fant defendant does not render a judgment against him or her void, but merely voidable, if there was an appear-
ance and a proper defense by his or her guardian ad litem.[5]
Noncompliance with the statutory requirement that process against an infant defendant be served on a parent
or guardian or on some other designated person may also affect the validity of any judgment obtained there-
after.[6]
[FN1] Williams v. Richardson, 432 So. 2d 58 (Fla. Dist. Ct. App. 3d Dist. 1983); Clark v. Neves, 76
S.C. 484, 57 S.E. 614 (1907).
[FN2] Lanier v. Foster, 133 Ga. App. 149, 210 S.E.2d 326 (1974).
[FN3] Matter of Richardson, 110 Misc. 2d 20, 441 N.Y.S.2d 641 (Fam. Ct. 1981).
[FN4] Townsend v. Tipton, 289 Ky. 766, 160 S.W.2d 161, 142 A.L.R. 306 (1942); Westmeyer v. Gal-

lenkamp, 154 Mo. 28, 55 S.W. 231 (1900).
[FN5] Hughes v. Pritchard, 153 N.C. 135, 69 S.E. 3 (1910).
[FN6] §§ 196, 197.
rights reserved.
END OF DOCUMENT


Infants
VI. Actions
2. Under Statute or Rule Requiring Service on Parent, Guardian, or Other Designated Person
§ 194. Generally
A.L.R. Library
Construction and effect of provision for service of process against minor on a parent, guardian, or other des-
ignated person, 92 A.L.R.2d 1336
Propriety of service of process in an in personam action on resident minor defendant whose only guardian is
a nonresident and cannot be served validly either within or without state, 86 A.L.R.2d 1183
In several jurisdictions, it is provided by statute or rule of court that process against a minor must be served
on his or her parent or guardian or on some other designated person. The purpose of such provision is to bring to
the attention of someone presumed to be interested in the protection of the minor's rights the fact of the institu-
tion and pendency of the action against the minor.[1] Some jurisdictions, however, do not have such a require-
ment.[2]
When service on both the infant and parent is required, service upon the parent alone is not sufficient, and a
notice is required to be served on the minor as well.[3] Stated otherwise, statutory multiple-service requirements
may not be waived.[4]
The statutory requirements as to service are mandatory so that compliance therewith is essential in order to
vest the court with jurisdiction of an action against a minor.[5] However, a rule or test applied in some cases is
that the statutory requirement is complied with or satisfied when the service brings to the notice of the proper
person the fact of the institution or pendency of the action against the minor.[6]
When service is made on a minor's parent, for the service to be effective, that parent should have actual cus-
tody of the child and be the parent with whom the child resides, not just a parent having legal custody.[7] A pro-
vision for the service of process on a minor's parent or guardian is inapplicable when there is no parent or guard-
ian available for such purpose.[8]

Service of process in an in personam action on a resident minor defendant is proper when the minor's only
guardian is a nonresident and cannot be served validly either within or without the jurisdiction.[9]
[FN1] Ackel v. Ackel, 83 Ariz. 207, 318 P.2d 676 (1957); Miller v. Superior Court of Los Angeles
County, 56 Cal. 2d 49, 13 Cal. Rptr. 673, 362 P.2d 497, 92 A.L.R.2d 1332 (1961); Collins v. Collins,
148 Ga. App. 103, 250 S.E.2d 870 (1978).
[FN2] Larosa v. Lupoli, 44 Conn. App. 225, 688 A.2d 356 (1997); Pioneer State Mut. Ins. Co. v. Wood,
126 Mich. App. 165, 336 N.W.2d 887 (1983).
[FN3] Matter of Estate of Heller, 401 N.W.2d 602 (Iowa Ct. App. 1986); Milyanovich v. Feeley, 10 So.
3d 529 (Miss. Ct. App. 2009).
As to waiver, see § 191.
[FN5] Collins v. Collins, 148 Ga. App. 103, 250 S.E.2d 870 (1978); Rosenberg v. Bricken, 302 Ky.
124, 194 S.W.2d 60, 164 A.L.R. 525 (1946); Cramer v. Henderson, 123 Misc. 2d 159, 473 N.Y.S.2d
672 (Sup 1984).
[FN6] Miller v. Superior Court of Los Angeles County, 56 Cal. 2d 49, 13 Cal. Rptr. 673, 362 P.2d 497,
92 A.L.R.2d 1332 (1961); Gourley v. L.Y., 657 N.E.2d 448 (Ind. Ct. App. 1995); American General
Fire and Cas. Co. v. Vandewater, 907 S.W.2d 491 (Tex. 1995).
[FN7] Bowen v. Graham, 140 Ariz. 593, 684 P.2d 165 (Ct. App. Div. 1 1984).
[FN8] Dougan v. McGrew, 187 Kan. 410, 357 P.2d 319, 86 A.L.R.2d 1174 (1960).
[FN9] Dougan v. McGrew, 187 Kan. 410, 357 P.2d 319, 86 A.L.R.2d 1174 (1960).
rights reserved.
END OF DOCUMENT


Infants
VI. Actions
§ 195. When the designated person is also party to action
A.L.R. Library
In some jurisdictions, the statutory requirement that process against a minor be served on his or her parent
or guardian cannot be complied with by service of process upon the parent or guardian when he or she is also
named as a defendant in the action.[1] Other jurisdictions, however, hold such service is sufficient when an ad-
ditional copy of the process is served on the parent in his or her capacity as parent of the infant.[2]
There is a conflict of authority whether the service must state that it is for the infant in order to be sufficient.
By one view, the service on a parent, guardian, or other person, in the capacity of a defendant only, or without
stating that it is for the infant, is insufficient and invalid as to the minor.[3] However, according to other de-
cisions, the delivery to a parent, guardian, or other person of a summons or other process in which both he or she
and the minor are named as defendants, without specifically stating that it is intended for the minor as well as
for himself or herself, constitutes sufficient compliance with the applicable statute,[4] at least when the parent or
guardian previously has been served in his or her own capacity as a defendant.[5]
[FN1] Bank of America Nat. Trust & Sav. Ass'n v. Carr, 138 Cal. App. 2d 727, 292 P.2d 587 (1st Dist.
1956); Pierson v. Brenneman, 171 Kan. 11, 229 P.2d 1019 (1951).
[FN2] Fox v. 18-05 215th Street Owners, Inc., 143 A.D.2d 804, 533 N.Y.S.2d 347 (2d Dep't 1988).
[FN3] Suter Bros. v. Hebert, 138 Kan. 317, 26 P.2d 591 (1933); Gibson v. Currier, 83 Miss. 234, 35 So.
315 (1903); Kolodzinski v. Ferreiras, 168 A.D.2d 431, 562 N.Y.S.2d 554 (2d Dep't 1990).

[FN4] Leach v. Maxwell, 171 Ark. 1188, 286 S.W. 1029 (1926); Pacific Coast Joint Stock Land Bank
of San Francisco v. Clausen, 8 Cal. 2d 364, 65 P.2d 352 (1937); Babb v. National Life Ass'n, 1939 OK
2, 184 Okla. 273, 86 P.2d 771 (1939).
[FN5] Miller v. Superior Court of Los Angeles County, 56 Cal. 2d 49, 13 Cal. Rptr. 673, 362 P.2d 497,
92 A.L.R.2d 1332 (1961).
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END OF DOCUMENT


Infants
VI. Actions
§ 196. Effect of noncompliance
A.L.R. Library
Generally, when an infant is not properly served with a summons, the proceedings are not binding on him or
her.[1] The decisions are not in agreement as to the effect of noncompliance with the statutory requirement that
process against a minor be served on his or her parent or guardian or on some other designated person. In some
cases, a judgment rendered against the minor without compliance with this requirement has been held invalid
and ineffective[2] and absolutely void.[3] In other cases, however, the failure to comply with the statutory re-
quirement has been held to constitute a mere irregularity which will render a judgment against the minor merely
voidable and not absolutely void.[4]
Observation:
A distinction should be made between the failure to comply with a statute which requires service on an infant's
representative and cases which discuss whether such a person may, in effect, waive service by a general appear-
ance on the infant's behalf; it may be possible to violate the statute, and still confer jurisdiction if the court can
accept the guardian's waiver as legitimate, and this may account for the divergence of opinion on the effect of
inadequate service.[5]
[FN1] §§ 189, 193.
[FN2] Pierson v. Brenneman, 171 Kan. 11, 229 P.2d 1019 (1951); Townsend v. Tipton, 289 Ky. 766,
160 S.W.2d 161, 142 A.L.R. 306 (1942).

[FN4] Roseman v. Roseman, 127 N.C. 494, 37 S.E. 518 (1900).
As to the effect of lack of representation, see § 164.
[FN5] Rosenberg v. Bricken, 302 Ky. 124, 194 S.W.2d 60, 164 A.L.R. 525 (1946).
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END OF DOCUMENT


Infants
VI. Actions
§ 197. Effect of noncompliance—Defective or incomplete service on designated person; cure of defect
A.L.R. Library
Defective or incomplete service of process against a minor on a designated person does not require the dis-
missal of an action[1] or the avoidance of a judgment[2] when it is clear the minor was adequately represented
and his or her interests were fully protected. Rather, defects, omissions, and irregularities in the service of sum-
mons against a minor on a parent, guardian, or other designated person may be corrected by an order of the
court,[3] particularly when—
— the defect or irregularity is merely technical or is due to an excusable mistake or to inadvertence.[4]
— the minor has been represented and his or her interests adequately protected in the litigation.[5]
— the infant's interests would be better served by corrective or remedial action rather than by the dismissal
of a pending action[6] or the avoidance of a judgment.[7]
According to some authorities, a defect, irregularity, or omission in the service of process on the minor's
parent, guardian, or other person may also be cured by a subsequent service in compliance with the statutory re-
quirement[8] or when the infant makes a voluntary general appearance upon reaching majority.[9]
Practice Tip:
When service on the parent is not completed until after the expiration of the statute of limitations, dismissal of
the complaint will result, especially when the record is devoid of any facts supporting the plaintiffs' claims that
they were not at fault in failing to properly serve the minor by service upon the parent as well as upon the
minor.[10]

[FN1] Ward v. Ward, 136 Misc. 234, 242 N.Y.S. 171 (Sup 1930).
[FN2] Hughes v. Pritchard, 153 N.C. 135, 69 S.E. 3 (1910).
[FN3] Catalano v. Ramage, 110 N.Y.S.2d 45 (Mun. Ct. 1951).
[FN4] Ward v. Ward, 136 Misc. 234, 242 N.Y.S. 171 (Sup 1930).
[FN5] City Bank Farmers Trust Co. v. Pleasonton, 51 N.Y.S.2d 672 (Sup 1944).
[FN6] Ressler v. Ressler, 47 Pa. D. & C. 656, 1943 WL 2874 (C.P. 1943).
[FN7] Lennox v. Lennox, 197 A.D. 368, 189 N.Y.S. 718 (2d Dep't 1921).
[FN8] Lennox v. Lennox, 197 A.D. 368, 189 N.Y.S. 718 (2d Dep't 1921).
[FN9] Matter of Richardson, 110 Misc. 2d 20, 441 N.Y.S.2d 641 (Fam. Ct. 1981).
[FN10] Negelow v. Mouyal, 178 Ga. App. 53, 342 S.E.2d 14 (1986).
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AMJUR INFANTS VI D REF Page 1
42 Am. Jur. 2d Infants VI D Refs.

Infants
VI. Actions
D. Pleading
Research References
A.L.R. Library
rights reserved.
AMJUR INFANTS VI D REF
END OF DOCUMENT


Infants
VI. Actions
D. Pleading
§ 198. Generally
In all legal proceedings, infants are under a legal disability and cannot bring a cause of action on their own
unless this disability has been removed or unless the child is represented by a "next friend" or guardian ad
litem.[1]
Good pleading requires a minor to specifically state that he or she is such when the infant sues by a next
friend, but the failure to so allege does not vitiate the cause of action when it is obvious to the defendant from
the form of the suit that the plaintiff is under a disability.[2]
A partially inadequate description of an infant plaintiff may be corrected by an amendment to the pleading.[
3]
The petition or complaint in an action in the name of an infant may be verified by a next friend or guardian
ad litem representing him or her.[4] The infant's plea or answer must be subscribed by the guardian ad litem in-
stead of by the attorney.[5]
[FN1] § 137.
Although inartfully pleaded, the parents' complaint adequately pleaded the separate claim on behalf of
their child; the parents had been appointed as guardians ad litem for the child and that order manifested
a clear intention on the parents' part to bring a separate action on behalf of the child. Myer v. Dyer, 643
A.2d 1382 (Del. Super. Ct. 1993).
[FN3] Doyon v. Ladson, 2006 WL 390297 (Conn. Super. Ct. 2006); Russell v. Buck, 116 Vt. 40, 68
A.2d 691 (1949).

As to amendments to pleadings, generally, see Am. Jur. 2d, Pleadings §§ 693 to 707.
[FN4] Phillips v. Portage Transit Co., 137 Wis. 189, 118 N.W. 539 (1908).
[FN5] Thurston v. Tubbs, 250 Ill. 540, 95 N.E. 479 (1911).
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END OF DOCUMENT


Infants
VI. Actions
D. Pleading
§ 199. Answer; defense of infancy
In an action arising from an infant's contract or other transaction, infancy at the time of the contract or trans-
action may be pleaded as a defense,[1] and if so, it must be specially pleaded.[2] When a plea of infancy is
timely raised, the trial court makes a mixed inquiry of law and fact to ascertain whether the defense applies to
the case at hand.[3]
A plea of infancy is a personal privilege which can be waived,[4] and if the defendant is of age when sued,
the failure to plead infancy at the time of the contract is clearly a waiver and implied ratification of the contract.[
5] A plea may be made or omitted by a party to a suit as may appear most beneficial to his or her interests.[6]
An allegation in a plea that apprises the payee that the maker is setting up a defense of infancy and thereby
disaffirming the contract entered into when the defendant was a minor is sufficient, and the absence of a prayer
specifying the defense does not destroy the validity of the plea.[7]
A plea by a minor that he or she was under 21 at the time of the purchase of an automobile and did not have
the requisite written permission from a parent or guardian properly invokes the jurisdiction of an equity court to
enforce the disaffirmance of the contract by an appropriate decree.[8]
[FN1] Woods v. Canady, 126 Ga. App. 389, 190 S.E.2d 920 (1972); Warwick Municipal Employees
Credit Union v. McAllister, 110 R.I. 399, 293 A.2d 516 (1972); Norwood Nat. Bank v. Allston, 152
S.C. 199, 149 S.E. 593, 65 A.L.R. 1334 (1929).
[FN2] Harris v. Ward, 224 So. 2d 517 (La. Ct. App. 2d Cir. 1969).
[FN4] Whitney v. Walker, 25 Utah 2d 202, 479 P.2d 469 (1971).

[FN5] W.M. Barnett Bank v. Chiatovich, 48 Nev. 319, 232 P. 206 (1925).
[FN6] Harris v. Ward, 224 So. 2d 517 (La. Ct. App. 2d Cir. 1969).
[FN7] Warwick Municipal Employees Credit Union v. McAllister, 110 R.I. 399, 293 A.2d 516 (1972).
[FN8] Slaney v. Westwood Auto, Inc., 366 Mass. 688, 322 N.E.2d 768, 89 A.L.R.3d 433 (1975).
As to an infant's avoidance of a contract, generally, see §§ 74 to 77.
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END OF DOCUMENT


Infants
VI. Actions
D. Pleading
§ 200. Action for necessaries furnished to infant
When the necessaries furnished to an infant are services, a recovery for them must be had on a quantum
meruit rather than on the infant's contract for the services.[1] However, in respect to certain types of contracts
and under certain conditions, an infant's express contract for necessaries will be enforced, subject to the limita-
tions that such enforcement will not permit the overreaching of the minor and that the contract price will be re-
duced to the reasonable market value of the necessaries furnished.[2]
In an action for necessaries furnished to an infant, the petition may allege that the articles furnished were
necessaries.[3] The declaration in such an action, however, is not required to contain more than counts for goods
or other things furnished,[4] and it is not necessary to state in the declaration that the defendant had no father or
other person standing in loco parentis who could and should support him or her.[5]
When infancy is pleaded as a defense, the plaintiff may allege in a reply or replication that his or her claim
is for necessaries furnished to the defendant.[6]
[FN1] Marx v. Hefner, 1915 OK 335, 46 Okla. 453, 149 P. 207 (1915).
As to necessaries, generally, see § 60.
[FN2] § 57.
[FN3] Crafts v. Carr, 24 R.I. 397, 53 A. 275 (1902).
[FN4] Goodman v. Alexander, 165 N.Y. 289, 59 N.E. 145 (1901).
[FN5] Przestrzelski v. Board of Ed. of Ft. Plain School Dist., 71 A.D.2d 743, 419 N.Y.S.2d 256 (3d
Dep't 1979).

As to the general rule that articles are not necessaries for an infant if he or she has a parent or guardian
who is able and willing to supply them, see § 63.
[FN6] Goodman v. Alexander, 165 N.Y. 289, 59 N.E. 145 (1901); Norwood Nat. Bank v. Allston, 152
S.C. 199, 149 S.E. 593, 65 A.L.R. 1334 (1929).
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END OF DOCUMENT

AMJUR INFANTS VI E REF Page 1
42 Am. Jur. 2d Infants VI E Refs.

Infants
VI. Actions
E. Evidence
Research References
A.L.R. Library
Forms
Am. Jur. Legal Forms 2d §§ 144:20 to 144:23, 144:26 to 144:30
rights reserved.
AMJUR INFANTS VI E REF
END OF DOCUMENT


Infants
VI. Actions
E. Evidence
§ 201. Generally
Admissions or waivers by a next friend or guardian ad litem are not binding upon an infant and do not dis-
pense with proof even though they are contained in pleadings filed by such representative,[1] and no judgment
can be rendered against an infant on the admissions contained in the answer.[2]
With regard to suits involving contracts, a minor beneficiary's filing of a suit seeking the proceeds of a life
policy is sufficient evidence of the minor's desire to disaffirm any purported discharge of the insurer's obligation
to pay him or her the proceeds.[3] In an action for personal injuries sustained by an infant, the evidence of doc-
tor and hospital bills incurred by the plaintiff during minority is admissible notwithstanding the absence of proof
of emancipation, when the plaintiff testifies that after attaining majority, he or she promised the doctor and hos-
pital to pay such bills.[4]
The competency of an infant to testify may depend on a number of factors, including the ability to compre-
hend the difference between truth and lying.[5]
[FN1] § 174.
As to admissions and waivers by a general guardian for an infant, see Am. Jur. 2d, Guardian and Ward
§ 119.
[FN2] § 210.
[FN3] Iverson v. Scholl Inc., 136 Ill. App. 3d 962, 91 Ill. Dec. 407, 483 N.E.2d 893 (1st Dist. 1985).
[FN4] Fox v. Hopkins, 343 Ill. App. 404, 99 N.E.2d 363, 26 A.L.R.2d 352 (3d Dist. 1951).
[FN5] Am. Jur. 2d, Witnesses §§ 201 to 213.

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END OF DOCUMENT


Infants
VI. Actions
E. Evidence
§ 202. Presumptions and burden of proof
Burdens of proof and of coming forward with evidence do not change merely because the party alleged to
be negligent is an infant;[1] however, consideration must be given to the possibility that a child may be of such
tender years so as to be incapable of forming a desire to comply with the law.[2] The common-law presumption
of freedom from negligence for a child who is under 14 years of age ceases to operate when evidence is intro-
duced against that presumption.[3]
The burden of proving infancy, whether it is asserted as the ground of an action or a defense, is ordinarily
upon the infant who asserts it.[4] When one seeks relief against an infant defendant, whether at law or in equity,
the requisite elements of the cause of action must be proven.[5]
[FN1] Kurowsky v. Deutsch, 533 N.E.2d 1210 (Ind. 1989).
As to presumptions on appellate proceedings, see § 220.
[FN2] Kurowsky v. Deutsch, 533 N.E.2d 1210 (Ind. 1989).
As to presumptions of capacity for torts, see § 127.
[FN3] Friedman by Friedman v. Park Dist. of Highland Park, 151 Ill. App. 3d 374, 104 Ill. Dec. 329,
502 N.E.2d 826 (2d Dist. 1986).
[FN4] Freeman v. First Nat. Bank, 1914 OK 515, 44 Okla. 146, 143 P. 1165 (1914).
[FN5] Anderson v. Anderson, 133 N.J. Eq. 311, 32 A.2d 83 (Ch. 1943); Pyeatt v. Estus, 1916 OK 607,
72 Okla. 160, 179 P. 42, 4 A.L.R. 1570 (1916).

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END OF DOCUMENT


Infants
VI. Actions
E. Evidence
§ 203. Presumptions and burden of proof—As to representative of infant
A would-be next friend has the burden to prove that he or she has the capacity to serve as such.[1] When the
parents fail to appear in a summary nonpayment proceeding, with the result that their children could become
homeless, there is a presumption that someone other than the parents should be appointed the infants' guardian
for the purposes of the proceedings.[2]
[FN1] T.W. v. Brophy, 954 F. Supp. 1306, 36 Fed. R. Serv. 3d 1336 (E.D. Wis. 1996), judgment aff'd
as modified on other grounds, 124 F.3d 893, 38 Fed. R. Serv. 3d 1468 (7th Cir. 1997).
As to the qualification needed to act as the representative for an infant, see § 155.
[FN2] New York City Housing Authority v. Hart, 147 Misc. 2d 56, 554 N.Y.S.2d 979 (N.Y. City Civ.
Ct. 1990).
As to summary nonpayment proceedings, see Am. Jur. 2d, Landlord and Tenant § 857.
As to disqualification of infant representative, see § 156.
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END OF DOCUMENT


Infants
VI. Actions
E. Evidence
§ 204. Presumptions and burden of proof—As to necessaries
The burden of proving that things furnished to an infant are necessaries is upon the one who asserts the in-
fant's liability therefor[1] even when an infant brings an action to disaffirm a contract for their purchase or pro-
vision.[2]
Observation:
There is a presumption that an infant is supplied with all necessaries and that he or she does not need what is
furnished by the plaintiff which must be overcome by the plaintiff by the introduction of evidence.[3]
The doctrine of necessaries is sufficient to hold a minor child liable for medical expenses incurred by him or
her if it can be shown that his or her parent is unwilling or truly unable to pay them despite a statutory duty.[4]
When an infant suit in tort includes a claim for the payment of medical expenses,[5] the burden of proving
that the infant's parents could or would assume their obligation of paying for necessaries furnished their child is
on the defendant.[6] However, a minor who prevails on the liability issue in a medical malpractice action fails to
establish an entitlement to postminority medical expenses when he or she fails to prove that such expenses will
be incurred after reaching majority.[7]
[FN2] Robertson v. King, 225 Ark. 276, 280 S.W.2d 402, 52 A.L.R.2d 1108 (1955); Spaulding v. New
England Furniture Co., 154 Me. 330, 147 A.2d 916 (1959).
[FN3] Mauldin v. Southern Shorthand Business University, 126 Ga. 681, 55 S.E. 922 (1906).
As to the rule that articles are not necessaries to an infant if he or she has a parent or guardian who is
able and willing to supply them, see § 63.

[FN4] Pepper v. Johns Hopkins Hosp., 111 Md. App. 49, 680 A.2d 532 (1996), aff'd, 346 Md. 679, 697
A.2d 1358 (1997).
[FN5] § 144.
[FN6] Przestrzelski v. Board of Ed. of Ft. Plain School Dist., 71 A.D.2d 743, 419 N.Y.S.2d 256 (3d
Dep't 1979).
[FN7] Reilly v. Straub, 282 N.W.2d 688 (Iowa 1979).
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END OF DOCUMENT


Infants
VI. Actions
E. Evidence
§ 205. Presumptions and burden of proof—As to disaffirmance or ratification of contract
Forms
Am. Jur. Legal Forms 2d § 144:20 (Checklist—Matters to be considered in drafting notice of disaffirmance
of agreement)
Am. Jur. Legal Forms 2d §§ 144:21 to 144:23 (Notice of disaffirmance)
Am. Jur. Legal Forms 2d § 144:26 (Drafting ratification of minor's agreement)
Am. Jur. Legal Forms 2d § 144:27 (Notice of ratification of contract made during minority)
Am. Jur. Legal Forms 2d § 144:28 (Notice of ratification of purchase of land)
Am. Jur. Legal Forms 2d §§ 144:29, 144:30 (Ratification of contract)
When a former infant seeks to disaffirm a contract made by him or her during his or her infancy and recover
the property he or she parted with under the contract, the infant has the burden of excusing or explaining his or
her failure to restore the property which he or she received in trade.[1]
Caution:
There is also authority that when the other party to an infant's contract insists upon the restoration by the infant
of the consideration paid to him or her upon his or her avoidance of the contract, the other party has the burden
of showing that the consideration has not been expended by the infant and still remains in his or her possession.[
2]
The burden of proving ratification by the former infant[3] or the voluntary execution of an infant's contract
after he or she reaches maturity[4] is upon the one who seeks to enforce the contract.

As to the infant's duty to restore the consideration received upon his or her disaffirmance of a contract,
see §§ 84 to 88.
[FN3] Southern Cotton Oil Co. v. Dukes, 121 Ga. 787, 49 S.E. 788 (1905); International Accountants
Soc. v. Santana, 166 La. 671, 117 So. 768, 59 A.L.R. 276 (1928).
As to ratification by the infant, generally, see § 104.
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AMJUR INFANTS VI F REF Page 1
42 Am. Jur. 2d Infants VI F Refs.

Infants
VI. Actions
F. Trial
Research References
West's Key Number Digest, Infants 35 to 45, 101, 102
A.L.R. Library
West's A.L.R. Digest, Infants 35 to 45, 101, 102
rights reserved.
AMJUR INFANTS VI F REF
END OF DOCUMENT


Infants
VI. Actions
F. Trial
§ 206. Generally
Where a parent is not qualified to represent his or her children as their attorney, all claims raised by the par-
ent on the children's behalf will be dismissed.[1]
Because the law will not allow an infant to perpetrate a fraud, when he or she executes a release for value,
the jury should inquire to what extent he or she has been really benefited by the consideration paid and take that
into account in finding a verdict.[2] A trial court, in passing on a petition for voluntary discontinuance filed on
behalf of a minor, must give some consideration to the interests of the minor as well as consideration to the
factors of unreasonable inconvenience, vexation, harassment, expense, or prejudice to the defendant.[3]
When the court's ruling is contrary to the recommendation of a statutorily required guardian ad litem, the
reasons for not adopting the guardian ad litem's recommendation generally should be stated by the court in the
findings of fact and conclusions of law.[4] However, notwithstanding the guardian ad litem's responsibility to
perform his or her duties competently, the chancellor remains the ultimate fact finder and is not required to fol-
low the recommendations of the guardian ad litem.[5]
Because a defendant's right to cross examine is particularly important where there are inconsistencies in a
child's testimony, a trial court will be deemed to have abused its discretion if it permits an infant child's depos-
ition and municipal hearing transcripts to be read into evidence in lieu of live testimony.[6]
Cases:
Minor boy whose witnesses were ordered out of the courtroom and never permitted to testify at hearing on a
petition for an injunction against boy for protection against dating violence, and who was not permitted an op-
portunity to cross-examine minor petitioner, was not afforded the due process to which he was entitled. U.S.C.A.
Const.Amend. 14; West's F.S.A. § 784.046(6)(c). McNulty ex rel. G.M. v. Douglas ex rel. K.D., 111 So. 3d 231
(Fla. 2d DCA 2013).

[END OF SUPPLEMENT]
[FN1] Mohammad v. Bin Tarraf, 114 Fed. Appx. 417 (2d Cir. 2004).
[FN2] Worthy v. Jonesville Oil Mill, 77 S.C. 69, 57 S.E. 634 (1907); Clinchfield Coal Corp. v. Couch,
127 Va. 634, 104 S.E. 802, 13 A.L.R. 398 (1920).
[FN3] Gray ex rel. Gray v. Magee, 2004 PA Super 478, 864 A.2d 560 (2004).
[FN4] Neshoba County Dept. of Human Services v. Hodge, 919 So. 2d 1157 (Miss. Ct. App. 2006).
[FN5] Gainey v. Edington, 24 So. 3d 333 (Miss. Ct. App. 2009).
[FN6] M.S. v. County of Orange, 64 A.D.3d 560, 884 N.Y.S.2d 74 (2d Dep't 2009).
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END OF DOCUMENT


Infants
VI. Actions
F. Trial
§ 207. Lack of prosecution by infant or by representative
A minor's next friend has no authority to forfeit the minor's claim by the lack of prosecution of the claim ex-
cept by leave of the court[1] after a hearing and determination that the resulting dismissal should be with preju-
dice.[2] There is, however, authority for the dismissal of an action brought on behalf of an infant when the in-
fant's representative fails to amend a petition pursuant to a court order to properly allege procedural capacity.[3]
Observation:
When a minor is the real party in interest, if a suit is brought by the minor individually, it is not subject to dis-
missal on the ground of lack of capacity to sue.[4]
When it appears that there is a conflict between the interests of a minor and those of a next friend who insti-
tutes the suit on behalf of the minor, it is the duty of the court to appoint a guardian ad litem before acting on a
motion for nonsuit filed on behalf of the minor by the next friend.[5]
The trial court abuses its discretion by dismissing with prejudice the claim of an infant when, at the time of
the trial, necessary medical information has not been assembled due to the recalcitrance of the infant's next
friend.[6] However, an infant's suit will be subject to dismissal for want of prosecution within a period of time
after the infant attains majority.[7]
A procedural code limiting a plaintiff to one refiling of a lawsuit after a voluntary dismissal applies to re-
peated refilings by an infant.[8] When the claim of an infant plaintiff has not been voluntarily dismissed in a
previous action, whether a voluntary dismissal should be granted without prejudice is within the discretion of the
trial judge.[9]

[FN3] Jones v. Georgia Gulf Corp., 584 So. 2d 317 (La. Ct. App. 1st Cir. 1991), writ denied, 588 So. 2d
107 (La. 1991).
[FN4] Barlow By and Through Barlow v. Humana, Inc., 495 So. 2d 1048 (Ala. 1986).
As to name in which to bring infant's suit, see § 163.
[FN5] Gibson v. Blanton, 483 S.W.2d 372 (Tex. Civ. App. Houston 1st Dist. 1972).
As to the appointment of a guardian ad litem, see § 151.
[FN6] Fulton v. K & M Associates, 331 Md. 712, 629 A.2d 716 (1993).
[FN7] Beckham v. Travelers Ins. Co., 487 S.W.2d 772 (Tex. Civ. App. Amarillo 1972).
[FN8] Bernstein v. Gottlieb Memorial Hosp., 185 Ill. App. 3d 709, 134 Ill. Dec. 20, 542 N.E.2d 20 (1st
Dist. 1989) (second dismissal of lawsuit for failure to prosecute amounts to an adjudication on the mer-
its).
[FN9] Fulton v. K & M Associates, 331 Md. 712, 629 A.2d 716 (1993).
rights reserved.
END OF DOCUMENT


Infants
VI. Actions
F. Trial
§ 208. Questions for and instructions to jury
Whether the status of a child is sui juris or non sui juris is determined by the trier of fact.[1] The capability
of children to commit negligent acts is also a question of fact for the jury.[2]
In cases involving purchases by minors, whether there has been any overreaching on the part of the seller
and the fair market value of the property returned are questions for the trier of fact.[3] Whether an infant's con-
duct amounts to negligence or intentional conduct is an issue for the trier of fact,[4] as well as the comparative
fault of a particular infant in the particular circumstances,[5] and the contributory negligence of or assumption
of risk by the infant.[6]
Practice Tip:
A charge to the jury which states that the reasonable care required of a minor is measured by a yardstick differ-
ent than that of an adult is proper.[7] However, an instruction on an infant's capacity for negligence only in
terms of his or her age is reversible error.[8]
A failure to instruct whether a minor engaged in an adult activity is held to an adult standard of care is not a
manifest abuse of discretion.[9]
[FN1] Republic Ins. Co. v. Michel, 885 F. Supp. 426 (E.D. N.Y. 1995).
[FN2] § 123.
[FN3] Dodson by Dodson v. Shrader, 824 S.W.2d 545 (Tenn. 1992).
[FN4] Jackson v. Young, 125 Ga. App. 342, 187 S.E.2d 564 (1972); Honeycutt By and Through Phil-
lips v. City of Wichita, 247 Kan. 250, 796 P.2d 549 (1990); Dodson by Dodson v. Shrader, 824 S.W.2d
545 (Tenn. 1992).

[FN5] Honeycutt By and Through Phillips v. City of Wichita, 247 Kan. 250, 796 P.2d 549 (1990).
[FN6] Jackson v. Young, 125 Ga. App. 342, 187 S.E.2d 564 (1972).
[FN7] McIntyre v. Cusick, 247 Pa. Super. 354, 372 A.2d 864 (1977).
[FN8] Prater v. Burns, 525 S.W.2d 846 (Tenn. Ct. App. 1975).
[FN9] Kirchoffner v. Quam, 264 N.W.2d 203 (N.D. 1978).
rights reserved.
END OF DOCUMENT

AMJUR INFANTS VI G REF Page 1
42 Am. Jur. 2d Infants VI G Refs.

Infants
VI. Actions
G. Judgments and Decrees; Appeals
Research References
A.L.R. Library
rights reserved.
AMJUR INFANTS VI G REF
END OF DOCUMENT


Infants
VI. Actions
1. Judgments and Decrees
a. In General
§ 209. Generally
A trial court, whose duty it is to protect the interests of the infant, should see to it that they are not bar-
gained away by those assuming, or appointed, to represent the infant.[1] A court has broad authority to fashion
its rulings in the best interests of the infant.[2] The rule that a court has a duty to see that the rights of an infant
are adequately protected and is bound to notice substantial irregularities even though objections are not properly
presented on an infant's behalf does not mean that every failure to object to improper testimony by the counsel
for a minor litigant gives rise to reversible error.[3]
Judgment is properly entered in favor of a minor when the only impediment to a suit by the minor is one of
capacity, and the minor's interests are sufficiently protected by the presence of a next friend (such as a parent).[4
] As a general rule, an infant who is properly represented[5] in an action as a party thereto is bound by the judg-
ment or decree rendered in the case as if he or she were an adult[6] except when infants are allowed a review
after they become of age.[7]
Observation:
The doctrine of res judicata applies to infants as well as adults.[8]
An infant cannot avoid or impeach a judgment or decree against him or her merely on the ground of in-
fancy[9] but may seek to impeach it on any of the grounds available to an adult, such as fraud, collusion, or er-
ror.[10] Such a judgment or decree may also be impeached on those grounds which result from a failure to com-
ply with the rules of procedure or representation peculiarly applicable to proceedings involving an infant.[11]
Absent fraud by a guardian ad litem, a resulting decree is "final" and safe from subsequent direct or collater-
al attack[12] although an action to enforce judicially a minor's right to annul a judgment rendered against him or
her can be asserted collaterally and at any time.[13] However, there is other authority that a judgment against an
infant, like judgments against adults, cannot be collaterally attacked for fraud or error not affecting the court's

jurisdiction.[14]
Practice Tip:
Disregarding a motion to alter or amend a judgment filed by a nonattorney mother as next friend of her daugh-
ters is not warranted, though representative parties such as next friends normally are not permitted to conduct lit-
igation pro se, where the daughters have counsel through the issuance of judgment but are briefly without coun-
sel during the very limited time allotted for filing a motion to alter or amend judgment, replacement counsel is
retained to conduct proceedings on the motion and any subsequent appeal of the judgment, and treating the mo-
tion as invalid will harm the daughters' interest by barring them from challenging the underlying settlement
agreement on appeal.[15]
[FN1] Smith v. Smith, 358 Ill. App. 3d 790, 295 Ill. Dec. 510, 832 N.E.2d 960 (4th Dist. 2005).
[FN2] Chisholm v. Rueckhaus, 124 N.M. 255, 1997-NMCA-112, 948 P.2d 707 (Ct. App. 1997).
[FN3] Compton v. Dundee Tp. Park Dist., 129 Ill. App. 2d 36, 263 N.E.2d 146 (2d Dist. 1970).
[FN4] In re Cowden, 154 B.R. 531 (Bankr. E.D. Ark. 1993).
[FN5] §§ 148 to 158.
(1897); Wheeler v. First Alabama Bank of Birmingham, 364 So. 2d 1190 (Ala. 1978); Estate of
Shubert, 110 Misc. 2d 635, 442 N.Y.S.2d 703 (Sur. Ct. 1981); Lovett v. Stone, 239 N.C. 206, 79 S.E.2d
479, 60 A.L.R.2d 780 (1954).
[FN7] §§ 214, 215.
[FN8] Marshall v. Mayflower, Inc., 817 F. Supp. 922 (D. Kan. 1993); Maager v. Hoye, 122 F. Supp.
932 (E.D. N.C. 1954) (applying Virginia law).
As to res judicata, generally, see Am. Jur. 2d, Judgments § 463.
[FN9] Robison v. Floesch Const. Co., 291 Mo. 34, 236 S.W. 332, 20 A.L.R. 1239 (1921).
(1897); Robison v. Floesch Const. Co., 291 Mo. 34, 236 S.W. 332, 20 A.L.R. 1239 (1921); Whitney v.
Walker, 25 Utah 2d 202, 479 P.2d 469 (1971); Burke v. Northern Pac. Ry. Co., 86 Wash. 37, 149 P.
335 (1915).
[FN11] Brown v. State Farm Mut. Auto. Ins. Co., 449 S.W.2d 93 (Tex. Civ. App. Fort Worth 1969)
(disapproved of on other grounds by, Quaestor Investments, Inc. v. State of Chiapas, 997 S.W.2d 226
(Tex. 1999)).
[FN12] In re Silver's Will, 72 Misc. 2d 963, 340 N.Y.S.2d 335 (Sur. Ct. 1973).

[FN13] Snowden v. Huey P. Long Memorial Hosp. Through State, Dept. of Health and Human Re-
sources, 581 So. 2d 287 (La. Ct. App. 3d Cir. 1991), writ denied, 583 So. 2d 483 (La. 1991).
[FN14] Clark v. Southern Can Co., 116 Md. 85, 81 A. 271 (1911).
The improper failure to appoint a guardian ad litem results in a judgment that is subject only to direct
attack in the court that rendered that judgment, not to collateral attack in any federal or state court.
Cook v. Winters, 645 F. Supp. 158 (S.D. Tex. 1986).
[FN15] Elustra v. Mineo, 595 F.3d 699 (7th Cir. 2010).
rights reserved.
END OF DOCUMENT


Infants
VI. Actions
a. In General
§ 210. Judgments by default or confession
Although a contrary conclusion has been reached in some cases,[1] ordinarily, a default judgment should
not be entered against an infant[2] unless he or she is represented in the action by a general guardian or guardian
ad litem who has appeared in the case.[3]
The view has been expressed that a default judgment against an infant is not void, but is merely voidable or
erroneous,[4] and may be set aside in proper proceedings.[5] There is also authority that such a judgment is
void.[6]
Ordinarily, a judgment should not be entered against an infant by confession or on the admissions in the an-
swer.[7] Admissions or waivers by a next friend or guardian ad litem of an infant are not binding upon the infant
and do not dispense with proof even though they are contained in pleadings filed by such representative.[8] A
judgment entered against an infant by confession is voidable,[9] and may be set aside in proper proceedings,[10]
although there is also authority that such a judgment is void.[11]
Practice Tip:
Once a court appoints a guardian ad litem, the authority to pursue a minor's rights rests exclusively with the
guardian, and the parents cannot thereafter obtain a voluntary dismissal of the minor's claim.[12]
[FN1] Morris v. Mabry, 153 La. 1004, 97 So. 20 (1923); Kepler v. Union Joint Stock Land Bank of De-
troit, 26 Pa. D. & C. 521, 1936 WL 5514 (C.P. 1936).
[FN2] Seay v. Hawkins, 17 F.2d 710 (C.C.A. 8th Cir. 1927); Soper v. Foster, 244 Ky. 658, 51 S.W.2d
927 (1932); Shearer v. Coats, 434 N.W.2d 596 (S.D. 1989).

[FN3] Terrace Co. v. Calhoun, 37 Ill. App. 3d 757, 347 N.E.2d 315 (1st Dist. 1976); Shearer v. Coats,
434 N.W.2d 596 (S.D. 1989).
[FN4] Nesbitt v. Nesbitt, 1 Ariz. App. 293, 402 P.2d 228 (1965); Arkansas Trust Co. v. Sims, 198 Ark.
1143, 133 S.W.2d 854 (1939).
[FN5] Seay v. Hawkins, 17 F.2d 710 (C.C.A. 8th Cir. 1927); Keane v. Penha, 76 Cal. App. 2d 693, 173
P.2d 835 (2d Dist. 1946); Buttermore v. Hensley, 267 Ky. 669, 103 S.W.2d 68 (1937).
[FN6] Shearer v. Coats, 434 N.W.2d 596 (S.D. 1989).
[FN7] Seay v. Hawkins, 17 F.2d 710 (C.C.A. 8th Cir. 1927); Holderby v. Hagan, 57 W. Va. 341, 50
S.E. 437 (1905).
[FN8] § 174.
[FN9] Savage v. Rowell Distributing Corp., 95 So. 2d 415 (Fla. 1957).
[FN10] Barrasso v. Catarino, 49 Pa. D. & C. 540, 1944 WL 2175 (C.P. 1944).
[FN11] Terrace Co. v. Calhoun, 37 Ill. App. 3d 757, 347 N.E.2d 315 (1st Dist. 1976).
Dist. 1995).
As to compromise or settlement by representative, see § 175.
rights reserved.
END OF DOCUMENT


Infants
VI. Actions
a. In General
§ 211. Judgments by consent or on compromise; effect of approval
Generally, a court must approve any settlement offer made on behalf of an infant,[1] and in some jurisdic-
tions, a settlement of a minor's claim is unenforceable unless and until there has been approval by the probate
court.[2] This rule does not render the parents of a minor powerless to accept an offer of a judgment on the
minor's behalf; the rule requires only that the court approve a settlement offer before the entry of a judgment by
the clerk.[3] Thus, the mere entry on the court's docket of a "decree by consent" is not sufficient to bind infant
litigants who appear by a guardian ad litem or next friend[4] nor will the consent of the representative or the in-
fant alone render the judgment enforceable.[5] In such a case, the infant can sue to have the judgment set aside
on the basis of inadequate representation of his or her interests.[6]
Even if the parties and a court appointed guardian ad litem agree to a settlement, a judgment ratifying the
compromise cannot be rendered without a hearing and evidence that the settlement serves the minor's best in-
terest.[7] Courts have broad discretion when conducting infant compromise hearings.[8]
[FN1] § 140.
[FN2] Smith v. Smith, 358 Ill. App. 3d 790, 295 Ill. Dec. 510, 832 N.E.2d 960 (4th Dist. 2005).
[FN3] Bodek v. Gulliver Academy, Inc., 702 So. 2d 1331 (Fla. Dist. Ct. App. 3d Dist. 1997).
As to the power of an infant's representative to compromise, see § 175.
[FN4] Charles v. White, 214 Mo. 187, 112 S.W. 545 (1908).
[FN5] Campbell v. Campbell, 350 Mo. 169, 165 S.W.2d 851 (1942); Byrd v. Woodruff, 891 S.W.2d

dismissed by agreement, (Sept. 28, 1995).
As to the power of a next friend or guardian ad litem to make admissions or stipulations, to waive, or to
consent, generally, see § 174.
[FN7] § 140.
[FN8] Wagner & Wagner, LLP v. Atkinson, Haskins, Nellis, Brittingham, Gladd & Carwile, P.C., 596
F.3d 84 (2d Cir. 2010).
rights reserved.
END OF DOCUMENT


Infants
VI. Actions
a. In General
§ 212. Judgments by consent or on compromise; effect of approval—Motions to vacate compromise or set-

tlement
A.L.R. Library
Discretion of court to vacate its approval of settlement or release in respect of personal injury to minor, 8
A.L.R.2d 460
The failure to appoint a guardian ad litem to represent a minor before the court's approval of a settlement in
a lawsuit brought on behalf of the minor does not render the settlement and subsequent voluntary dismissal void
so as to subject it to a motion to vacate.[1]
According to a number of cases, a judgment entered on a compromise of an infant's claim is erroneous, and
may be set aside, when the court made no examination or investigation of the facts to determine whether the
compromise is for the best interests of the infant.[2] However, until set aside or reversed, a judgment entered on
a compromise without an investigation of the facts is binding and is not open to collateral attack.[3]
A decree approving a properly entered settlement of an infant's claim cannot thereafter be set aside on the
ground of subsequently changed conditions[4] or on evidence showing that the injuries sustained by the infant
are more serious than indicated at the time of settlement.[5]
There are some cases taking the view that a court's order approving the settlement or release of an infant's
claim for personal injuries, although executed without fraud, may, in a proper case, be vacated by the court in
the exercise of its discretion[6] and that the rule permitting the setting aside of a release executed in the settle-
ment of a minor's claim for personal injuries is more liberal than in other cases.[7] In other jurisdictions,
however, the court is without power to set aside its order approving the settlement of an infant's claim for per-
sonal injuries in the absence of a showing of prejudicial error in connection with the proceedings or of fraud or
collusion on the part of those involved.[8]

A consent decree properly entered against an infant defendant cannot be set aside except on the allegation
and proof of fraud.[9]
Observation:
It is not necessary that the fraud which will permit a consent judgment for an infant plaintiff to be vacated be the
fraud that arises through false representations made by the defendant to the infant or his next friend or to the
court; it is considered fraudulent to take advantage of the incompetency of an infant to protect his or her own in-
terest despite the fact that no false representations were made to the infant or his or her next friend or to the
court.[10]
Fraud cannot be established solely by proof that the amount of the judgment rendered in favor of the infant
plaintiff is not full or adequate compensation for the injuries he or she received.[11]
[FN1] Lopez v. Variety Children's Hosp., 600 So. 2d 506 (Fla. Dist. Ct. App. 3d Dist. 1992).
As to the necessity of court to appoint guardian ad litem, see § 151.
[FN2] Burton by Burton v. Estrada, 149 Ill. App. 3d 965, 103 Ill. Dec. 233, 501 N.E.2d 254 (1st Dist.
1986); Dearing v. Speedway Realty Co., 111 Ind. App. 585, 40 N.E.2d 414 (1942); Moebius v. Mc-
Cracken, 261 Mich. 409, 246 N.W. 163 (1933); Robison v. Floesch Const. Co., 291 Mo. 34, 236 S.W.
332, 20 A.L.R. 1239 (1921).
As to the duty of the court to investigate or conduct a hearing, see § 140.
[FN3] Clark v. Southern Can Co., 116 Md. 85, 81 A. 271 (1911); McGillvray v. Employers' Liability
Assur. Corporation, 214 Mass. 484, 102 N.E. 77 (1913).
(1897).
[FN5] In re Guardianship of Kelley, 172 Ohio St. 177, 15 Ohio Op. 2d 327, 174 N.E.2d 244 (1961).
[FN6] In re Clark's Estate, 318 Mich. 92, 27 N.W.2d 509 (1947); Application of Larson, 228 Minn. 216,
36 N.W.2d 601, 8 A.L.R.2d 455 (1949).
[FN7] McGovern v. Lutz, 242 Minn. 397, 65 N.W.2d 637 (1954).
[FN8] In re Guardianship of Kelley, 172 Ohio St. 177, 15 Ohio Op. 2d 327, 174 N.E.2d 244 (1961).
(1897); White v. Miller, 158 U.S. 128, 15 S. Ct. 788, 39 L. Ed. 921 (1895); Burke v. Northern Pac. Ry.
Co., 86 Wash. 37, 149 P. 335 (1915).
A trial court's orders finding, among other things, that her daughter was a disabled adult, that the guard-
ian ad litem's attorney's fees were to be paid from her daughter's Social Security disability benefits, and
that the mother and father were to share joint custody incorporated a valid and enforceable settlement

agreement from which a mother could not appeal absent a showing of fraud or coercion. In re Guardian-
ship of Huseman, 358 Ill. App. 3d 299, 294 Ill. Dec. 822, 831 N.E.2d 1147 (5th Dist. 2005).
rights reserved.
END OF DOCUMENT


Infants
VI. Actions
a. In General
§ 213. Time for vacating erroneous or voidable judgment; estoppel
The infant's right to vacate or set aside a judgment or decree against him or her which is erroneous or void-
able may be exercised either during his or her minority[1] or after reaching majority.[2]
Caution:
If the infant fails to institute proceedings to vacate or set aside an irregular and voidable judgment against him or
her within a reasonable time after reaching the age of majority, the delay will constitute a confirmation of the
judgment when the rights of bona fide purchasers are involved.[3]
[FN1] Keane v. Penha, 76 Cal. App. 2d 693, 173 P.2d 835 (2d Dist. 1946); Teel v. Dunnihoo, 221 Ill.
471, 77 N.E. 906 (1906).
[FN2] Keane v. Penha, 76 Cal. App. 2d 693, 173 P.2d 835 (2d Dist. 1946).
As to the infant's rights in some jurisdictions to move to show cause against a decree or judgment after
reaching majority, see § 214.
[FN3] Plant v. Humphries, 66 W. Va. 88, 66 S.E. 94 (1909).
As to the time within which a judgment against an infant may be reviewed by appeal or writ of error,
see § 219.
rights reserved.

END OF DOCUMENT


Infants
VI. Actions
b. Right to Challenge Judgment or Decree upon Reaching Majority
§ 214. Generally
It is the practice in equity in some jurisdictions that in cases in which an infant's rights or interests are af-
fected by a decree of the court, the infant is given a day or opportunity to show cause against the decree after he
or she attains majority,[1] notwithstanding that the statute of limitation governing such actions has run.[2]
Under the rule allowing an infant to show cause against a decree after reaching majority, an infant may at-
tack a judgment upon a ground not given to adults which resulted in an unjust decree against the infant.[3]
Observation:
The infant's right to question a decree under the rule, however, is not an absolute right to have the decree set
aside, but it is only to show cause against it.[4]
The failure to appoint a guardian ad litem for an infant defendant is not such cause as to warrant the setting
aside of a decree against him or her under the rule.[5] Similarly, when a defendant who was a minor at the time
a suit was filed reaches the age of majority at the time of trial, a judgment rendered against him or her is not an-
nullable as rendered against an incompetent person not represented as required by law.[6]
There is authority that the infant's right to show cause against a decree exists only when a decree operates to
divest the infant of an interest in land[7] and that such right is reserved only to infant defendants, not to infant
plaintiffs.[8]
[FN1] Crockett v. Root, 1943 OK 263, 194 Okla. 3, 146 P.2d 555 (1943).
[FN2] Outlaw v. Outlaw, 121 Ga. App. 284, 173 S.E.2d 459 (1970).

[FN4] Manfull v. Graham, 55 Neb. 645, 76 N.W. 19 (1898).
[FN5] § 164.
[FN6] Nicosia v. Guillory, 322 So. 2d 129 (La. 1975).
As to the effect of reaching the age of majority during the pendency of an action, see § 141.
rights reserved.
END OF DOCUMENT


Infants
VI. Actions
b. Right to Challenge Judgment or Decree upon Reaching Majority
§ 215. Under statute
The infant's right to show cause against a judgment or decree affecting his or her rights or interests after he
or she reaches his or her majority is provided for by statute in some jurisdictions.[1]
Practice Tip:
Many of these statutes specify a definite time after majority during which the infant must exercise his or her
right to show cause against a judgment or decree.[2] The statutory right of an infant to show cause against a
judgment or order affecting his or her property after he or she reaches the age of majority cannot be defeated by
a suit to quiet title brought against him or her during his or her infancy.[3]
[FN1] Foerster v. Helming, 105 Neb. 531, 181 N.W. 521 (1921); National Bank of Lima v. Squire, 22
Ohio L. Abs. 85, 1936 WL 2080 (Ct. App. 3d Dist. Allen County 1936).
[FN2] Purcell v. Gann, 113 Ark. 332, 168 S.W. 1102 (1914); Crockett v. Root, 1943 OK 263, 194 Okla.
3, 146 P.2d 555 (1943); Wilson v. Wilson, 39 Wash. 671, 82 P. 154 (1905); White v. White, 66 W. Va.
79, 66 S.E. 2 (1909).
[FN3] Pfister v. Johnson, 1935 OK 824, 173 Okla. 541, 49 P.2d 174, 102 A.L.R. 31 (1935).
rights reserved.
END OF DOCUMENT


Infants
VI. Actions
2. Appeals
§ 216. Generally
A infant's right to bring an appeal is limited by the same principles as those underlying the limitation of a
infant's right to bring an action in trial court; there is no reason to afford a right of appeal greater than the right
to sue in the first instance.[1] The lack of a guardian ad litem or next friend, however, does not deprive children
of standing to appeal from a judgment and is an amendable defect which can be waived.[2] Likewise, the failure
of a child's guardian to appeal will not prevent the child from appealing through a next friend.[3]
Observation:
The general rule that only an aggrieved party has standing to appeal an order applies to infants as well.[4]
An appeals court will not consider an argument on appeal that is raised for the first time on appeal,[5]
though in some jurisdictions, an exception to this rule exists where the interests of minors or incompetents are
involved.[6]
When a guardian ad litem is appointed for infant defendants and a judgment is entered against them, the
guardian ad litem can maintain an appeal to set aside the judgment for lack of jurisdiction, notwithstanding that
the trial court acquired no jurisdiction over the infants and hence its appointment of a guardian ad litem might
have been of no effect.[7] However, an appearance on appeal by an attorney who is not the legal representative
of the infant has no legal effect and no order affecting the infant can be rendered pursuant to that appeal[8] un-
less the infant can persuade the court that it is in his or her best interest to appeal.[9]
The abuse of discretion standard is applied when reviewing a trial court order approving the settlement of a
minor's claim[10] or awarding fees to a guardian ad litem.[11] A court's decision to appoint counsel for a minor
child is entirely discretionary, and as such, the failure of the court to appoint an attorney generally is not such a
clear abuse of discretion that a party would be entitled to reversal on that ground.[12] An abuse of discretion in
granting fees for a guardian ad litem appointed for a child in a marriage dissolution proceeding will be found
only if an appellate court determines that the trial court could not reasonably have concluded as it did.[13] A tri-

al court abuses its discretion when a decision is based upon an error of law or upon factual findings that are
without evidentiary support.[14]
[FN1] Newman v. Newman, 235 Conn. 82, 663 A.2d 980 (1995).
[FN3] Johnson v. Johnson, 1993 OK CIV APP 28, 848 P.2d 72 (Ct. App. Div. 3 1993) (a trial court's
decision in favor of the child and mother as custodial parent could be appealed by the child through his
father as next friend; if an appeal were not permitted, the infant would be left without review of de-
cision when the mother did not wish to appeal).
[FN4] Caruso v. Caputo, 143 A.D.2d 795, 533 N.Y.S.2d 493 (2d Dep't 1988).
[FN5] In re L.D.M., 872 So. 2d 655 (Miss. 2004); Alberswerth v. Alberswerth, 184 S.W.3d 81 (Mo. Ct.
App. W.D. 2006); Slusaw v. Hoffman, 2004 PA Super 354, 861 A.2d 269 (2004).
[FN6] South Carolina Dept. of Social Services v. Roe, 371 S.C. 450, 639 S.E.2d 165 (Ct. App. 2006).
[FN8] Caruso v. Caputo, 143 A.D.2d 795, 533 N.Y.S.2d 493 (2d Dep't 1988).
[FN10] Matter of Estate of Brandon, 902 P.2d 1299 (Alaska 1995).
[FN11] Arnal v. Arnal, 363 S.C. 268, 609 S.E.2d 821 (Ct. App. 2005), aff'd as modified, 371 S.C. 10,
636 S.E.2d 864 (2006); Ford Motor Co. v. Chacon, 2010 WL 1986326 (Tex. App. El Paso 2010), peti-
tion for review filed, (Aug. 4, 2010).
[FN12] Payton v. Payton, 103 Conn. App. 825, 930 A.2d 802 (2007).
[FN13] Rubenstein v. Rubenstein, 107 Conn. App. 488, 945 A.2d 1043 (2008), certification denied, 289
Conn. 948, 960 A.2d 1037 (2008).
[FN14] Payne v. Payne, 382 S.C. 62, 674 S.E.2d 515 (Ct. App. 2009).
rights reserved.
END OF DOCUMENT


Infants
VI. Actions
2. Appeals
§ 217. As to points not raised on appeal
It is said that an appellate court, like the trial court,[1] has a duty to see that the rights of minors are ad-
equately protected and is bound to notice substantial irregularities even though they are not expressly presented.[
2] There is, however, authority that a failure to raise a point on appeal will waive the error.[3]
[FN1] § 139.
[FN2] In re E. H., 78 Ill. App. 3d 854, 34 Ill. Dec. 115, 397 N.E.2d 571 (4th Dist. 1979); Wasson v.
Wasson, 92 N.M. 162, 584 P.2d 713 (Ct. App. 1978); Payne v. Cartee, 111 Ohio App. 3d 580, 676
N.E.2d 946 (4th Dist. Ross County 1996).
[FN3] McDowell v. McDowell, 670 S.W.2d 518 (Mo. Ct. App. E.D. 1984).
The adoptive father waived any error regarding the trial court's failure to appoint a guardian ad litem to
represent the interest of the child by his failure to bring the point on appeal and his failure to object at
the trial court level. Linan v. Linan, 632 S.W.2d 155 (Tex. App. Corpus Christi 1982).
As to the effect of failure to properly brief or argue an issue on appeal, see Am. Jur. 2d, Appellate Re-
view § 577.
rights reserved.
END OF DOCUMENT


Infants
VI. Actions
2. Appeals
§ 218. Review regarding appointment of guardian ad litem
A court's decision appointing or declining to appoint a guardian ad litem generally will not be overturned
absent a showing of an abuse of discretion by the trial court.[1] A trial court's failure to appoint a next friend or
guardian ad litem in a particular case, as required by state law, is reversible error absent any showing that the
child's interests have been otherwise adequately protected.[2] A trial court's failure to appoint a guardian ad
litem, and a finding that the claims of the children against another party are barred under a compulsory counter-
claim rule, or the doctrine of res judicata, effectively deprives them of their day in court and constitutes plain er-
ror, requiring remand.[3]
Observation:
In review on appeal, if the appellate court is unable to ascertain whether the lower court has properly exercised
its discretion whether to appoint a guardian ad litem for an infant, the appropriate course by the appellate court
is to vacate the judgment and remand the case to the lower court for further proceedings consistent with its stat-
utory duty.[4]
The rule of court governing the substitution of parties pending appeal does not authorize a trial court to re-
move a guardian ad litem for a child after an appeal and conflicts with the jurisdiction of the appellate courts.[5]
[FN1] Rubright v. Arnold, 973 P.2d 580 (Alaska 1999); Payne v. Cartee, 111 Ohio App. 3d 580, 676
N.E.2d 946 (4th Dist. Ross County 1996); Coleson v. Bethan, 931 S.W.2d 706 (Tex. App. Fort Worth
1996).
As to the necessity of appointing a representative for an infant, see § 149.
As to the effect of lack of representation, see §§ 164 to 168.

[FN2] A.M.C.B. v. Cox, 292 S.W.3d 428 (Mo. Ct. App. E.D. 2009).
[FN3] Fender v. Miles, 185 Ohio App. 3d 136, 2009-Ohio-6043, 923 N.E.2d 631 (12th Dist. Brown
County 2009).
[FN4] Padilla v. Melendez, 228 Ga. App. 460, 491 S.E.2d 905 (1997).
[FN5] Hollaway v. Scripps Memorial Hospital, 111 Cal. App. 3d 719, 168 Cal. Rptr. 782 (4th Dist.
1980).
As to the removal of representatives, generally, see § 160.
rights reserved.
END OF DOCUMENT


Infants
VI. Actions
2. Appeals
§ 219. Time for review
An infant may bring appeal or error proceedings to review a judgment or decree during his or her minority[1
] or within the prescribed period after reaching majority.[2]
Observation:
When the running of the period for seeking appellate review is postponed by statute during infancy, the infant
has only the statutory period after his or her majority in which to institute the proceeding.[3]
[FN1] Kingsbury v. Buckner, 134 U.S. 650, 10 S. Ct. 638, 33 L. Ed. 1047 (1890).
[FN2] Spotts v. Spotts, 331 Mo. 917, 55 S.W.2d 977, 87 A.L.R. 660 (1932); Pfister v. Johnson, 1935
OK 824, 173 Okla. 541, 49 P.2d 174, 102 A.L.R. 31 (1935).
[FN3] Rankin v. Schofield, 70 Ark. 83, 66 S.W. 197 (1902); Pfister v. Johnson, 1935 OK 824, 173
Okla. 541, 49 P.2d 174, 102 A.L.R. 31 (1935).
rights reserved.
END OF DOCUMENT


Infants
VI. Actions
2. Appeals
§ 220. Presumptions
Upon an appeal from a judgment against an infant, there is a presumption against fraud, negligence, inatten-
tion to duties, or other improper action on the part of either the guardian ad litem of an infant or the court.[1]
The mere failure of a guardian ad litem and next friend to apply for a rehearing following an adverse decision on
appeal does not raise any presumption of infidelity to his or her trust so as to support the contention that such
decision was obtained by fraud or collusion.[2] The manifest weight of the evidence standard applies when re-
viewing a trial court's decision whether a person intended to ratify a contract made while a minor or after reach-
ing the age of majority.[3]
It is presumed that trial transcripts not included in the record on appeal support an award of fees for an at-
torney appointed to represent an infant.[4]
[FN2] Kingsbury v. Buckner, 134 U.S. 650, 10 S. Ct. 638, 33 L. Ed. 1047 (1890).
[FN4] In re Custody of Landau, 233 Ill. App. 3d 853, 175 Ill. Dec. 402, 600 N.E.2d 25 (1st Dist. 1992).
rights reserved.
END OF DOCUMENT

AMJUR INFANTS COR Page 1
42 Am. Jur. 2d Infants Correlation Table

Infants
Topic Summary
Correlation Table
Infants
2000............................................................................ 2010
1................................................................................. §1
2................................................................................. §2
3................................................................................. §3
4................................................................................. DELETED
5................................................................................. §4
6................................................................................. §5
7................................................................................. §6
8................................................................................. §7
9................................................................................. §8
10............................................................................... §9
11............................................................................... §10
12............................................................................... §11
13............................................................................... §12
14............................................................................... §13
15............................................................................... §14
16............................................................................... §15
17............................................................................... §16
18............................................................................... §17
19............................................................................... §18
20............................................................................... §19
21............................................................................... DELETED
22............................................................................... §20
23............................................................................... §21
24............................................................................... §22
25............................................................................... §23
26............................................................................... DELETED
27............................................................................... DELETED
28............................................................................... DELETED
29............................................................................... DELETED
30............................................................................... §24

31............................................................................... §25
32............................................................................... §26
33............................................................................... §27
34............................................................................... §28
35............................................................................... §29
36............................................................................... §30
37............................................................................... §31
38............................................................................... §32
39............................................................................... §33
40............................................................................... §34
41............................................................................... §35
42............................................................................... §36
43............................................................................... §37
44............................................................................... §38
45............................................................................... §39
46............................................................................... §40
47............................................................................... §41
48............................................................................... §42
49............................................................................... §43
50............................................................................... §44
51............................................................................... §45
52............................................................................... §46
53............................................................................... §47
54............................................................................... §48
55............................................................................... §49
56............................................................................... §50
57............................................................................... §51
58............................................................................... §52
59............................................................................... §53
60............................................................................... §54
61............................................................................... §55
62............................................................................... DELETED
63............................................................................... §56
64............................................................................... §57
65............................................................................... §58
66............................................................................... §59
67............................................................................... DELETED
68............................................................................... §60
69............................................................................... §61
70............................................................................... §62
71............................................................................... §63
72............................................................................... §64
73............................................................................... §65
74............................................................................... §66
75............................................................................... §67

76............................................................................... §68
77............................................................................... §69
78............................................................................... §70
79............................................................................... §71
80............................................................................... §72
81............................................................................... §73
82............................................................................... §74
83............................................................................... §75
84............................................................................... §76
85............................................................................... §77
86............................................................................... §78
87............................................................................... §79
88............................................................................... §80
89............................................................................... §81
90............................................................................... DELETED
91............................................................................... §82
92............................................................................... §83
93............................................................................... §84
94............................................................................... §85
95............................................................................... §86
96............................................................................... §87
97............................................................................... §88
98............................................................................... §89
99............................................................................... §90
100.............................................................................. §91
101.............................................................................. §92
102.............................................................................. §93
103.............................................................................. §94
104.............................................................................. §95
105.............................................................................. §96
106.............................................................................. §97
107.............................................................................. §98
108.............................................................................. §99
109.............................................................................. §100
110.............................................................................. §101
111.............................................................................. §102
112.............................................................................. §103
113.............................................................................. §104
114.............................................................................. §105
115.............................................................................. §106
116.............................................................................. §107
117.............................................................................. DELETED
118.............................................................................. §108
119.............................................................................. §109
120.............................................................................. §110

121.............................................................................. DELETED
122.............................................................................. §111
123.............................................................................. §112
124.............................................................................. §113
125.............................................................................. §114
126.............................................................................. §115
127.............................................................................. §116
128.............................................................................. §117
129.............................................................................. §118
130.............................................................................. §119
131.............................................................................. §120
132.............................................................................. §121
133.............................................................................. §122
134.............................................................................. §123
135.............................................................................. §124
136.............................................................................. §125
137.............................................................................. §126
138.............................................................................. §127
139.............................................................................. §128
140.............................................................................. §129
141.............................................................................. §130
142.............................................................................. §131
143.............................................................................. §132
144.............................................................................. §133
145.............................................................................. §134
146.............................................................................. DELETED
147.............................................................................. §135
148.............................................................................. §136
149.............................................................................. §137
150.............................................................................. §138
151.............................................................................. §139
152.............................................................................. §140
153.............................................................................. §141
154.............................................................................. §142
155.............................................................................. §143
156.............................................................................. §144
157.............................................................................. §145
158.............................................................................. §146
159.............................................................................. §147
160.............................................................................. §148
161.............................................................................. §149
162.............................................................................. §150
163.............................................................................. §151
164.............................................................................. §152
165.............................................................................. §153

166.............................................................................. §154
167.............................................................................. DELETED
168.............................................................................. §155
169.............................................................................. §156
170.............................................................................. §157
171.............................................................................. §158
172.............................................................................. §159
173.............................................................................. §160
174.............................................................................. §161
175.............................................................................. §162
176.............................................................................. §163
177.............................................................................. §164
178.............................................................................. §165
179.............................................................................. §166
180.............................................................................. §167
181.............................................................................. §168
182.............................................................................. §169
183.............................................................................. §170
184.............................................................................. §171
185.............................................................................. §172
186.............................................................................. §173
187.............................................................................. §174
188.............................................................................. §175
189.............................................................................. §176
190.............................................................................. §177
191.............................................................................. §178
192.............................................................................. §179
193.............................................................................. §180
194.............................................................................. §181
195.............................................................................. §182
196.............................................................................. §183
197.............................................................................. §184
198.............................................................................. §185
199.............................................................................. §186
200.............................................................................. §187
201.............................................................................. §188
202.............................................................................. §189
203.............................................................................. §190
204.............................................................................. DELETED
205.............................................................................. §191
206.............................................................................. §192
207.............................................................................. §193
208.............................................................................. §194
209.............................................................................. §195
210.............................................................................. §196

211.............................................................................. §197
212.............................................................................. §198
213.............................................................................. §199
214.............................................................................. §200
215.............................................................................. §201
216.............................................................................. §202
217.............................................................................. §203
218.............................................................................. §204
219.............................................................................. §205
220.............................................................................. §206
221.............................................................................. §207
222.............................................................................. §208
223.............................................................................. §209
224.............................................................................. §210
225.............................................................................. §211
226.............................................................................. §212
227.............................................................................. §212
228.............................................................................. §213
229.............................................................................. §214
230.............................................................................. §215
231.............................................................................. §216
232.............................................................................. §217
233.............................................................................. §218
234.............................................................................. §219
235.............................................................................. §220
rights reserved.
AMJUR INFANTS COR
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AMJUR INFANTS SUM Page 1

42 Am. Jur. 2d Infants Summary

American Jurisprudence, Second Edition

© 2013 Thomson Reuters. No Claim to Orig. US Gov. Works.

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American Law Reports (ALR)

American Jurisprudence 2d (AMJUR)

American Jurisprudence Legal Forms 2d (AMJUR-LF)

American Jurisprudence Proof of Facts (AMJUR-POF)

American Jurisprudence Pleading and Practice Forms Annotated (AMJUR-PP)

American Jurisprudence Trials (AMJUR-TRIALS)

AMJUR INFANTS SUM

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American Jurisprudence, Second Edition

Topic Summary Correlation Table

West's Key Number Digest

West's Key Number Digest, Infants 1 to 4, 12(1), 12(2)

A.L.R. Index, Children and Minors

A.L.R. Index, Emancipation of Children

West's A.L.R. Digest, Infants 1 to 4, 12(1), 12(2)

Model Codes and Restatements

Restatement Second, Contracts § 14, Comment a

AMJUR INFANTS I A REF

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American Jurisprudence, Second Edition

Topic Summary Correlation Table References

West's Key Number Digest

West's Key Number Digest, Infants 1

[FN2] Ewart v. Dalby, 319 Mo. 108, 5 S.W.2d 428 (1928).

© 2013 Thomson Reuters. No Claim to Orig. US Gov. Works.

As to termination of infancy or minority, see §§ 4 to 11.

[FN10] Restatement Second, Contracts § 14, Comment a.

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American Jurisprudence, Second Edition

Topic Summary Correlation Table References

West's Key Number Digest

West's Key Number Digest, Infants 2 to 4, 12(1), 12(2)

As to statutory protection of infants, generally, see §§ 12 to 14.

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American Jurisprudence, Second Edition

Topic Summary Correlation Table References

§ 3. When infancy begins

West's Key Number Digest

West's Key Number Digest, Infants 1

A fetus is not a person within the context of juvenile law.[6]

[FN5] People v. Lage, 232 P.3d 138 (Colo. App. 2009).

© 2013 Thomson Reuters. No Claim to Orig. US Gov. Works.

© 2013 Thomson Reuters. No Claim to Orig. US Gov. Works.

American Jurisprudence, Second Edition

Topic Summary Correlation Table

West's Key Number Digest

West's Key Number Digest, Infants 1 to 4, 9 to 12(2), 12(10)

A.L.R. Index, Children and Minors

A.L.R. Index, Emancipation of Children

West's A.L.R. Digest, Infants 1 to 4, 9 to 12(2), 12(10)

Am. Jur. Legal Forms 2d § 144:4

Am. Jur. Pleading and Practice Forms, Infants §§ 4, 6, 8, 9

Model Codes and Restatements

Restatement Second, Contracts § 14, Comment a

AMJUR INFANTS I B REF

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American Jurisprudence, Second Edition

Topic Summary Correlation Table References