Which Parent Has Authority?

One common question that I get is which parents have authority over the children in a program. As with all legal questions, it depends.

In Georgia, for example, biological parents are considered the proper guardians of the child. If the parents are still married, then either parent may sign your contract and check a child out of the program. If the parents never married or are divorced, then the question is a bit more complicated.

If the child's parents were never married, and the father has not legitimated the child, then the mother has "all parental power." Thus, you cannot allow the father to check a child out of the program unless (a) he has legitimated the child or (b) the mother gives you written consent. Similarly, any contract that the never-married father signs with you for care of the child may be invalid. At a minimum, you would lose the ability to claim any waivers that may be in your parent handbook, for example. So, even if it seems intrusive to ask these questions, you need to either insist that only the mother sign agreements, or ask the parents to give you a copy of either a marriage certificate or legitimation papers. Otherwise, if there are any problems, you may find your legal defenses to be limited.

If a father has not legitimated a child, BUT has received a court order governing visitation, then the court order will control. Ask for a copy of the order, and check what it says about legal custody. That concept is different from physical custody, which simply determines which parent is the primary caretaker of the child. Legal custody defines whether one or both parents have the authority to make legal decisions, such as signing for medical care or enrolling a child in your program. If the order gives an unwed father legal custody, then you can treat the parents just as you would married-and-divorced parents.

If the child’s parents are divorced, then, you will have to find out what the custody decree says. Any parent with sole custody is the sole guardian. However, if both parents have legal custody (a very common provision), then "both parents are the natural guardians of the minor." In that case, either parent can sign agreements for the child’s care. Either parent’s ability to check a child out of your program will depend on what the custody agreement says about physical custody. Generally, the custodial parent has ultimate authority on who can check the child out of your program and when.

Other states have similar provisions and similar restrictions. As difficult as it is to ask personal questions of the parents in your program, you need to know these answers in order to protect your program while caring for your clients.