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Legal Grind® presents

The Little Law Book

by Miriam Kurtzig Freedman, J.D
Illustrations by Daphne San Jose


Who is a Person?

In the United States all persons have equal protection under the law. But, who is a person? This question is easy to ask, but not so easy to answer. Disputes over the definition have been going on throughout our history and continue today on many fronts. Logically, a person is a human being-male or female, adult or child. But legally, a person can also be a corporation.

The concept of personhood became important in 1868, after the Civil War, when the Fourteenth Amendment, was ratified. Before that, slaves were not considered persons: in the Constitution they were considered three fifths of a person. The Fourteenth Amendment states, in part, ìnor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.î Over the years Fourteenth Amendment definitions have been the basis of long and hard court fights.

So who is a person? And what is the equal protection of the laws? By now the following definitions have emerged-but they are always subject to change.

Not surprisingly, a person may be a human being, or a ìnatural person.î Or an artificial person, such as a corporation, a labor union, or another organization.

But, contrary to popular belief, not all human beings are persons for all purposes. An illegitimate child is a person under the Fourteenth Amendment and the wrongful-death statutes of all the states, but may not be under all inheritance laws. Thus an illegitimate child may not inherit from his father through intestacy unless he is legitimized. See state law-this is a rapidly changing area of law.

An illegitimate child is a child born at a time his parents are not married to each other. If his parents marry between the time he is conceived and the time he is born, he is considered legitimate. Legitimation is the court procedure by which an illegitimate child becomes legitimate.

Courts and society are now grappling with this question: Is an unborn child a person under the Fourteenth Amendment? At what stage of fetal development, if any, does that unborn child become a ìpersonî? A fetus is an unborn child between the eighth week after conception until birth. Before the eighth week the emerging child is generally called an 'embryo.'

Thus it's the battle over the definition of person that underlies part of the current abortion struggle. If a fetus is a person, then he is entitled to equal protection of the laws and the right to life. Then, from a legal standpoint, there can be no abortion. If a fetus is not a person, then there is no such entitlement to equal protection. Competing interests can prevail, such as the womanís right to privacy or freedom of choice.

In legal terms there are also several levels of fetal development, each with its own consequences. For example, a viable unborn child is a fetus that would have been born but for the negligence of someone. Hence, a viable unborn child is a person under the wrongful-death statutes. If a fetus dies in a car accident or through medical malpractice, his parent may sue the negligent driver or doctor for damages under the wrongful-death statutes.

Wrongful-death statutes are laws, observed in all states and by the federal government that permits an executor, an administrator, or an heir to sue for damages when someone dies because of negligence by another person. These statutes changed the common law, by which a personís rights died when he did. The law classifies people in other ways, also. Each of us is either competent or incompetent. Adults are competent, unless a court because of mental disability or other infirmity has judged them incompetent. Children (minors) are incompetent.

You can't be guilty of a crime if you were incompetent at the time. You can't sign a contract (Κ) if you do not have legal capacity to consent to the Κ. Then there is the related concept of ìcompetency to stand trialî in a criminal case. This has to do with the defendantís (∆ís) present ability to understand the proceedings, consult with his attorney, and aid in his defense. These terms and concepts are explained below.

Age of minority

refers to a person who is a child, or a minor; that is, someone below the age of majority or the age of consent. This age is usually eighteen, though it differs from state to state. Also, different rights may emerge at different ages in any state. For example, an eighteen-year-old has the right to vote, but may not be able to drink or marry.

Age of majority

refers to an adult; that is, someone over the age of majority. An adult is legally able to take care of himself.

Mental incompetency

is determined by a court. It refers to an adult who has been judged unable to care for himself due to mental disability or unfitness. A child has no legal capacity to be an adult. This is because a minor is below the legal age of consent. The law states that a minor cannot agree to anything binding. He cannot buy property, enter into a Κ, marry without parental consent, write a will, or take other actions that can legally be done by an adult.

incompetence drawing

An incompetent adult's rights depend on the court order involved and the relevant state statutes. For example, some may marry; others may not.

Because of this 'incompetency,' if a minor enters into a Κ, it may be voidable. If a minor engages in sexual intercourse with someone ìover the age of consent,î the adult can present no evidence that will rebut the lawís presumption that a minor cannot consent to sexual intercourse. Since an important defense for rape is consent, the accused may have no fact to rebut (contradict) the presumption. The rape involved is called ìstatutory rape.î Statutory rape is based on an irrebuttable presumption-that is, a legal conclusion that canít be contradicted by any facts.

An irrebuttable presumption also exists that a very young child cannot commit a crime. (The age differs from state to state, but itís usually around seven.) Thus, if a young child commits an act that would be criminal if committed by an adult, he cannot be charged with that crime because of the irrebuttable presumption. Again, check local laws!

The minor's parents are his legal guardians unless a court appoints someone else. An adult is his own legal guardian. The court appoints a legal guardian for an incompetent, or ward.

The following definitions of parents and children are based on common law. But many of these relationships are evolving and changing by statutes. When in doubt, check local laws on any of these matters!

A child has rights to the support, care, and protection of his parents. A parent has the responsibility to provide support, care, and protection for his child. Usually, when a child reaches the age of majority, a parentís duty of support ends. Sometimes, however, it continues, particularly for educational expenses. A parent may be obligated to pay his (adult) childís college bills! This is spelled out often in divorce settlements and cases.

A child is subject to the control and supervision of his parent. He has to obey them. A parent has the right to a childís obedience, and, under common law, the right to all the earnings of his minor child. Because of this duty to obey, a child is subject to status offenses that would not be crimes if committed by an adult. These offenses include truancy (not attending school), running away from home, and disobeying parents (also known as being an incorrigible child). Alternatively, because of the parentís duty to support, protect, and care for a child, a parent who breaches that duty may be found guilty of neglect or abuse.

Since so much in the law is a balancing of rights, the flip side of this part of law asserts that a child who commits a crime may be charged in Juvenile Court as a juvenile offender or juvenile delinquent for a crime that nor- mally would be an adult crime. Usually, juvenile courts treat minors in a less punitive manner, with more emphasis on early rehabilitation. The law in this field is constantly evolving. Often when a minor commits a heinous crime, you may read that the prosecutor seeks to have the juvenile tried as an adult, to avoid these protections.

On the other hand (in law, there is always another hand!), if a minor engages in an adult activity, he may be charged as an adult. Take driving, for example. The law presumes that anyone who drives consents to obey the rules of the road. This includes minors. Clearly, this is inconsistent, since minors are not competent and canít consent! But there it is. It's hard to have it both ways.

When a parent is guilty of abuse or neglect, why can the state remove the child from the parent? Ah, because of the concept of parens patriae! The state is considered the parent of us all, the ìsuperparentî. Legally, the state places a child in his parentís care. If the parent does a fine job, all is well. If the parent neglects or abuses the child, the state may exercise its right/duty of parens patriae and intervene to protect the child. The concept of parens patriae is very important in understanding much of modern-day social welfare law.


A minor may become emancipated either by reaching the age of majority or by demonstrating his independence. This may be through marriage, by joining the armed services, or by moving out of the house and being self-supporting. Local law may differ on this one! If a child becomes emancipated, the parentís duties of support and care usually end. Again, state laws differ here. Check them!

Finally, we get to answer the question:

Who is a parent legally? And are there different types of 'parent'?
Basically, there are two types of parent: natural and adoptive. Generally speaking, a natural parent is the mother or father to whom a child is born. These definitions used to be easy, but with test-tube babies, in vitro fertilization, surrogate mothers, and other complexities related to modern science, they are far reatic. Sometimes it's hard to know who is the father or mother of a child. Sometimes it's hard to know who is the father or mother of a child. Sometimes there is more than one of each! This situation presents a clear example of law's challenge to keep up with science and ada t its definitions to changing times. An adoptive parent adopts a child through a court action. Adoption is a court proceeding that establishes the relation of parent and child for people who are not the natural parents. The adoption process substitutes adoptive parent(s) for natural parent(s). Remember that parental rights may end only by court order, and they may start, as in adoption, only by court order. Traditionally, the term parent does not include the following:


A person married to a child's parent who has not adopted the child. In old common law a stepparent had no legal obligation to support or care for a child. Now, by statute in many states, this is changing.

Foster parent:

A person who performs parental duties of care, supervision, and support for a child not his own. Usually, a foster parent is appointed by a state agency and is paid the childís expenses. Generally, a foster parent has physical, but not legal, custody of the child.

Surrogate parent

(the old definition; not the surrogate mother who carries a baby to term for someone else): A person who voluntarily assumes the rights and responsibilities of a parent, without the legal title. A surrogate is a substitute. He or she may also be someone appointed by a court to make educational decisions for a child.


A parent of a child's parents. A grandparent used to have no legal rights relating to a grandchild. But there are cases now, in which a grandparent is given visitation rights and sometimes other legal rights in a divorce situation. As times change, so does the law.

Here are some related terms:

Guardian or legal guardian:

Someone appointed by a court to care for a minor or an incompetent adult and, in some cases, for his property or estate. The minor or incompetent adult is called the ward.

Guardian ad litem:

Someone appointed by a court to investigate a case from the wardís perspective and to protect a wardís rights and interests in a specific legal proceeding.


Someone appointed by a court to care for an incompetentís property. This is a less drastic measure than a guardianship.

Next friend:

Someone who volunteers to protect the rights of a minor or incompetent adult in a legal proceeding. This person is not court appointed but acts as a court 'officer' or 'agent.' The following terms do not involve court actions.

Power of attorney:

A document or instrument by which a person appoints someone to perform certain acts for him, such as writing checks, taking funds from bank accounts, or paying bills. The appointer is called the ì principalî; the appointed, the ìagentî or ìattorneyî appointed by the document. The instrument is evidence to all third parties that the attorney is authorized to act for the principal. For example, if you are a bank teller, itís okay to give the attorney money from the principalís account- once you verify the power of attorney. Note: The, term attorney, as used here, does not mean 'lawyer' or 'attorney at law.' It means agent. Of course a 'lawyer' may be appointed to serve this function.
The power of attorney ends upon the death of the principal.

Durable power of attorney:

Same as above, except that it is effective when the principal becomes incapacitated or disabled. The durable power of attorney is created by state statutes and differs from state to state.

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