BLANK

Can a parent discipline a child by taking the child’s phone away?

Can a parent discipline a child by taking the child’s phone away?

Before researching this question, I thought the answer was obvious. It’s not. As a both a lawyer and a parent myself, I always believed that I had control over my minor children’s property, meaning I could, among other things, withhold use of a phone or a bike as a disciplinary measure. Now I’m not so sure. Here’s what I found. What do you think? (read this whole thing because if you don’t you’ll be fooled):

I found two cases (in Texas and Michigan) in which a parent was arrested and charged with theft of a phone. In the Texas case, a father was charged with theft, but the court found the father not guilty because there was insufficient evidence of theft. The mother of the child claimed the phone was hers, but the court could not determine ownership. In the Michigan case, a mother was charged with theft, but charges were dropped when it was discovered that the phone was not the property of the ex-husband/father, but that the minor daughter’s owned the phone.

From what I can tell from the cursory research I have conducted, I can confidently conclude: 1) courts and prosecutors generally don’t want to deal with these kinds of family disputes (good for them) and 2) these kinds of cases can turn out however the prosecutors and/or courts want, i.e., they can construe the same facts and the same law to reach the desired outcome either way. Otherwise stated, if a conviction for theft is wanted, it can be found “as a matter of law” that taking a child’s phone is theft, and if a conviction for theft is not wanted, it can be found “as a matter of law” (often times referring to the same statutes) that a parent taking the child’s phone away was not theft.

But is there a more definitive legal answer? Here’s what I found on that question:

See 61 A.L.R.2d 1270 (Originally published in 1958):

§ 1. Generally [Cumulative Supplement]

Although a parent, either as natural guardian or otherwise, has no title to the property of his minor child, nor any custody or control over it, and may make a gift inter vivos to such child which, when fully executed, is irrevocable, property furnished by a parent to his child for the purpose of support and maintenance, or education, unless in some definite way given to the child as his own property, or unless the child has been emancipated, from which a gift may be implied, appears to remain the property of the parent, who is entitled to recover for damage thereto or loss thereof.

And see:

5 Summ. Pa. Jur. 2d Family Law § 8:38 (2d ed.) | June 2020 Update

§ 8:38. Parent’s right to control of child’s property

A parent has no authority to sell and convey the interest of a minor child in real or personal property. Parents are also precluded from bargaining away the rights of their minor children.

But then you get cases like Kemp v. Kemp, 485 N.E.2d 663, 665 (Ind.Ct.App.1985):

Court necessarily grants to divorced parent some degree of control over child’s property in process of determining which parent acquires or retains custody of child upon dissolution of marriage.

Inherent in the concept of “child custody” is the right and obligation to care for, control, and maintain the child. It is a matter of common sense, then, that in the process of determining which parent acquires or retains custody of a child, a court necessarily grants to that parent some degree of control over the child’s property.

For example, no one would deny a “divorce” court’s jurisdiction when dissolving a marriage and disposing of marital property to order a husband to surrender to his former wife a motorcycle belonging to their sixteen-year-old child, now in the wife’s custody. An argument that the court in such a hypothetical has thereby “awarded property not owned by the parties” or “distributed assets in excess of the marital estate” misses the mark entirely. In fact, such a court has awarded nothing and distributed nothing. It has simply decided which parent should exercise the guidance and control over the minor’s life and property that inhere in the concept of parental custody.

Before and after the dissolution the motorcycle “belongs” to the child; the court has merely determined which party ultimately possesses what might be termed parental dominion over the property by virtue of having custody of its owner. Thus, even though the mother might subsequently deny her minor child the use of his motorcycle, her right to do so lies in her rights and duties as custodial parent, not in any rights of legal ownership. See McKinnon v. First National Bank of Pensacola (1919) 77 Fla. 777, 82 So. 748 (In McKinnon, the Florida Supreme Court noted that while a father had given money to his children as an absolute gift, he “did not intend for them to acquire extravagant habits by permitting them to use the money as they pleased before they were eighteen years old. This, as their natural guardian, he had the right to do, and if the gifts had been made by a third person he could have controlled his children in its expenditure until they reached an age when he considered it was advisable for them to use it as they saw fit.” 82 So. at 749, 750 (emphasis supplied)).

. . . and like State v. Udell (Court of Appeals of Kansas, July 22, 2005 34 Kan.App.2d 163, 115 P.3d 176):

a parent/child relationship gives rise to a presumption of control of property. Rith, 164 F.3d at 1330. The Rith court noted evidence which would tend to rebut that presumption included the child’s payment of rent, a lock on the bedroom door, or an implicit or explicit agreement the parents never enter a particular area. 164 F.3d at 1331.

. . . and like L. A. M. v. State (Supreme Court of Alaska. March 15, 1976, 547 P.2d 827)

While there is much discussion of parental rights in reported cases, few cases attempt to define those rights making discussion difficult. A careful review of the literature, including case law, treatise and law review, indicates that the following have been listed as ‘parental rights’ protected to varying degrees by the Constitution:

*****

(4) The right to control and manage a minor child’s property.*

*I can’t find any U.S. Supreme Court or other case law supporting this claim.

But then there are cases such as In re Casey (December 4, 2008, Not Reported in Cal.Rptr.3d2008 WL 51229895 Cal. State Bar Ct. Rptr. 1172008 Daily Journal D.A.R. 17,952)

(Emery v. Emery (1955) 45 cal.2d 421, 432 [minor child’s property is his or her own, and not that of child’s parents]; see also Fam.Code, § 7502 [parent has “no control over the property of [a] child”]; In re Tetsubumi Yano’s Estate (1922) 188 Cal. 645, 649 [minority does not incapacitate a person from taking and holding real estate].)

Black’s Law Dictionary ((11th ed. 2019), under the definition of “parental rights”) has this, but then gives no citations to the Constitution or statutes or case law:

parental rights (18c) A parent’s rights to make all decisions concerning his or her child, including the right to determine the child’s care and custody, the right to educate and discipline the child, and the right to control the child’s earnings and property.

Before researching this question, I thought the answer was obvious. It’s not.

See 61 A.L.R.2d 1270 (Originally published in 1958):

§ 1. Generally [Cumulative Supplement]

Although a parent, either as natural guardian or otherwise, has no title to the property of his minor child, nor any custody or control over it, and may make a gift inter vivos to such child which, when fully executed, is irrevocable, property furnished by a parent to his child for the purpose of support and maintenance, or education, unless in some definite way given to the child as his own property, or unless the child has been emancipated, from which a gift may be implied, appears to remain the property of the parent, who is entitled to recover for damage thereto or loss thereof.

Utah Family Law, LC | divorceutah.com | 801-466-9277

Tags: , , , , , , , , , , , , , ,
Click to listen highlighted text!