PARENTAL AUTHORITY. - I. NOTION AND GENERAL OUTLINE. - The legal institution of patria potestas may be defined as the complex of rights and duties that the law attributes to parents over the persons and the property of their children until the latter reach majority or obtain emancipation. This complex of powers-duties is based on natural law and precisely on the blood tie that binds the child to the father, from whom it has received life, and it extends to the persons of the children and to the patrimony of which they are the holders (v. GENITORI). Positive law determines more particularly the limits of these powers, regulates their specific use, and provides sanctions for the corresponding duties, above all in the interest of the child, who is the weaker party of the two terms of the relationship.
Following the transformation of the family and the evolution of customs and social needs, the ethical-legal conception of patria potestas underwent a profound evolution within Roman law itself, on which the Latin legal systems depend and which has exercised its influence also on those of the Anglo-Saxon world.
It passed, in fact, from being a means directed at protecting the interest of the group rather than that of the person subject to it, to a concept - in Justinianic law - close to the modern one (v. FAMIGLIA, III, 1). In modern legal systems, most of them informed by the principles of Christianity, patria potestas presents itself as a power established in the interest of the one who is subject to it, not in the interest of the one who exercises it. Therefore it does not suppress legal capacity, but substitutes for its exercise; moreover, it ceases when, generally at majority, the child is presumed no longer to need protection.
Patria potestas is conferred by law not so much to attribute rights as to impose duties; this is shown by the fact that not only the violation of duty, but also the abuse or misuse of the faculties inherent in patria potestas often leads to deprivation of it: patria potestas is lost if it is exercised badly, but it is not extinguished by prescription, by voluntary renunciation, or by settlement, since it is a matter of a natural right.
II. IN CANON LAW
Canon law, having established the obligations of natural law that weigh upon parents with regard to their offspring (can. 1113), lays down no norm concerning the exercise of patria potestas in patrimonial matters, recognizing the civil laws of the respective nations, provided they respect divine natural and positive law and the rights of the Church, when it is a question of the baptized. It does, however, give certain particular norms in matters of spiritual rights or rights connected with them. Thus, when it is a question of spiritual causes or causes connected with them, it recognizes in the minor who has the use of reason the capacity to act either for himself (if he has completed 14 years) or through the guardian appointed by the Ordinary, or else through a procurator chosen with the authorization of the Ordinary (can. 1680 § 3). It likewise recognizes in children who have reached puberty exemption from patria potestas with regard to the choice of a funeral church or place of burial. Although it indirectly exhorts children not to contract marriage without the consent of their parents, it does not make this an indispensable condition for permitting their marriage, especially when the opposition of the relatives is based on irrational motives (can. 1034).
III. IN ITALIAN LAW
Although the title to p. p. [patria potestas] belongs to both parents, in order to avoid inconveniences that could arise especially in the case of disagreement, the exercise of it is attributed by law to the father as head of the family (art. 316). The exercise of p. p. passes by law to the mother after the death of the father, in the case of his absence or when something prevents him from exercising it, in the case of his forfeiture pronounced by the court for abuse or misuse of p. p., for interdiction following a criminal conviction, etc. (arts. 316-17, 331).
P. p. comprises powers inherent in the person and in the property of the children, to which particular duties of the latter correspond (art. 315). The child owes obedience to the parent in all that the latter may command him; in particular he must not abandon his home or the one that the parent has designated for him as a dwelling (art. 318). The duty of obedience is limited to the duration of p. p. itself; once this has ceased, the child acquires his own independence, more or less complete. The duty of honoring one's parents does not, however, cease; a duty to which he is bound whatever his age (by natural and positive divine law), and which must not be confused with the duty of obedience set out above.
With regard to the care of the child's person, these powers of the one exercising p. p. entail a considerable disciplinary power; p. p. has the purpose of safeguarding good morals, educating the minor, disciplining and directing the natural inclinations of those who have not yet reached adequate maturity. In order to safeguard the effectiveness of the powers inherent in p. p., the State lends its aid to the one who exercises it by means of the judicial authority (Juvenile Court).
As regards the property and interests of minors, p. p. entails in the parent who exercises it the representation of the minor in all civil acts, the administration of the property (art. 320) and the legal usufruct over the same (art. 324). There are, however, acts in which the minor, who has reached a certain age, is not represented by the parent, e.g., marriage and wills (art. 84, 90, 239).
Concerning the administration of the patrimony, the parent may carry out all acts of ordinary administration; for those exceeding ordinary administration the authorization of the guardianship judge is sufficient, but for the continuation of the operation of a commercial enterprise in the interest of a minor, the authorization of the court is required. If the said authorizations are lacking, the acts carried out by the parent for the minor child are voidable (art. 320-22).
From the aforementioned legal usufruct over the property of minor children are excepted those acquired by the child through his own work or left to him so that he may undertake a career or under the condition of exemption from the usufruct or those that have come to him against the will of the parent or because of the latter's unworthiness (art. 324-26). The purpose of the said usufruct is to facilitate for the parent the fulfillment of the duties arising from p. p.; therefore the income is bound to the expenses for the instruction and education of the minor child to whom it must be destined (art. 325).
P. p., with all its powers, ceases upon the child's reaching majority (21 years) or upon his emancipation. This occurs when the minor (of any age) contracts marriage (art. 190, emancipation by law) or by order of the guardianship judge, on the application of the parent exercising p. p. or of the guardian, or of the minor himself, always, however, after the latter has completed eighteen years. To the emancipated minor a curator is appointed by the guardianship judge (v. CURATELA).
The current Civil Code has clearly attributed, unlike the previous one, p. p. also to the natural parent, but not the legal usufruct. It should be added that p. p. also belongs to the adopter over the adopted minor and to the foster parent over the fostered minor, always with the exclusion of the right to legal usufruct (art. 301, 409).
IV. MORAL PRINCIPLES
These provisions of civil law do not in themselves appear contrary to natural law; indeed in some points they seem to add determinations to natural law, which remains more generic. As persons, the minor child too is capable of patrimonial rights, but the father will have the right and the duty ex pietate to administer them in the interest of the children, if these, because they are minors or otherwise incapable of acting juridically, are subject to him. The father who administers the child's property may in conscience take the fruits to the extent that they equal the expenses he incurs for the sustenance, education of the children, etc. He may do so all the more since the child also has the obligation to provide for the possible indigence of his parents, when he can do so without serious harm to himself. Since there exists between father and child such an intimate bond, even in patrimonial matters one cannot invoke only the principles of justice, but must also keep in mind the bonds of piety, the virtue that regulates precisely the relations between persons who have ties of blood between them. Naturally the father will be less opposed to something of his patrimony being taken from him by his child than by a stranger; and likewise the child will less forcefully claim rights over his patrimony against his father than against strangers. In other words, between the two a remission can more easily be presumed, and therefore the offenses of theft and the obligations of restitution are attenuated. Finally, the relationship itself affects the determination of grave matter in the relations between children and parents, which, in the relationship in question, is to be reckoned as twice as great as grave matter in relations with strangers.
Bibliography4 works
Francesco Ercolani