Parental Authority

PATRIA POTESTÀ. –

I. CONCEPT AND GENERAL REMARKS

The legal institution of p. p. may be defined as the complex of rights and duties that the law attributes to parents over the persons and property of their children until the children reach the age of majority or attain emancipation. This complex of powers and duties is based on natural law and, more precisely, on the blood tie linking the child to the father, from whom the child has received life; it extends to the persons of the children and to the property of which they are holders (v. GENITORI). Positive law determines more particularly the limits of these powers, regulates their specific exercise, and provides sanctions for the corresponding duties, especially in the interest of the child, who is the weaker party in the relationship.

Following the transformation of the family and the evolution of customs and social needs, the ethical and legal conception of p. p. underwent a profound evolution even in Roman law, on which the Latin legislations depend and which also exerted its influence on those of the Anglo-Saxon world.

It thus passed from being a means directed toward protecting the interest of the group rather than that of the person subject to it, to a concept—in Justinian law—close to the modern one (v. FAMIGLIA, III, 1). In modern legal systems, most of which are informed by the principles of Christianity, p. p. appears as a power established in the interest of the person subject to it, not in the interest of the person exercising II. It therefore does not suppress legal capacity, but substitutes its exercise; moreover, it ceases when, generally upon the attainment of majority, it is presumed that the child no longer needs protection.

P. p. is conferred by law not so much to grant rights as to impose duties; this is demonstrated by the fact that not only violation of the duty, but also abuse or improper use of the powers inherent in p. p., often results in deprivation thereof: p. p. is lost if it is improperly exercised, but is not extinguished by prescription, voluntary renunciation, or settlement, since it is a natural right.

II. IN CANON LAW

Canon law, having sanctioned the obligations of natural law incumbent upon parents toward their offspring (can. 1113), establishes no rule concerning the exercise of parental authority in patrimonial matters, recognizing the civil laws of the respective nations, provided that they respect divine natural and positive law and the rights of the Church, when baptized persons are concerned. It does, however, lay down certain particular rules concerning spiritual rights or rights connected with them. Thus, when spiritual or related cases are involved, it recognizes the capacity of a minor who has the use of reason to act either personally (if he has completed fourteen years of age), or through a guardian appointed by the Ordinary, or through a procurator chosen with the authorization of the Ordinary (can. 1680 § 3). It likewise grants pubescent children exemption from parental authority with regard to the choice of the funeral church or place of burial. Although it indirectly exhorts children not to contract marriage without their parents’ consent, it does not make such consent an indispensable condition for permitting their marriage, especially when the relatives’ opposition is based on irrational motives (can. 1034).

III. IN ITALIAN LAW

Although parental authority belongs to both parents, in order to avoid difficulties that might arise especially in the event of disagreement, its exercise is assigned by law to the father as head of the family (art. 316). The exercise of parental authority passes by right to the mother after the father’s death, in the event of his absence, or whenever anything prevents him from exercising it; also when he has been deprived of it by the tribunal for abuse or misuse of parental authority, or by interdiction following a criminal conviction, etc. (arts. 316–17, 331).

Parental authority comprises powers concerning the person and property of the children, to which particular duties on their part correspond (art. 315). The child owes obedience to the parent in everything that the latter may command; in particular, the child must not leave the parent’s home or the home that the parent has designated as the child’s residence (art. 318). The duty of obedience is limited to the duration of parental authority; once it has ceased, the child acquires his or her own, more or less complete, independence. The duty to honor one’s parents, however, does not cease; this is a duty owed regardless of age (by natural and positive divine law), and must not be confused with the duty of obedience mentioned above.

As regards care for the child’s person, these powers of the person exercising parental authority entail considerable disciplinary power; parental authority is intended to safeguard good morals by educating the minor, disciplining and directing the natural inclinations of those who have not yet attained adequate maturity. To safeguard the effectiveness of the powers inherent in parental authority, the State provides assistance to the person exercising it through the judicial authorities (Juvenile Tribunal).

As regards the property and interests of minors, parental authority entails the parent’s representation of the minor in all civil acts, administration of the property (art. 320), and legal usufruct over it (art. 324). There are, however, acts in which a minor who has reached a certain age is not represented by the parent, for example, marriage and a will (arts. 84, 90, 239).

With regard to the administration of the estate, the parent may perform all acts of ordinary administration; for those exceeding ordinary administration, authorization by the guardianship judge is sufficient, but continuation of the operation of a commercial enterprise in the interest of a minor requires authorization from the tribunal. If the said authorizations are lacking, acts performed by the parent on behalf of the minor child are voidable (arts. 320–22).

Excluded from the aforementioned legal usufruct over the property of minor children is property acquired by the child through his or her own work, or left to the child so that he or she might pursue a career, or subject to the condition that it be exempt from usufruct, or received by the child against the parent’s will or because of the parent’s unworthiness (arts. 324–26). The purpose of this usufruct is to facilitate the parent’s performance of the duties arising from parental authority; accordingly, the revenues are earmarked for the expenses of the minor child’s instruction and education (art. 325).

Parental authority, with all its powers, ceases when the child reaches the age of majority (21 years) or upon the child’s emancipation. Emancipation occurs when the minor (of any age) contracts marriage (art. 190, emancipation by operation of law), or by order of the guardianship judge, upon the application of the parent exercising parental authority or of the guardian, or of the minor himself or herself, but only after the minor has reached eighteen years of age. An emancipated minor is assigned a curator by the guardianship judge (v. CURATELA).

The current Civil Code, unlike its predecessor, has clearly attributed parental authority also to the natural parent, but not legal usufruct. It should be added that parental authority also belongs to the adopter over the adopted child and to the affiancer over the minor affiliate, always excluding the right of legal usufruct (arts. 301, 409).

IV. MORAL PRINCIPLES

These provisions of civil law do not in themselves seem contrary to natural law; indeed, in some respects they seem to give more precise determinations to natural law, which remains more general. As a person, the minor child too is capable of possessing patrimonial rights, but the father will have the right and duty ex pietate to administer them in the children’s interest if, because they are minors or otherwise legally incapable of acting, they are subject to him. The father who administers his child’s property may in conscience appropriate the fruits to the extent equivalent to the expenses he incurs for the children’s maintenance, education, etc. He may do so all the more because the child is also obliged to assist parents who may be in need, when he can do so without serious harm to himself. Since so intimate a bond exists between father and child, even in patrimonial matters one cannot invoke only the principles of justice; one must also take into account the bonds of filial piety, the virtue that precisely governs relations between persons connected by ties of blood. Naturally, the father will be less opposed to having something taken from his property by his child than by a stranger; likewise, the child will assert his rights over his property less forcefully against his father than against strangers. In other words, between the two, condonation can more readily be presumed, and consequently the offenses of theft and the obligations of restitution are attenuated. Finally, the relationship itself influences the determination of grave matter in 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.