Florida statute that allows a parent to release a minor’s right to sue

Posted: February 17, 2012 | Author: Recreation Law | Filed under: Florida, Minors, Youth, Children | Tags: Child, Children Youth and Family, Family, Florida law, Legal guardian, Minor, Minor (law), parent, Parental Rights, Release | Leave a comment

TITLE 43.  DOMESTIC RELATIONS (Chs. 741-753)

CHAPTER 744.  GUARDIANSHIP

PART III.  TYPES OF GUARDIANSHIP

GO TO FLORIDA STATUTES ARCHIVE DIRECTORY

Fla. Stat. § 744.301 (2012)

§ 744.301.  Natural guardians

   (1) The mother and father jointly are natural guardians of their own children and of their adopted children, during minority. If one parent dies, the surviving parent remains the sole natural guardian even if he or she remarries. If the marriage between the parents is dissolved, the natural guardianship belongs to the parent to whom custody of the child is awarded. If the parents are given joint custody, then both continue as natural guardians. If the marriage is dissolved and neither the father nor the mother is given custody of the child, neither shall act as natural guardian of the child. The mother of a child born out of wedlock is the natural guardian of the child and is entitled to primary residential care and custody of the child unless a court of competent jurisdiction enters an order stating otherwise.

(2) Natural guardians are authorized, on behalf of any of their minor children, to:

   (a) Settle and consummate a settlement of any claim or cause of action accruing to any of their minor children for damages to the person or property of any of said minor children;

   (b) Collect, receive, manage, and dispose of the proceeds of any such settlement;

   (c) Collect, receive, manage, and dispose of any real or personal property distributed from an estate or trust;

   (d) Collect, receive, manage, and dispose of and make elections regarding the proceeds from a life insurance policy or annuity contract payable to, or otherwise accruing to the benefit of, the child; and

   (e) Collect, receive, manage, dispose of, and make elections regarding the proceeds of any benefit plan as defined by s. 710.102, of which the minor is a beneficiary, participant, or owner, without appointment, authority, or bond, when the amounts received, in the aggregate, do not exceed $ 15,000.

(3) In addition to the authority granted in subsection (2), natural guardians are authorized, on behalf of any of their minor children, to waive and release, in advance, any claim or cause of action against a commercial activity provider, or its owners, affiliates, employees, or agents, which would accrue to a minor child for personal injury, including death, and property damage resulting from an inherent risk in the activity.

   (a) As used in this subsection, the term “inherent risk” means those dangers or conditions, known or unknown, which are characteristic of, intrinsic to, or an integral part of the activity and which are not eliminated even if the activity provider acts with due care in a reasonably prudent manner. The term includes, but is not limited to:

      1. The failure by the activity provider to warn the natural guardian or minor child of an inherent risk; and

      2. The risk that the minor child or another participant in the activity may act in a negligent or intentional manner and contribute to the injury or death of the minor child. A participant does not include the activity provider or its owners, affiliates, employees, or agents.

   (b) To be enforceable, a waiver or release executed under this subsection must, at a minimum, include the following statement in uppercase type that is at least 5 points larger than, and clearly distinguishable from, the rest of the text of the waiver or release:

                 NOTICE TO THE MINOR CHILD‘S NATURAL GUARDIAN

            READ THIS FORM COMPLETELY AND CAREFULLY. YOU ARE

   AGREEING TO LET YOUR MINOR CHILD ENGAGE IN A

   POTENTIALLY DANGEROUS ACTIVITY. YOU ARE AGREEING THAT,

   EVEN IF ( name of released party or parties ) USES

   REASONABLE CARE IN PROVIDING THIS ACTIVITY, THERE IS A

   CHANCE YOUR CHILD MAY BE SERIOUSLY INJURED OR KILLED

   BY PARTICIPATING IN THIS ACTIVITY BECAUSE THERE ARE

   CERTAIN DANGERS INHERENT IN THE ACTIVITY WHICH CANNOT

   BE AVOIDED OR ELIMINATED. BY SIGNING THIS FORM YOU ARE

   GIVING UP YOUR CHILD’S RIGHT AND YOUR RIGHT TO RECOVER

   FROM ( name of released party or parties ) IN A

   LAWSUIT FOR ANY PERSONAL INJURY, INCLUDING DEATH, TO

   YOUR CHILD OR ANY PROPERTY DAMAGE THAT RESULTS FROM

   THE RISKS THAT ARE A NATURAL PART OF THE ACTIVITY. YOU

   HAVE THE RIGHT TO REFUSE TO SIGN THIS FORM, AND

   ( name of released party or parties ) HAS THE

   RIGHT TO REFUSE TO LET YOUR CHILD PARTICIPATE IF YOU

   DO NOT SIGN THIS FORM.

   (c) If a waiver or release complies with paragraph (b) and waives no more than allowed under this subsection, there is a rebuttable presumption that the waiver or release is valid and that any injury or damage to the minor child arose from the inherent risk involved in the activity.

      1. To rebut the presumption that the waiver or release is valid, a claimant must demonstrate by a preponderance of the evidence that the waiver or release does not comply with this subsection.

      2. To rebut the presumption that the injury or damage to the minor child arose from an inherent risk involved in the activity, a claimant must demonstrate by clear and convincing evidence that the conduct, condition, or other cause resulting in the injury or damage was not an inherent risk of the activity.

      3. If a presumption under this paragraph is rebutted, liability and compensatory damages must be established by a preponderance of the evidence.

   (d) Nothing in this subsection limits the ability of natural guardians, on behalf of any of their minor children, to waive and release, in advance, any claim or cause of action against a noncommercial activity provider, or its owners, affiliates, employees, or agents, to the extent authorized by common law.

(4) All instruments executed by a natural guardian for the benefit of the ward under the powers specified in this section are binding on the ward. The natural guardian may not, without a court order, use the property of the ward for the guardian’s benefit or to satisfy the guardian’s support obligation to the ward.

HISTORY:  S. 1, ch. 74-106; s. 8, ch. 75-166; s. 7, ch. 75-222; s. 1, ch. 77-190; s. 3, ch. 79-221; s. 17, ch. 89-96;  s. 22, ch. 92-200;  s. 66, ch. 95-211;  s. 73, ch. 97-170;  s. 11, ch. 2002-195;  s. 8, ch. 2005-101;  s. 3, ch. 2006-178, eff. July 1, 2006;  s. 2, ch. 2010-27, eff. Apr. 27, 2010.

NOTES:

AMENDMENTS

   The 2005 amendment by s. 8, ch. 2005-101, effective June 1, 2005, rewrote (2).

   The 2006 amendment by s. 3, ch. 2006-178, effective July 1, 2006, in (1), substituted “the surviving parent remains the sole natural guardian even if he or she” for “the natural guardianship shall pass to the surviving parent, and the right shall continue even though the surviving parent” in the second sentence and made minor stylistic changes; substituted “Natural” for “The natural guardian or” at the beginning of (2); substituted “amounts received, in the aggregate, do” for “amount involved in any instance does” in the last undesignated paragraph in (2); in (3), inserted “for the benefit of the ward” and substituted “specified” for “provided for” in the first sentence and added the last sentence; and deleted former (4).

   The 2010 amendment added (3); redesignated former (3) as (4); and substituted “this section are” for “subsection (2) shall be” in the first sentence of (4).

NOTE.–

   Created from former s. 744.13.

FLORIDA STATUTES REFERENCES

   Chapter 549. Automobile Race Meets, F.S. § 549.09. Motorsport nonspectator liability release.

   Chapter 739. Florida Uniform Disclaimer of Property Interests Act, F.S. § 739.104. Power to disclaim; general requirements; when irrevocable.

   Chapter 744. Guardianship, F.S. § 744.387. Settlement of claims.

FLORIDA ADMINISTRATIVE CODE REFERENCES

   Chapter 19-11 Procedures for the Public Employee Optional Retirement Program, F.A.C. 19-11.003 Distributions from Frs Investment Plan Accounts.

1. Judgment against a mother in her daughter’s claim against a boutique alleging negligent ear piercing was improper; an indemnification agreement signed by the mother violated public policy. Fla. Stat. § 744.301(3) did not include releasing the commercial activity provider from liability for its own negligence. Claire’s Boutiques, Inc. v. Locastro, 2011 Fla. App. LEXIS 6662 (Fla. 4th DCA May 11, 2011).

2. Despite a father’s claim that Georgia was the home state of his child born out of wedlock for purposes of custody under Fla. Stat. § 61.514 of the Uniform Child Custody Jurisdiction Act, a Florida circuit court had jurisdiction to enter an emergency child pick-up order ex-parte because: (1) the child’s mother was a Florida resident when the child was born, the child was born in Florida, and the mother, after living in Georgia for a time, returned to live in Florida; (2) the order simply enforced the mother’s presumptive rights under Fla. Stat. § 744.301(1) until a court determined otherwise and was not a determination as to the father’s ultimate custody rights; and (3) the emergency order was not inconsistent with O.C.G.A. § 19-2-4(a), O.C.G.A. § 19-7-22(a) and (c), and O.C.G.A. § 19-7-25. Perez v. Giledes, 912 So. 2d 32, 2005 Fla. App. LEXIS 13310 (Fla. 4th DCA 2005).

3. When a parent is awarded custody of a child following a dissolution of marriage to the other parent, Fla. Stat. § 744.301(1) does not automatically extinguish the rights of a noncustodial parent as natural guardian of his child; guardianship is dependent on the custody of the child and if the custodial parent dies, the natural guardianship passes to the surviving parent. Lusker v. Guardianship of Lusker, 434 So. 2d 951, 1983 Fla. App. LEXIS 19487 (Fla. 2nd DCA 1983).

4. Trial court properly dismissed the information charging defendant with interference with custody in violation of Fla. Stat. § 787.03 where an order from another state had relinquished custody of the children to defendant and the mother. Furthermore, the court reversed the trial court’s declaration that Fla. Stat. § 744.301(1) was unconstitutional because resolution of the case did not require such a declaration. State v. Earl, 649 So. 2d 297, 1995 Fla. App. LEXIS 307 (Fla. 5th DCA 1995).

5. Pursuant to Fla. Stat. § 744.301(1) a mother, the non-custodial parent, had a right to custody of her child upon the death of the father, the custodial parent, where the father obtained custody of the 10 month old child when the parents divorced, the father moved with his child and new wife to another county three years after the divorce and actively thwarted the mother’s attempts to visit her child so that the mother was unable to see her child for seven years, and the father’s widow, who sought custody of the child upon the father’s death, was unable to prove by clear and convincing evidence that the mother was unfit. Webb v. Webb, 546 So. 2d 1062, 1989 Fla. App. LEXIS 2951 (Fla. 3rd DCA 1989), review denied by 553 So. 2d 1168, 1989 Fla. LEXIS 1234 (Fla. 1989).

6. Mere fact that a father had enforceable rights and obligations to his child born out of wedlock by virtue of his acknowledgement of paternity did not equate to his having a right to temporary custody superior to the mother’s prior to a court declaration to that effect. Perez v. Giledes, 912 So. 2d 32, 2005 Fla. App. LEXIS 13310 (Fla. 4th DCA 2005).

7. Trial court properly dismissed the information charging defendant with interference with custody in violation of Fla. Stat. § 787.03 where an order from another state had relinquished custody of the children to defendant and the mother. Furthermore, the court reversed the trial court’s declaration that Fla. Stat. § 744.301(1) was unconstitutional because resolution of the case did not require such a declaration. State v. Earl, 649 So. 2d 297, 1995 Fla. App. LEXIS 307 (Fla. 5th DCA 1995).

8. When a parent is awarded custody of a child following a dissolution of marriage to the other parent, Fla. Stat. § 744.301(1) does not automatically extinguish the rights of a noncustodial parent as natural guardian of his child; guardianship is dependent on the custody of the child and if the custodial parent dies, the natural guardianship passes to the surviving parent. Lusker v. Guardianship of Lusker, 434 So. 2d 951, 1983 Fla. App. LEXIS 19487 (Fla. 2nd DCA 1983).

9. Trial court properly dismissed the information charging defendant with interference with custody in violation of Fla. Stat. § 787.03 where an order from another state had relinquished custody of the children to defendant and the mother. Furthermore, the court reversed the trial court’s declaration that Fla. Stat. § 744.301(1) was unconstitutional because resolution of the case did not require such a declaration. State v. Earl, 649 So. 2d 297, 1995 Fla. App. LEXIS 307 (Fla. 5th DCA 1995).

10. Where child’s father had executed agreement to pay for child’s required medical care, the hospital was not foreclosed from seeking recovery against the mother under an implied in law contract predicated upon her duty to support her child under Fla. Stat. § 744.301. Variety Children’s Hospital, Inc. v. Vigliotti, 385 So. 2d 1052, 1980 Fla. App. LEXIS 17190 (Fla. 3rd DCA 1980).

11. Admitted father of premature infant girl was a natural guardian of the infant under Fla. Stat. § 744.301(1), despite infant’s illegitimate status; therefore, unwed father was responsible for infant’s necessary emergency medical services. De Costa v. North Broward Hosp. Dist., 497 So. 2d 1282, 1986 Fla. App. LEXIS 10561 (Fla. 4th DCA 1986).

12. Fla. Stat. § 744.301(1) provides that the mother of a child born out of wedlock is the natural guardian of the child and is entitled to primary residential care and custody of the child unless a court of competent jurisdiction entered an order stating otherwise. Muniz v. State, 764 So. 2d 729, 2000 Fla. App. LEXIS 8142 (Fla. 2nd DCA 2000).

13. Judgment against a mother in her daughter’s claim against a boutique alleging negligent ear piercing was improper; an indemnification agreement signed by the mother violated public policy. Fla. Stat. § 744.301(3) did not include releasing the commercial activity provider from liability for its own negligence. Claire’s Boutiques, Inc. v. Locastro, 2011 Fla. App. LEXIS 6662 (Fla. 4th DCA May 11, 2011).

1. Florida Civil Procedure, Chapter 9. Amended and Supplementary Pleadings; Pretrial Procedure, § 9-3. Settlements.

2. Florida Estates Practice Guide, Chapter 18 Beneficiaries’ Rights, Part I. Legal Background, § 18.11 Disclaimer of Interest in Property.

3. Florida Estates Practice Guide, Chapter 26 Guardians, Part I. Legal Background, § 26.04 Natural Guardians.

4. Florida Estates Practice Guide, Chapter 26 Guardians, Part I. Legal Background, § 26.43 Litigation Involving Ward.

5. Florida Estates Practice Guide, Chapter 36 Right to Property of an Intestate, Part III. Forms, § 36.204 Petition for Authorization to Execute Qualified Disclaimer.

6. Florida Estates Practice Guide, Appendix PRG Florida Probate and Guardianship Rules, Part I General, Rule 5.040. Notice.

7. Florida Family Law, Division I Marriage, Chapter 3 Cohabitation, B. Rights and Obligations of Cohabitating Partners and their Children, § 3.11 Rights and Obligations Concerning Children.

8. Florida Family Law, Division IV Dissolution of Marriage, Chapter 32 Parental Responsibility and Timesharing, Part I. Legal Background, C. Basis for Determinations of Parental Responsibility and Timesharing, § 32.20 Parents’ Rights and Duties.

9. Florida Family Law, Division IV Dissolution of Marriage, Chapter 32 Parental Responsibility and Timesharing, Part I. Legal Background, D. Effect of Shared Parental Responsibility and Timesharing Determinations, § 32.30 Rights and Duties of Parents.

10. Florida Family Law, Division IV Dissolution of Marriage, Chapter 32 Parental Responsibility and Timesharing, Part II. Practice Guide, B. Preliminary Determinations, § 32.111 Action for Shared Parental Responsibility.

11. Florida Family Law, Division IV Dissolution of Marriage, Chapter 33 Child Support, Part I. Legal Background, § 33.01 Parents’ Duty to Support Child.

12. Florida Family Law, Division IV Dissolution of Marriage, Chapter 33 Child Support, Part II. Practice Guide, B. Preliminary Determinations, § 33.110 Duty to Support Child.

13. Florida Family Law, Division IV Dissolution of Marriage, Chapter 33 Child Support, Part II. Practice Guide, B. Preliminary Determinations, § 33.116 Child Support Order in Paternity Action.

14. Florida Family Law, Division IV Dissolution of Marriage, Chapter 82 Modification of Child Support, Part I. Legal Background, § 82.03 Practice and Procedure.

15. Florida Family Law, Division V Parent-Child Relationships, Chapter 90 Paternity, Part I. Legal Background, A. Paternity and the Parent-Child Relationship, § 90.03 Interests and Status of Natural Father.

16. Florida Family Law, Division V Parent-Child Relationships, Chapter 90 Paternity, Part I. Legal Background, A. Paternity and the Parent-Child Relationship, § 90.06 Father’s Rights to Parental Responsibility and Timesharing.

17. Florida Family Law, Division V Parent-Child Relationships, Chapter 90 Paternity, Part I. Legal Background, B. Establishing Paternity in Paternity Proceeding, § 90.20 Overview of Paternity Proceeding.

18. Florida Family Law, Division V Parent-Child Relationships, Chapter 92 Nonparental Custody, B. Proceedings Involving Nonparental Custody, § 92.10 Type of Proceedings.

19. Florida Family Law, Division VI Other Procedures, Chapter 101 Disabilities of Minority, A. Disabilities of Minority, § 101.03 Other Aspects of Disabilities of Minority.

20. Florida Probate Code Manual, Chapter 1 Intestate Succession, § 1.12 Disclaimer.

21. Florida Probate Code Manual, Chapter 5 Rights of the Decedent’s Children, § 5.13 Disclaimer.

22. Florida Probate Code Manual, Chapter 19 Appointment and Removal of Guardians, § 19.03 Natural Guardians.

23. Florida Probate Code Manual, Chapter 19 Appointment and Removal of Guardians, § 19.09 Guardians Ad Litem.

24. Florida Probate Code Manual, Chapter 20 The Guardian as a Fiduciary, § 20.02 Powers of Natural Guardian.

25. Florida Probate Code Manual, Chapter 20 The Guardian as a Fiduciary, § 20.04 Powers and Duties of Guardian Ad Litem.

26. Florida Probate Code Manual, Chapter 20 The Guardian as a Fiduciary, § 20.11 Bringing and Defending Actions; Settling Claims.

27. Florida Probate Code Manual, Florida Probate Rules, Scope.

28. Florida Real Estate Transactions, Part II. The Deed, Chapter 10. Parties to the Deed, § 10.03 Deeds by Minors.

29. Florida Torts, VIII. Sources of Compensation, Chapter 141 Settlement and Release, I. Legal Background, A. Settlement, 1. Settlement Procedures and Techniques, § 141.06 Statutes Affecting Settlements.

30. Florida Torts, VIII. Sources of Compensation, Chapter 141 Settlement and Release, I. Legal Background, B. Releases, § 141.53 Enforcement and Avoidance.

31. Florida Torts, VIII. Sources of Compensation, Chapter 141 Settlement and Release, I. Legal Background, B. Releases, § 141.54 Release by Natural Guardian for Minor Participating in Activities with Inherent Risks.

32. LexisNexis Practice Guide: Florida Civil Motion Practice, Chapter 13 Settlement, IV. Entering Into a Settlement Agreement, § 13.19 Authority of Third Persons to Enter Settlement Agreements.

33. LexisNexis Practice Guide: Florida Estate & Probate Practice, Chapter 10 Wills: Administrative Provisions, II. Appointing Fiduciaries, § 10.06 Appoint a Guardian.

34. LexisNexis Practice Guide: Florida Personal Injury, What’s New, Scope.

35. LexisNexis Practice Guide: Florida Personal Injury, Chapter 9 General Liability, I. Overview, § 9.02 Master Checklist.

36. LexisNexis Practice Guide: Florida Personal Injury, Chapter 9 General Liability, VI. Determine Express Assumption of Risk, § 9.36 Checklist.

37. LexisNexis Practice Guide: Florida Personal Injury, Chapter 9 General Liability, VI. Determine Express Assumption of Risk, § 9.38 Determine Whether Parent Executed Enforceable Pre-Injury Release.

38. LexisNexis Practice Guide: Florida Personal Injury, Chapter 9 General Liability, VI. Determine Express Assumption of Risk, § 9.38B Establish Immunity for Motorsport Activities.

39. LexisNexis Practice Guide: Florida Pretrial Civil Procedure, Chapter 4 Parties, III. Party Must Have Standing in Action, § 4.08 Standing Generally Requires Party’s Interest in Action.

40. Planning for the Elderly in Florida, Chapter 17 Guardianship, § 17.06 Types of Guardianships.

41. Southeast Transaction Guide, Unit II. Estate Planning, Division 1. Estate Planning and Wills, § 85.03 Legal Background.

42. Southeast Transaction Guide, Unit II. Estate Planning, Division 1. Estate Planning and Wills, § 85.04 Preliminary Determinations.

43. Southeast Transaction Guide, Unit V. Personal Transactions, Division 2. Family Affairs, § 340.02 Research Guide.

44. Southeast Transaction Guide, Unit V. Personal Transactions, Division 2. Family Affairs, § 340.03 Legal Background.

45. Southeast Transaction Guide, Unit V. Personal Transactions, Division 2. Family Affairs, § 341.02 Research Guide.

46. Southeast Transaction Guide, Unit V. Personal Transactions, Division 2. Family Affairs, § 362.22 Right to Custody of Minor Children.

1. Case Comment: Constitutional Law: The Limits of a Patient’s Right to Refuse Medical Treatment, Troy Rillo, April 1994, 46 Fla. L. Rev. 347.

2. Comments: Lagging Behind The Times: Parenthood, Custody, and Gender Bias in the Family Court, Cynthia A. Mcneely, Summer 1998, 25 Fla. St. U.L. Rev. 891.

3. A Cry For Help: An Argument For Abrogation Of the Parent-Child Tort Immunity Doctrine in Child Abuse and Incest Casesa Cry For Help: An Argument For Abrogation Of the Parent-Child Tort Immunity Doctrine in Child Abuse and Incest Cases, Caroline E. Johnson, Fall 1993, 21 Fla. St. U.L. Rev. 617.

4. The Minefield of Liability for Minors: Running Afoul Of Corporate Risk Management in Florida, Jordan A. Dresnick, April 2010, 64 U. Miami L. Rev. 1031.

5. The Minefield of Liability for Minors: Running Afoul of Corporate Risk Management in Florida, Jordan A. Dresnick, April 2010, 64 U. Miami L. Rev. 1031.

6. Quasi-Marital Children: The Common Law’s Failure in Privette and Daniel Calls For Statutory Reform, The Honorable Chris W. Altenbernd, Winter 1999, 26 Fla. St. U.L. Rev. 219.

7. Student Work: Redefining Parenthood: Removing Nostalgia From Third-Party Child Custody and Visitation Decisions in Florida, Sarah E. Kay, Fall 2009, 39 Stetson L. Rev. 317.

8. The Validity of Binding Arbitration Agreements and Children’s Personal Injury Claims in Florida After Shea v. Global Travel Marketing, Inc., Douglas P. Gerber, Fall 2003, 28 Nova L. Rev. 167.

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