Parental control: should you, are you accepting responsibility for kids and when you should or can you not.

Once you accept responsibility, you are opening yourself up for any problem the minor may encounter.

This scenario came to me, and my reaction was the exact opposite of the person telling me about it.

Child is enrolled in a program. One parent enrolled the child. The other parent is making rules for how the child will act and what the child will wear (safety gear) while attending the program.

It is a community program, not away from home; it is something you drop your child off should participate in.

The one parent sends a letter to the program stating they expect the program to make sure the child wears the specific equipment. It is optional for all other participants to wear the specific equipment.

How the program responds will determine who is going to pay the child’s medical bills. Basically, the parent created a standard that if accepted by the program creates a duty upon the program.

My response.

I would have sent a letter to both parents that states:

It is your kid; we are not a babysitting service. If you want to make sure your child wears the gear, then you need to be here making sure your child is wearing the gear. You are allowed, in fact, encouraged to attend all practices, programs and meetings. If your child is here, you better be here too.

The other person’s response.

They’d better made sure the kid wears the gear.

The legal issue and concern?

The program is run by volunteers. One parent is saying to volunteers if you do not do what I say I am going to sue you if my child is hurt. The program has hundreds of kids, seriously hundreds of kids some nights, and a few volunteers, (when were there ever enough volunteers.)

The parent is making a duty that the program can either accept or not accept and if they do nothing they are accepting the standard created by the program. “I am not responsible for your child.”

Will this create a duty on the part of every other child in the program?

We are not legally responsible for your child; you are. (See A Parent (or Guardian) is still in control of a child, no matter what the volunteer may want, http://rec-law.us/zN0jcl). The program has no responsibility if the parent is present. Why accept the possibility that you cannot control a teenager and therefore, will get sued because of it?

Why Volunteer and Put Up with Crap like This!

What type of parent are you that you can’t take the time to spend time with your child but threaten litigation if your child gets hurt. “Here you take your time to take care of my kid and I’m going to sue you over it.”

Actually, I just would have thrown the kid out of the program. No program, run by volunteers for other people’s kids need this.

Kid programs are not where parents drop off kids and go on with their lives. Kid programs are where families work to help the community, and the kid to grow, learn and expand their horizons. Kids programs are not so parents get a break from their kids. Youth programs are for youth and that does not mean that those adults who take time away from their family should be subject to suit by parents who won’t take the time.

If you volunteer your time and someone who does not volunteer puts a burden on you to watch their kid how would you feel?

If you are volunteering your time, and some parent comes to you and says you have to do things this way, hand them the clipboard and whistle and walk away. It is not worth it.

Other articles about the legal issues of Volunteers:

Adult volunteer responsibility ends when the minor is delivered back to his parents.                               http://rec-law.us/yVBckK

A Parent (or Guardian) is still in control of a child, no matter what the volunteer may want.                                        http://rec-law.us/zN0jcl

Adult volunteer responsibility ends when the minor is delivered back to his parents.                                                        http://rec-law.us/wynrnO

 

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C.R.S. §§13-22-107. Legislative declaration – definitions – children – waiver by parent of prospective negligence claims

C.R.S. §§13-22-107. Legislative declaration – definitions – children – waiver by parent of prospective negligence claims

(1) (a) The general assembly hereby finds, determines, and declares it is the public policy of this state that:

(I) Children of this state should have the maximum opportunity to participate in sporting, recreational, educational, and other activities where certain risks may exist;

(II) Public, private, and non-profit entities providing these essential activities to children in Colorado need a measure of protection against lawsuits, and without the measure of protection these entities may be unwilling or unable to provide the activities;

(III) Parents have a fundamental right and responsibility to make decisions concerning the care, custody, and control of their children. The law has long presumed that parents act in the best interest of their children.

(IV) Parents make conscious choices every day on behalf of their children concerning the risks and benefits of participation in activities that may involve risk;

(V) These are proper parental choices on behalf of children that should not be ignored. So long as the decision is voluntary and informed, the decision should be given the same dignity as decisions regarding schooling, medical treatment, and religious education; and

(VI) It is the intent of the general assembly to encourage the affordability and availability of youth activities in this state by permitting a parent of a child to release a prospective negligence claim of the child against certain persons and entities involved in providing the opportunity to participate in the activities.

(b) The general assembly further declares that the Colorado supreme court’s holding in case number 00SC885, 48 P.3d 1229 (Colo. 2002), has not been adopted by the general assembly and does not reflect the intent of the general assembly or the public policy of this state.

(2) As used in this section, unless the context otherwise requires:

(a) “Child” means a person under eighteen years of age.

(b) For purposes of this section only, “parent” means a parent, as defined in section 19-1-103 (82), C.R.S., a person who has guardianship of the person, as defined in section 19-1-103 (60), C.R.S., a person who has legal custody, as defined in section 19-1-103 (73), C.R.S., a legal representative, as defined in section 19-1-103 (73.5), C.R.S., a physical custodian, as defined in section 19-1-103 (84), C.R.S., or a responsible person, as defined in section 19-1-103 (94), C.R.S.

(3) A parent of a child may, on behalf of the child, release or waive the child’s prospective claim for negligence.

(4) Nothing in this section shall be construed to permit a parent acting on behalf of his or her child to waive the child’s prospective claim against a person or entity for a willful and wanton act or omission, a reckless act or omission, or a grossly negligent act or omission.

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

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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Statutes and prospective language to allow a parent to sign away a minor’s right to sue.

Now is the time to move a statute like this forward in your state.

Three states allow a parent to sign away a child’s right to sue by statute: Alaska, Florida and Colorado. Five (maybe 6) states allow a parent to sign away a minor’s right to sue by Supreme Court Decision. See States that allow a parent to sign away a minor’s right to sue. With more legislatures leaning to the conservative side, now is the time to introduce and get a law like these passed in your state. To assist you, at the end I have included language that I would propose for the statute.

Colorado

C.R.S. §§13-22-107. Legislative declaration – definitions – children – waiver by parent of prospective negligence claims
(1) (a) The general assembly hereby finds, determines, and declares it is the public policy of this state that:
(I) Children of this state should have the maximum opportunity to participate in sporting, recreational, educational, and other activities where certain risks may exist;
(II) Public, private, and non-profit entities providing these essential activities to children in Colorado need a measure of protection against lawsuits, and without the measure of protection these entities may be unwilling or unable to provide the activities;
(III) Parents have a fundamental right and responsibility to make decisions concerning the care, custody, and control of their children. The law has long presumed that parents act in the best interest of their children.
(IV) Parents make conscious choices every day on behalf of their children concerning the risks and benefits of participation in activities that may involve risk;
(V) These are proper parental choices on behalf of children that should not be ignored. So long as the decision is voluntary and informed, the decision should be given the same dignity as decisions regarding schooling, medical treatment, and religious education; and
(VI) It is the intent of the general assembly to encourage the affordability and availability of youth activities in this state by permitting a parent of a child to release a prospective negligence claim of the child against certain persons and entities involved in providing the opportunity to participate in the activities.
(b) The general assembly further declares that the Colorado supreme court’s holding in case number 00SC885, 48 P.3d 1229 (Colo. 2002), has not been adopted by the general assembly and does not reflect the intent of the general assembly or the public policy of this state.
(2) As used in this section, unless the context otherwise requires:
(a) “Child” means a person under eighteen years of age.
(b) For purposes of this section only, “parent” means a parent, as defined in section 19-1-103 (82), C.R.S., a person who has guardianship of the person, as defined in section 19-1-103 (60), C.R.S., a person who has legal custody, as defined in section 19-1-103 (73), C.R.S., a legal representative, as defined in section 19-1-103 (73.5), C.R.S., a physical custodian, as defined in section 19-1-103 (84), C.R.S., or a responsible person, as defined in section 19-1-103 (94), C.R.S.
(3) A parent of a child may, on behalf of the child, release or waive the child’s prospective claim for negligence.
(4) Nothing in this section shall be construed to permit a parent acting on behalf of his or her child to waive the child’s prospective claim against a person or entity for a willful and wanton act or omission, a reckless act or omission, or a grossly negligent act or omission.

Florida Statute on Guardian right to sign away a minor’s right to sue.

Fla. Stat. § 744.301 (2010)
§ 744.301. Natural guardians
(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:

Alaska

Alaska Stat. § 09.65.292 (2011)
Sec. 09.65.292. Parental waiver of child’s negligence claim against provider of sports or recreational activity
(a) Except as provided in (b) of this section, a parent may, on behalf of the parent’s child, release or waive the child’s prospective claim for negligence against the provider of a sports or recreational activity in which the child participates to the extent that the activities to which the waiver applies are clearly and conspicuously set out in the written waiver and to the extent the waiver is otherwise valid. The release or waiver must be in writing and shall be signed by the child’s parent.
(b) A parent may not release or waive a child’s prospective claim against a provider of a sports or recreational activity for reckless or intentional misconduct.
(c) In this section,
(1) “child” means a minor who is not emancipated;
(2) “parent” means
(A) the child’s natural or adoptive parent;
(B) the child’s guardian or other person appointed by the court to act on behalf of the child;
(C) a representative of the Department of Health and Social Services if the child is in the legal custody of the state;
(D) a person who has a valid power of attorney concerning the child; or
(E) for a child not living with the child’s natural or adoptive parent, the child’s grandparent, aunt, uncle, sister, or brother who has reached the age of majority and with whom the child lives;
(3) “provider” has the meaning given in AS 09.65.290;
(4) “sports or recreational activity” has the meaning given in AS 09.65.290.

My suggestion on how the law should read.

Legislative declaration – definitions – minor children – waiver by parent or guardian of prospective negligence claims
(1) (a) The general assembly hereby finds, determines, and declares it is the public policy of this state that:
(I) Children of this state should have the maximum opportunity to participate in sporting, recreational, educational, and other activities where certain risks may exist;
(II) Public, private, and non-profit entities providing these essential activities to children in _____________ (state) need a measure of protection against lawsuits, and without the measure of protection these entities may be unwilling or unable to provide the activities;
(III) Parents have a legal and fundamental right and responsibility to make decisions concerning the care, custody, and control of their minor children. The law has long presumed that parents act in the best interest of their children. Troxel v. Granville, 530 U.S. 57; 120 S. Ct. 2054; 147 L. Ed. 2d 49; 2000 U.S. LEXIS 3767; 68 U.S.L.W. 4458; 2000 Cal. Daily Op. Service 4345; 2000 Daily Journal DAR 5831; 2000 Colo. J. C.A.R. 3199; 13 Fla. L. Weekly Fed. S 365 (Troxel is a US Supreme Court decision that allows a parent to sign away a child’s right to sue. See Courtney Love in Outdoor Recreation Law.)
(IV) Parents make conscious choices every day on behalf of their children concerning the risks and benefits of participation in activities that may involve risk;
(V) These are proper parental choices on behalf of children that should not be ignored. So long as the decision is voluntary and informed, the decision should be given the same dignity as decisions regarding schooling, medical treatment, and religious education; and
(VI) It is the intent of the general assembly to encourage the affordability and availability of youth activities in this state by permitting a parent of a child to release a prospective negligence claim of the child against certain persons and entities involved in providing the opportunity to participate in the activities.
(a) “Child” means a person under eighteen years of age at the time of incident, loss, injury or accident.
(b) For purposes of this section only, “parent” means a parent, a person who has guardianship of the person, a person who has legal custody, a legal representative, a physical custodian or a responsible person, in temporary custody and control of the minor Child.
(3) A Parent of a Child may, on behalf of the Child, release and waive, in advance, any claim or cause of action against a private, commercial, governmental or non-profit, activity provider, business, program or activity, or its owners, affiliates, employees, volunteers or agents, which would accrue to a minor child for personal injury, including death, and property damage resulting from the risk or an inherent risk in the activity or the Child’s prospective claim for negligence.
(4) Nothing in this section shall be construed to permit a parent acting on behalf of his or her child to waive the child’s prospective claim against a person or entity for a willful and wanton act or omission, a reckless act or omission, or a grossly negligent act or omission.

To work you will need to round up everyone who deals with kids. Little League and other youth sports groups, day care centers, youth programs like Scouts, commercial programs like camps, day camps and anyone serving youth as well as major organizations that may be in your state like NOLS and Outward Bound.

Your statutory language may vary based on current state laws and court interpretations, but go for it.  You can only lose time and get a civics lesson.

This won’t save you money on your insurance that never happens. However, it may help keep your insurance from going up and keep you out of court.

What do you think? Leave a comment.

 
Copyright 2010 Recreation Law (720) Edit Law, Recreation.Law@Gmail.com

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