Parent Suing on Behalf of a Child

I’m Katelyn Holub, an attorney focusing on personal injury law in northwest Indiana.

Welcome to Personal Injury Primer, where we break down the law into simple terms, provide legal tips, and discuss topics related to personal injury law.

Today’s question comes from a listener who would like to know if a child can hire an attorney and pursue a lawsuit on their own, or if the child’s parent must be involved to pursue a lawsuit on the child’s behalf.

This question requires a slightly complex answer.

The law does not deem a minor child under age 18 legally competent to hire an attorney. So, the child on their own cannot pursue a lawsuit.

Why doesn’t the law allow a child to pursue a case on their own? Well, the law holds that someone under age 18 does not have the mental capacity to handle their own affairs. That means the child is not competent to buy a car or sign a binding contract with an adult.

Even though a child may not legally be able to act on his or her own, a child can, through a guardian, hire an attorney and pursue a lawsuit.

What do I mean by “guardian”? The law recognizes two types of guardians: a natural guardian and a legal guardian.

Parents are what the law calls natural guardians. By being a child’s natural parent, the parent is presumed to have the child’s best interests at heart.

Thus, the simplest way that a child’s claim can be handled by an attorney is for the child acting through the parent to hire an attorney. The parent can sign a contract or other documents on behalf of the child.

Put another way, to pursue a lawsuit, a child under age 18 may have a parent file a lawsuit in court in the parent’s name as the next friend for the child.

If there is no living parent, a legal guardian must be appointed who can look out for the child’s interests. Once such a guardian is appointed, that guardian can hire an attorney. Through that attorney, the guardian can bring a lawsuit on behalf of the child.

Let’s look at an example. Suppose a 10-year-old child is injured in a car crash. If the child has a living parent, that living parent can pursue the case on behalf of the child.

But let’s say the 10-year-old is injured, and the child’s parents are killed in the crash. Once a legal guardian is appointed for the 10-year-old, that legal guardian can pursue the child’s case by hiring an attorney.

This complexity is required because, under the law, the courts have an obligation to look out for the interest of the minor child.

Nobody wants a minor child to be taken advantage of.

A well-intentioned next-door neighbor cannot simply pursue a case on behalf of an orphan child. The neighbor would have to petition the court to show that they are competent to protect the child’s interests and agree to court supervision if the court authorizes them to pursue a case to protect the child’s interest.

Once appointed as a guardian, the guardian cannot settle the case without the approval of the guardianship court. This is another check on the interest of the guardian. Moreover, money recovered in the lawsuit must be applied towards the child’s benefit. The recovery made in the lawsuit is to be solely for the benefit of the child. Most of the time, any money recovered in a lawsuit for a child would have to be maintained in an interest-bearing account for the child’s benefit until that child reaches the age of majority.

As we already pointed out, a parent is deemed to be a natural guardian of a child and can pursue litigation without having to get court approval first. However, even the parent as a natural guardian must get court approval of any proposed settlement of the child’s claim and protect the money recovered in the claim for the child’s benefit.

I hope you found this information helpful. If you have questions about your legal rights if you get hurt due to the carelessness of another person, or as a result of substandard medical care, or due to a product defect, construction injury, or any other type of personal injury, please give us a call at (219) 736-9700. You can also learn more about us by visiting our website at DavidHolubLaw.com – while there make sure you request a copy of our book “Fighting for Truth”.