Parens Patriae

The doctrine of parens patriae “is a concept of standing utilized to protect . . . quasi-sovereign interests, such as ‘health, comfort, and welfare’ of the people,” when such interests are threatened and state government intervention may be needed. Gibbs v. Titelman, 369 F. Supp. 38, 54 (E.D. Pa. 1973), rev’d on other grounds, 502 F.2d 1107 (3d Cir. 1974).

The parens patriae doctrine differs from the in loco parentis doctrine, the later involving care that is “temporary in character and not to be likened to [the permanent situation of] adoption.” Griego v. Hogan, 377 P.2d 953, 955-56 (N.M. 1963). The in loco parentis doctrine can be applied to both governmental and non-governmental entities, and is implicated “when a person [or legal entity] undertakes the care and control of another [person of legal incapacity] in the absence of such supervision by the latter’s natural parents and in the absence of formal legal approval.” Id.

One of the more common situations where there may be threatened interests requiring state intervention involves the interests of minors and others of legal incapacity. Blackstone noted that under early English common law, the English sovereign was “'general guardian of all infants, lunatics, idiots.’” Fontain v. Ravenel, 58 U.S. 369 392-93 (1854) (Taney, J. concurring)(citing 3 W. Blackstone, Commentaries on the Laws of England 48 (1769)). English royalty originally enjoyed virtually unlimited power over the minors of their subjects. Over time, however, the Crown’s power became circumscribed by the rule of law, through the Magna Carta, the Writ of Habeas Corpus, and the continual evolution of the common law.

The United States Constitutional system of Ordered Liberty included additional safeguards. Article I, Section 9, guaranteed access to the Writ of Habeas Corpus. The Tenth Amendment created a vertical system of checks and balances, thereby distributing some powers to federal government, some to state government, and the remainder to the People. Parens patriae power of standing was reserved to the state governments, and could not properly be exercised by the federal government. See Fontain, 58 U.S. at 379, 384, 393; Mormon Church v. United States, 136 U.S. 1, 57-58 (1890)(parens patriae authority of Crown devolved upon the state legislatures); American Loan & Trust Co. v. Grand Rivers Co., 159 F. 775, 782 (W.D. Ky. 1908). The First, Third, Fourth, Fifth, Sixth, Seventh, Eighth, and Ninth Amendments afforded affirmative protections of individual liberty, which further constrained the practical reach of parens patriae.

State government exercises of parens patriae power are also subject to the United States Constitutional system of Ordered Liberty. See Meyer v. Nebraska, 262 U.S. 390, 290 (1923)("Determination by the Legislature of what constitutes proper exercise of police power is not final or conclusive but is subject to supervision by the courts."). Particularly after the enactment of the Thirteenth and Fourteenth Amendments, the Supreme Court applied due process principles and strict scrutiny analysis to limit state invocations of its parens patriae power. Liberty in “matters relating to marriage, procreation, . . . family relationships, and child rearing and education” are “’fundamental’” and “'implicit in the concept of ordered liberty’ as described in Palko v. Connecticut, 302 U.S. 319 (1937).” Paul v. Davis, 424 U.S. 693, 713 (1976). “In these areas . . . there are limits on the state’s power to substantively regulate conduct.” Id.

“[T]he admonition to function in a ‘parental’ relationship [of standing] is not an invitation to procedural arbitrariness.” Kent v. United States, 383 U.S. 541, 555 (1965). States may not exercise such power in a manner that has “all-encompassing scope and . . . sweeping potential for broad and unforeseeable application.” Wisconsin v. Yoder, 406 U.S. 205, 234 (1972). With respect to school teachers, they have only such portion of parental authority as a parent may choose to temporarily commit to the teacher's charge, in order to answer the purposes for which the parent has initiated the employment. Vernonia School District 47J v. Action, 515 U.S. 646, 654-55 (1995)(quoting 1 W. Blackstone, Commentaries on the Laws of England 441 (1769)).

State governments may not properly override parental decisions or terminate custody, unless 1) parents delegate their authority to the state voluntarily and knowingly, or 2) the state demonstrates through appropriate due process that there is clear and convincing evidence that the parents have triggered state parens patriae interests by placing their children in clear and present danger. C.f. Croft v. Westmoreland County Children & Youth Servs., 103 F.3d 1123 (3d. Cir. 1997).

See also Minimum Standards; Creature of the State;Fundamental Right to Direct the Upbringing of One's Child; In Loco Parentis.

Back to:
1) Index of Quaqua Legal and Historical Pages
2) History
3) Legal Resources
4) Quaqua Society Home Page