Family Law

Can a Parent Waive Their Child’s Right to Sue?

Most people are aware of the fact that they may not be able to sue for a personal injury if they sign away their rights on a waiver. This often occurs if an adult is getting a tattoo or taking part in an inherently risky activity such as skydiving. The law becomes grayer in this area when it comes to minors. Minors cannot enter a legally binding contract in most instances, but that doesn’t necessarily mean that a parent can sign a contractual waiver on behalf of their children. The law is extremely complicated in this instance, so it is all the more important that parents understand exactly how these laws affect them and their children. 

Can a Parent Waive Their Child’s Right to Sue?

The answer as to whether or not a parent can waive their child’s right to sue is a resounding ‘no’ in some instances and a reluctant ‘yes’ in others. Our injury lawyer New York firm indicates that most states uphold a minor’s right to seek damages in personal injury situations and will not consider waivers signed by parents as a relinquishment of these rights.

There was a recent case in New Jersey where a twelve-year-old boy’s parents signed a waiver releasing a skate park from liability if the boy was injured. The minor was subsequently injured and had to undergo two surgeries, but the courts found that the boy could still file suit since his parents didn’t have legal grounding to sign away his rights. This does not mean, however, that a parent never has legal grounding to sign away this right.

Several courts throughout the country have recognized certain exceptions in relation to the signing of waivers. These exceptions usually relate to schools, community based organizations and non-profit organizations. These community programs often have minimal resources and would likely not be able to continue functioning if they frequently faced personal injury lawsuits. Since these programs are deemed necessary for a community’s enrichment, they are a common exemption to rules regarding waivers and minors. Parents also have the right to sign waivers when it comes to their child’s medical care for the same reason.

What Happens If a Parent Waives Their Child’s Rights?

In instances where parents can legally sign away their child’s rights, such as within community organizations, the child or parent will have no recourse for legal compensation. A Florida appeals court, for instance, found that a mother who had signed a waiver had no grounds to sue her son’s school after he was injured participating in a school sponsored fire rescue program. The court concluded that this school activity fell under a common exception which allows parents to sign away their child’s right to litigation.

When a parent signs a waiver that isn’t related to one of the aforementioned community organizations, the waiver is virtually void when it comes to a minor’s litigation rights. Several companies, however, have recently smartened up and included an ‘arbitration clause’ within their waivers. These arbitration clauses mean that even if the parent cannot legally sign away their child’s rights to recovery, a company can require that the matter be handled through methods other than court litigation if specified in their waiver. The New Jersey court that heard the aforementioned skate park dispute found that an arbitration clause did not violate the minor’s right to file a claim; it simply provided an alternative forum.

Whether or not a parent has legal standing to sign away a minor’s right to seek damages for a personal injury is one of the most complex areas of contractual law. It becomes obvious that there are certain situations, such as in a school setting, where these releases are necessary to allow an educational institution to create a hands-on learning environment without facing legal recourse. In most cases, however, parents don’t have the legal right to sign away their child’s right to recompense, so many waivers signed by parents have minimal effect in the real world.

Author Georgina Clatworthy is a former legal blog editor and contributes this post for The Perecman Firm, an injury lawyer New York group which provides experienced legal counsel for those dealing with personal injuries.  They understand the pain and distress injury cases involving children can bring and work with their clients to ensure their rights are protected.