LEGITIMATE CHILDREN. The parents mire the legal as well as the natural guardians and pro tectors of the child. They have the legal right to name the child and are entitled to his custody. As such eustodbins, they or persons in loci, pa rudis may reasonably chastise the child, but for excessive punishment, amounting to willful or malicious cruelty, the parent may be civilly liable in an action of tort (although in some States this liability has been denied on grounds of policy), or criminally liable for assault, or homicide in case death ensues. At common law the parents could not be deprived of the custody and control of the child by third parties. but by modern legislation officers having supervision over public charities. and in some States private charitable corporations, are authorized to acquire custody of the child, if subjected to cruel or improper treatment by the parents. by means of a properly instituted legal proceeding. At common law, as between the father and mother, in case they were living apart or divorced, the father was deemed to be entitled to the custody of the child, but by the Statute 36 and 37 Viet., e. 12, the mother was entitled to apply to the Court of Chancery for custody of the child, which the court in its discretion might award to her if it appeared to be for the best interests of the child. It it now the practice of courts generally in the United States, even in the absence of statute, to award the custody of the child to the parent best quali fied and able to care for and educate the child.
In ease of divorce or judicial separation of the parents, even in the absence of statute, courts having jurisdiction over divorce generally have jurisdiction to award custody of the children of the marriage. The right to custody may also be determined in a proper case by habeas corpus (q.v.), or in some States upon applica tion to courts of probate or similar courts hav ing statutory jurisdiction over the subject matter. If the parents separate by agreement, no stipu lation entered into by them as to the custody of the child will be enforced by the courts if preju dicial to the child.
A parent or one in loco parentis is entitled to the services of his child until he comes of age, and if the services are rendered to others, the parent is legally entitled to recover the reason able value of the child's services unless payment for the services is made to the child with the consent of the parent. As between the father and
the mother, the father is entitled to the child's services, hut upon the death of the father or upon custody of the child being awarded to the mother, she becomes entitled to the child's serv ices. The right of the parent to take the child's earnings may be waived by his voluntary eman cipation of the child. Sec EMANCIPATION.
When a child having regularly rendered serv ices to his parents continues to do so after cool ing of age, there is a presumption of fact that the services are rendered as a gift, and he will not be allowed to recover for the services thus rendered in the absence of some agreement to that effect.
Parents have no interest in or control over the property of their children, such control being exercised by g,nardians appointed by courts of chancery or probate. having jurisdiction over the property of infants. (See GUARDIAN and WARD.) Wearing apparel and personal effects, however, purchased by the parent for an infant child remain the property of the parent and sub ject to his control. ('hoses in action belonging to the infant might be enforced at common law by an action brought in the name of the infant by the parent as next friend (proch-ein alai) of the infant; and now by statute generally such actions are prosecuted in the name of the infant by a guardian ad Ulm appointed by the court, who may be hut is not necessarily a parent of the litigant.
As the parent is legally entitled to the serv ices of the child, any wrongful act of third per- g sons interfering with this right is a tort, for .1 which such third persons must respond in dam ages to the parent. Thus a parent may recover all damages suffered by him by reason of loss of services of his child because of personal in juries inflicted upon the child by the negligent conduct of third persons. And in most jurisdic tions be may recover also for the medical atten dance supplied to the child, although, as will appear, the parent was not bound by the common law to supply the child with necessaries.