James Toomey (University of Iowa – College of Law) has posted Parents as Liberal Fiduciaries (68 Boston College L. Rev. (forthcoming 2027)) on SSRN. Here is the abstract:
The relationship between parents and children is unique in the law. On the one hand, parents exercise more power over their children than in any legal relationship other than ownership; but parents, unlike owners, must act to promote their children’s welfare. At the same time, the parent-child relationship poses perhaps the single most difficult challenge to the liberal aspirations of private law—at once committed to not endorsing some contested view of the good life; and to letting individuals, including children, decide for themselves.
This Article outlines a novel theory of the legal relationship between parents and children as a kind of distinctively “liberal trust.” Just as trustees in property law are empowered to make decisions in the “best interests” of their beneficiaries, parents exercise broad legal powers in their children’s “best interests.” But unlike trust law, which endorses a particular view of what the interests of beneficiaries are, family law, for reasons of liberalism, leaves up to parents how to think about their children’s welfare.
On this view, some kinds of parental behavior—that not in the interests of children on the parent’s own terms, for example—violates the duties of the parental role; a logic enforced in some cases by specified rules, such as abuse and neglect laws. At the same time, the law sometimes imposes limits on parental behavior for reasons external to the logic of the parent-child relationship—with respect to certain aspects of educational minima, for example. Seeing parenthood in this way helps situate it among private law relationships and sheds light on its normative structure.
Highly recommended.