It is time, I think, to address the elephant in the room. Or rather, the absence of the elephant — which is the real problem — and the further absence of the room in which the elephant might otherwise have been standing, were the elephant ever to have been acquired, which, let us be honest, it was not, because the defendant is eleven.
The core difficulty of every matter this Journal evaluates is not liability. Liability, in the household context, is generally easy to establish. The snack was taken. The curfew was missed. The thermostat was adjusted. The hoodie, for reasons never adequately explained, was nowhere to be found. Parents know what their children have done. Children often know it too. In the rare cases where the facts are genuinely contested, the contest is usually over something so minor that establishing it would be more tedious than the conduct being contested.
No, the difficulty is always, and only, collection. Minors in the United States, as a general rule, do not own assets the law recognizes as collectible. They may have a few dollars in a piggy bank, a modest checking account opened by a well-meaning aunt, a collection of Pokémon cards of sentimental rather than liquid value, and — in the rarer cases — a small 529 plan whose terms prohibit its use for, among other things, paying off tort judgments arising from household disputes. This is by design. The law, for reasons that are on reflection quite sensible, does not encourage creditors to pursue children.
The Doctrine of the Allowance
One might think that the allowance — that small weekly sum conveyed from parent to child in exchange for, depending on the household, everything or nothing — constitutes a reachable asset. One would be wrong. The allowance is, as a matter of first principles, the parent's own money, being cycled through the child on its way back to the parent in the form of reimbursement for a judgment against the child. At no point does the money cease to be the parent's. The transaction is, in economic substance, a parent transferring money from one account to a slightly more psychologically distant account.
This is, for most of our clients, the moment of clarity. It is also, for most of our clients, the end of the matter.
The Parental Responsibility Problem
Compounding the collectibility problem is the parental responsibility problem, which is that the parent — the same parent who is, in our scenarios, the putative plaintiff — is often also legally responsible for the minor defendant's debts. In many U.S. states, parents are liable, by statute, for certain categories of damage caused by their minor children to third parties. These statutes vary. Their caps vary. Their mechanisms of enforcement vary. But the general principle is that you cannot, in most states, keep your child and disown their obligations in the same breath.
To be clear, this statutory liability typically covers damage caused by the child to others, not damage caused by the child to the parent themselves. But the broader point holds: the law treats the parent-child relationship as economically unified for many purposes, and the moment one tries to litigate within the unit, one tends to find that the unit has somehow absorbed both sides of the case.
The parent who sues their own minor child is, in most meaningful senses, bringing an action against themselves. They will win. They will also lose. The judgment will be satisfied, if at all, out of a joint pocket.
Why, Then, Proceed?
I am often asked — by friends, by my husband, by my own children on those occasions when they have become aware of what I do with my evenings — why I continue to operate this Journal at all, given the foregoing. If no matter can be won, and if winning would be losing, why the filings? Why the Roman numerals? Why, for the love of God, the motto in Latin?
The answer, such as it is, is this. The formality is the point. The exercise of dressing up a grievance in the clothes of real litigation — the citation, the analysis, the disposition — is an exercise in taking seriously, and there is not much taking seriously, in the average household, on the average evening. The pad thai is gone. The thermostat is lower. The hoodie was never really ours to begin with, was it, not really, not in the way we thought. Somewhere in each of these small injuries is a larger one — the injury of watching the people we love become, slowly, their own people, whose desires and decisions are no longer routed through us.
We cannot sue them for that. The law has no cause of action for the ordinary operation of time. But we can, at our desks, at eleven at night, in the quiet after the house has gone to sleep, draft a complaint on card stock. It helps. Not much. But some.