Parental Authority Over Children’s Litigation

This Article examines a critical yet overlooked factor shaping children’s access to civil justice: the scope of parental authority. Children have legal rights, but their status as legal minors often prevents them from enforcing those rights independently. Parents typically step in as children’s legal proxies, but doing so is far from straightforward. Two major hurdles stand in parents’ way. First, the “counsel mandate,” a court-made doctrine, prohibits non-lawyer parents from advancing their children’s claims pro se, forcing them to hire counsel at their own expense or face dismissal of the case. This effectively creates a pay-to-play system that excludes low-income families from the courts. Parents can theoretically circumvent this obstacle, in part, by asserting their own claims for relief, but in attempting to do so, they confront the second major hurdle: the legal framework governing parents’ authority to litigate claims relating to their children is fragmented and unclear. Specifically, it is often unclear whether a claim belongs to a parent, a child, or both, and thus whether a parent can pursue it without counsel. Moreover, when a parent brings a child’s claim, it is also frequently unclear in what role a parent should operate, whether the parent needs court approval, and what entitlement a parent has to serve as a child’s litigation representative over other candidates. Understanding the scope of parents’ litigation authority is critical because it effectuates children’s legal rights. Rights mean little if they cannot be enforced, and it is parents who typically seek to enforce children’s. Recognizing this problem, the Fifth Circuit recently outlined an initial path around the counsel mandate for some parents in Raskin v. Dallas Independent School District. This Article builds upon that work. Through a detailed analysis of federal procedural doctrines, including those governing the counsel mandate, standing, and litigation representatives, the Article maps the current contours of parental litigation authority and highlights its inconsistencies and inequities. It argues that courts should adopt a “familial framework” that conceives of parental litigation authority as part of a unified familial right to vindicate a child’s interests through the parent because the child cannot do so alone. Among other things, this approach would allow parents to make all litigation decisions on behalf of their children—including whether to proceed with or without counsel—unless a party shows a substantive conflict of interest. By grounding procedural doctrine in the realities of family life and constitutional principles, the Article offers a path forward that promotes fairness, access to justice, and respect for both parental authority and children’s rights.