Parens Patriae

[Latin, Parent of the country.] A doctrine that grants the inherent power and authority of the state to protect persons who are legally unable to act on their own behalf.

The parens patriae doctrine has its roots in English Common Law. In feudal times various obligations and powers, collectively referred to as the "royal prerogative," were reserved to the king. The king exercised these functions in his role of father of the country.

In the United States, the parens patriae doctrine has had its greatest application in the treatment of children, mentally ill persons, and other individuals who are legally incompetent to manage their affairs. The state is the supreme guardian of all children within its jurisdiction, and state courts have the inherent power to intervene to protect the best interests of children whose welfare is jeopardized by controversies between parents. This inherent power is generally supplemented by legislative acts that define the scope of child protection in a state.

The state, acting as parens patriae, can make decisions regarding mental health treatment on behalf of one who is mentally incompetent to make the decision on his or her own behalf, but the extent of the state's intrusion is limited to reasonable and necessary treatment.

The doctrine of parens patriae has been expanded in the United States to permit the attorney general of a state to commence litigation for the benefit of state residents for federal antitrust violations (15 U.S.C.A. § 15c). This authority is intended to further the public trust, safeguard the general and economic welfare of a state's residents, protect residents from illegal practices, and assure that the benefits of federal law are not denied to the general population.

States may also invoke parens patriae to protect interests such as the health, comfort, and welfare of the people, interstate Water Rights, and the general economy of the state. For a state to have standing to sue under the doctrine, it must be more than a nominal party without a real interest of its own and must articulate an interest apart from the interests of particular private parties.

Cross-references

Antitrust Law; Child Abuse; Children's Rights; Infants.

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parens patriae (paa-wrens pat-tree-eye) n. Latin for "father of his country," the term for the doctrine that the government is the ultimate guardian of all people under a disability, especially children, whose care is only "entrusted" to their parents. Under this doctrine, in a divorce action or a guardianship application the court retains jurisdiction until the child is 18 years old, and a judge may change custody, child support or other rulings affecting the child's well-being, no matter what the parents may have agreed or the court previously decided. (See: divorce, custody, child support, guardian, ward)