NewYorkUniversity
LawReview
Current Issue

Volume 95, Number 2

May 2020

Litigation as Parenting

Lisa V. Martin

Children have legal rights. Yet, children typically lack the legal capacity to represent their interests in courts. When federal courts are presented with children’s claims, the Federal Rules of Civil Procedure require courts to ensure that children’s legal interests are adequately protected. To do so, courts decide who can speak and make decisions for the child within the litigation. Federal Rule of Civil Procedure 17(c) maps out a loose process for addressing these concerns but fails to fully account for a critical factor in protecting child litigants: the decisionmaking rights of parents. 

Because parents have constitutionally protected authority to make important decisions for their children, litigation brought on a child’s behalf presents a collision of rights and obligations between parents, children, and “the state,” here, the federal courts. Court doctrine interpreting Rule 17(c) is tangled and inconsistent and fails to offer clear guidance regarding what preference, if any, parents should have to represent their children’s interests in litigation. This Article proposes for the first time that constitutional doctrine establishing parents’ protected decisionmaking authority should make parents the default representatives for their children in federal civil litigation. The Article presents an account of court practices and an analytical framework to guide courts’ application of Rule 17(c), which implements the general constitutional rule of parent priority while upholding the courts’ responsibility to protect children’s interests.