Document Type
Article
Publication Date
2026
Publication
California Law Review
Volume
114
Abbreviation
Calif. L. Rev.
First Page
647
Abstract
The principle of parental involvement is nonpartisan: Red and blue states agree that parents should generally be involved in the lives of their children. Meanwhile, the goal of children’s well-being—which may sometimes be at odds with parental involvement—has become a touchstone for legal reform efforts across a variety of domains. The embrace of both the goals of children’s well-being and parents’ rights to be involved in decision-making regarding their children conceals deeply contested questions about when, why, and how the law should require parental consent of minors’ decisions.
Drawing on archival material housed at six different universities, we make sense of present-day conflicts about parental approval by revisiting the long legal history of parental involvement, from early common law cases to struggles of the civil rights era. We show that parental involvement was indeed the general rule. Yet, contrary to widespread assumptions, when it came to conflicts between parents’ and their children’s decision-making, from the very beginning, strict requirements of parental involvement were inconsistently applied. Further, what is often portrayed as a relatively recent, evolving consensus in favor of focusing on children’s well-being as the basis for parental involvement is instead a continuation of a longstanding tradition. At common law, we demonstrate that, in determining whether a minor could bind themselves to an agreement without parental involvement, courts often asked whether an agreement was beneficial to the child’s interests (and therefore either voidable or binding, depending on the judge or jurisdiction) or prejudicial to the child’s interests and therefore void.
Building on a rich literature on child well-being, we then use lessons from this history to construct a framework for determining when legislators and judges today should require parental involvement and when minors should be allowed to make their own decisions. We begin with a presumption, drawn from the lessons of common law, that parental involvement should be required for most types of important decisions. Yet decision-makers should impose exceptions to the general rule of parental involvement when (1) parental involvement requirements impede access to care or resources critical to minors’ well-being; or (2) the decision at issue is integral to minors’ autonomy over their bodies and their futures. We consider how this framework would address four current controversies relating to minors: (1) abortion and abortion-related travel; (2) gender-affirming medical care; (3) access to social media; and (4) mental health treatment. Our framework, we hope, will be faithful to the basic principles that animated the common law and will better illuminate when parental involvement is beneficial—and when it may have harmful consequences for the minors it is intended to protect.