by Elliot Zimmerman
Throughout my career, I have routinely included a parental guarantee of the child’s performance in all contracts I drafted for clients engaging a minor. IMHO, the parent gets a separate benefit and detriment from that of the child in agreeing to same in that the parent’s burden of providing for the child is abrogated if the child becomes an earner.
At common law, the custodial parent of a minor child is entitled by law to his/her services and earnings, such entitlement being reciprocal to the parental duty to support the unemancipated child. Brumfield v. Brumfield, 194 Va. 577, 74 S.E.2d 170 (1953) (emancipation of child confers on child the rights to own earnings and terminates parental legal obligation of support).
In Florida, pursuant to F.S. 743 et seq., a Court may Order that a child may not disavow a contract (after hearing and provided that the contract complies with the statutory requirements). Notwithstanding, F.S. 743 et seq. falls short of total emancipation. The logical conclusion is whether or not a Court Ordered removal of a child’s incapacity to contract under F.S. 743, the parents’ duty to care for the child remains, and they get a benefit if the child earns as aforesaid.
I submit this hypothetical in support of my spin that parental guarantees of such voidable minor contracts are enforceable...
Movie producer (“MP”) is doing yet another remake of The Judo Junvenille, and wants a famous child star as the lead. It is determined that if this famous child star disavows, the film will not be a money maker and all pre-production money will be lost. MP calls Leslies of London to insure against this loss and subsequently pays for an insurance policy to indemnify MP from such loss. Whether or not a Court Order is obtained under F.S. 743, the insurer should be on the hook.
Why is the parent who furnishes a guarantee any different than an insurer?
I have not found any cases directly on point, but there are some cases out there that embrace the foregoing logic.
See Boy Blue, Inc. v. Brown, 74 Va. Cir. 4, 11 (Va. Cir. Ct. 2007) and Herig v. Akerman, Senterfitt & Edison, P.A., 741 So. 2d 591 (1999).