the parent-child relationship as one of fiduciary obligations. A fiduciary relationship exists where
a person is “under a duty to act for or to give advice for the benefit of another upon matters within
the scope of the relation.”145 The responsibilities of a trustee are consistent with a choice-theory
developmental approach to children’s rights. Parents should act as a trustee of the rights of children
until they are sufficiently developed in their decision-making capabilities to make decisions
themselves. A trust-based relationship has been suggested for parents and children in regards to
medical care.146 The Author proposes to extend that to their duties to their children in regards to
their privacy on social media.
Imposing the obligations of a fiduciary relationship on a parent would require the parent to
act in preservation of the rights of their child: to act for their best interest where action is required,
and to reserve decisions that do not need to be made immediately for children to make for
themselves when they are able. This has support from contemporary children’s advocates, who
argue that the law should not entitle parents “to make decisions for a child that [belong] to the
child’s adult self.”147 An example of a decision that does not need to be made immediately is ear
piercing. Some parents pierce the ears of their infant daughters. While not necessarily harmful or
detrimental to the baby, it removes her ability to make that decision for herself, while she could
easily make the decision for herself a few years down the road, and preserve her autonomy to make
permanent decisions about her body.
Confidential relationships are closely related to fiduciary relationships. A confidential
relationship exists between two individuals when one has “gained the confidence of the other and
purports to act or advise with the other’s interest in mind.”148 Confidential relationships are a step
down from fiduciary relationships—even where a relationship does not reach the level of fiduciary,
it can still be confidential in nature. This type of relationship requires that people not violate or
abuse the confidence that is placed in them.149 Trust-like obligations on parents would include
preservation of children’s rights that can be preserved, and looking out for their best interest (taking
a balancing act against the possessory rights of the parents out of the equation entirely).
Several modern child rights advocates have made similar proposals to better serve the
interests of children that also support the idea of looking at a parent-child relationship in a similar
fashion to a trustee-beneficiary relationship. Barbara Bennett Woodhouse introduced what she
dubbed a “generist perspective.”150 She proposed to view “parenthood as stewardship, not
ownership,” the purpose of which is to serve the needs of the child, as a replacement for a
possessive, property type view of children.151 Joel Feinberg, a legal philosopher, advocates for
children’s right to an open future.152 His philosophy provides a framework for the trustee
relationship between children and their parents. He distinguishes several classes of rights, one of
145 RESTATEMENT (SECOND) OF TORTS § 874 cmt. a (AM. LAW INST. 1979).
146 Oullette, supra note 140, at 959 (suggesting a “. . . . trust-based construct of the parent-child relationship for
medicine, in which the parent has trustee-like powers and responsibilities over a child’s welfare and developing rights,
as well as fiduciary-like duties to the child.”).
150 Barbara Bennett Woodhouse, Hatching the Egg: A Child-Centered Perspective on Parents’ Rights, 14 Cardozo L.
Rev. 1747, 1754–55 (1993).
152 WILLIAM AIKEN & HUGH LAFOLLETTE, WHOSE CHILD?: CHILDREN'S RIGHTS, PARENTAL AUTHORITY, AND STATE
POWER 124 (1980).