Who is an Infant?
Until recent decades, an infant was generally defined under Anglo-American laws and statutes as a person under the age of seven years. Divisions of opinion exist, however, regarding children between the ages of seven and fourteen. Most common law courts, for purposes of the law of crimes, at least in suspected felonies, have adopted a presumption of infancy up to age fourteen. The English common law presumption (or, more accurately, rule) that a child under age seven is incapable of crime is now, in most American jurisdictions, a rule of evidence only, rather than a rule of substantive criminal law.
States have adopted statutes that reach beyond this common law definition of an infant, although the definitions vary from one jurisdiction to another . While the generally accepted definition of an infant at law is anyone under the age of eighteen years, some example variations include:
- The "common law general rule" of infancy of "under age fourteen, or age ten or twelve in some jurisdictions," for all purposes;
- The "definition of an infant as one who has not attained the age of twenty-one years," for purposes of enforcing contracts;
- The "general statutory definition of an infant as one under the age of eighteen, except where the age of majority is otherwise fixed by statute";
- A "statutory definition of infancy in relation to insurance" as one who has not yet reached age fifteen;
- The definition of an "infant" as a "child born out of wedlock" for purposes of inheritance for all purposes, and for "purposes of liability orders, birth and educational certificates, maintenance payments, deprivation orders and purposes relating to inheritance in intestacy and succession"; and
- A definition of "infant" applicable only to lawsuits brought on behalf of persons who are challenged to be incompetent by reason of infancy.
States also define "infant" in their adoption laws. For the purposes of adoption, the term generally refers to a child who is under six months of age at the time the petition for adoption is filed, and the age barrier varies in some jurisdictions to twelve months for children who are abandoned, surrendered to child protective services, or seized under a protective custody order.
Infants and Children: The Legal Distinction
The law differentiates between an infant and a child in some respects although the definition of each is not as mundane as it might seem at first glance. For example, Virginia law defines "infant" as "a child less than fourteen years of age who has not been previously married." So, the 65 year old "baby" who never married before might actually qualify for such a designation and thus enjoy the protection of "infancy." An infant is not, however, a "child" as Virginia Code Section 8.01-2(A) provides that an infant who is between fifteen years old and eighteen years old possesses "childhood." Virginia law also has to do with "infants," but then reverts back to an overall "child" designation and even substitutes the age of 15 for the age of 14 in some cases. Litigators are all too familiar with the dispute over Virginia’s definition of "infancy" as being fourteen and under. We have all heard the criticism that the law deems 14 year-olds to be incapable of being negligent while driving yet only eleventh graders get to go the prom without their parents. Legislative redress of these "absurdities" has yet to occur.
In the Eyes of the Law: Family Issues
The definition of "infant" is particularly relevant in proceedings that deal with custody and guardianship of children. In such cases, the standard applied by the courts in making the determination of who should be granted custody or guardianship is known as the "best interest of the child" test.
In determining what is in the best interest of the child, parents are automatically assumed to be the child’s custodians once the child is born (B.(R.) v. Children’s Aid Society of Metropolitan Toronto [1995] 1 S.C.R. 315).
Provincial legislation recognizes the child’s parents as his or her guardians and gives them the responsibility and authority over the child. As a default, custody is presumed to be a joint responsibility of the parents. Any documents or legal instruments that address the guardianship or custody of the infant do not come into effect until the infant reaches the age of majority. It would only be at this time that a child’s interests can be observed, as longstanding law states that once a child becomes an adult they are no longer considered an infant, having no one in their absence to make decisions for them.
In Young v. Young [1993] 3 S.C.R. 36, the Supreme Court of Canada found that parents are given an equal right to apply for guardianship of a child, and therefore, presumptively share the responsibilities in the decision-making process for the child. If, however, the parents are divorced at the time of filing for guardianship of the infant, the parent residing with them has more influence over the child’s interests than the other parent living apart from the child. The two parents do nevertheless share an equal right to apply for guardianship, regardless of who the primary caregiver is.
Given the evidence that custody and guardianship claims by parents may have a tenuous relationship with other claims such as inheritance, it is important for the court to have in mind the concept of the infant’s best interest in parenting disputes involving the decisions of adults about the lives of minors.
Contractual Implications of being an Infant
The term "infant" is also used in the context of an infant’s ability to enter into a legal contract. In contract law, a contract is an agreement between two or more persons regarding a thing of value (i.e., the "agreement"). For an agreement to be legally binding, certain elements must be met. In particular, one of the parties must have the capacity to contract.
In the context of the age of majority, for purposes of the law, the term "infant" refers to a person who has not reached the age of 18. Therefore, anyone under the age of 18 is considered an "infant" for purposes of acquiring capacity to enter into a legally enforceable agreement.
Generally, an infant does have the capacity to enter into an agreement. However, some agreements are unenforceable against an infant. Specifically, those agreements that are for necessities (i.e., food, clothing, shelter) will be enforceable against an infant.
All contracts entered into by an infant other than those which are enforceable against an infant can be disaffirmed at any time before the individual reaches the age of 18 or shortly thereafter.
Although the law permits infants to disaffirm contracts, a hardship principle exists which provides that an infant cannot disaffirm a contract if doing so would create a hardship for another party.
International Interpretations of Infant
International Variations in the Legal Definition of Infant
As in the United States, legal definitions of infant vary by country. The Council on International Educational Exchange (CIEE) provides this list of the age of majority and legal definitions of infant across selected countries:
Country
Age of Majority
Legal Definition of Infant
USA
18 years
Minors are defined as persons under the age of 18 years.
UK
16 years
Nonage is the state or case of a person who is under the age of majority; — he is within his nonage.
Spain, Brazil
18 years
No statutory definition but defined in civil law as the person under the age of majority (art. 31 of the Spanish Civil Code)
Indonesia
21 years
"Major" refers to someone who has met the age of 21 , and "minor" refers to someone who has not reached that age.
Philippines
21 years
No statutory definition but defined in civil law as the person under the age of majority.
Canada
19 years
A youth in the context of the law is a person from the age of 12 until the age of 18.
France
18 years
Minor is a person who has not yet reached the age of majority (art. 388 of the Civil Code)
Italy
18 years
Minor refers to all those who have not yet reached the age established by law as the age of majority.
Japan
20 years
Minor is a term that describes a person who has not reached the age of twenty.
Source: http://www.ciee.org/study-abroad/information/resources/money-management/international-age-requirements.aspx
Statutory Considerations for Infants
While the common law developed certain rules to govern the treatment of infants’ interests, modern law and policy have evolved additional statutory protections that further safeguard these vulnerable individuals. Some statutes provide specific rights to infants, while others set forth particular administrative or procedural safeguards when their rights are involved. For example, in substantially all states, as discussed in greater detail in "Infants and a Guardian Ad Litem," infants or minors who are under the age of eighteen at the time of trial are entitled to the appointment of a guardian ad litem to represent them if their interests are implicated in a lawsuit. Thus, if their parent and/or guardian is a defendant or if they otherwise have an interest in a proceeding before the court, a guardian ad litem is appointed to act in their best interests. If the case settles, the appointment of a guardian ad litem helps preserve the infant’s rights by putting the settlement into a structured settlement trust for their benefit in the future. Specifically, as statutory beneficiaries of a structured settlement annuity payment, infants receive an income tax-free structured settlement payment stream, which is designed to pay for their current and future medical needs and to support their future.
Indeed, nearly all states have other statutes that require the prescription and/or management of such structured settlement proceeds on behalf of a minor or disabled beneficiary. In all but three states, the Internal Revenue Code also provides that if structured settlement proceeds are sold into a secondary market, a court order must be entered prior to the transaction allowing for the structured settlement to be transferred. The vision behind these procedures is to prevent the proceeds of settlements from being misused and to ensure that the statutory beneficiary is actually receiving the benefit of the structured settlement annuity payments.
In addition, some states have adopted statutes providing non-judicial procedures that can facilitate the management of infant claims. For example, New York allows a judge to approve a structured settlement payment stream without the necessity of judicial review and/or the appointment of a guardian ad litem, so long as the settlement proceeds do not exceed a certain sum. Once the plaintiff and defendant has approved the proposed settlement, a judge will receive a petition presented by the parties’ counsel and will enter an order authorizing the payment stream pursuant to the terms contained in the petition. The order constitutes a full and final release, while the payment stream will be funded by the defendant’s insurance carrier.
At first glance, this provision is quite unusual, as courts routinely oversee settlements involving the rights of infants. However, because the statute contains certain procedural requirements, the court still has a critical role in these transactions. In fact, if the court does not approve the placement of the structured settlement payment stream, the deal cannot go forward. For instance, the statute requires that the court be presented with a copy of the structured settlement annuity contract, and the court must ascertain whether the payments will be used for the benefit of the minor plaintiff. Additionally, if a party applies for approval, the statute requires a hearing within 90 days of the application, unless good cause can be shown. While not every state has adopted a similar statute allowing a streamlined approval process, New York’s statute is unique in its recognition of the need to minimize the costs associated with the resolution of such settlements.
Case Law and Legal Examples
A handful of case studies and decisions are worth noting, nonetheless, particularly in the context of today’s legal climate and regulatory environment. Several states have set a precedent by defining infant to include a period beyond simply the year after birth. For instance, a Louisiana case held that "infant" meant "of tender years and, in the absence of evidence of different custom at the date alleged herein, will ordinarily be presumed to mean a child three years of age or younger". (Broussard v. Cajun Constructors, Inc., 03-C-0460 (La. 4/22/03) 843 So. 2d 1052, 1054). Voila! A two to three year expansion of the legal definition of infant in Louisiana. In Johnson v. Bittner, 70 F.3d 792 (3d Cir. 1995), the Third Circuit (New Jersey) held that the term "infancy" essentially expired when the injured child reaches the "age when usual development of intelligence and mental faculties is reasonably complete" – at 12 to 13 years of age. Conversely, the Washington Supreme Court has gone the other direction. The Court determined that the relevant period for determining when an injury was "a consequence of the plaintiff’s infancy" for a minor, under six years of age, runs only until the child is six years old. "After age six, neither the age of a minor nor the designation ‘infant’ affects the application of statutes of limitations." McCorkel v . Spokane Schools, 111 Wn. 2d 747 (1989). Washington also has a wrongful birth statute, RCW 70.58.320, which "establishes a 10-year statute of limitations for minors over 10 years old who were harmed due to ‘wrongful birth’ by a healthcare provider", and that the statute of limitations does not "toll until the age of [18] years under RCW 4.16.190." (Carstensen v. Kanda, 177 P.3d 184 (Wash. 2008) (en banc) (holding that the statute of limitations was tolled until the plaintiffs’ 18th birthdays, allowing them to sue up until age 28)). In other words, it could mean that when a child turns 10, the plaintiff’s claim would expire only 8 years later (18 years of age before bringing suit). As part of the Child Abuse Prevention and Treatment Act (CAPTA), Congress required States, as a condition of receiving federal funding to implement the act, to adopt a minimum age of 18 for prosecution of certain sexual offenses against children. The relevant language reads: 42 U.S.C.A. § 5106g(c)(2)(A)(iii)(I). The text defines a "child" as a person who would be considered to be "under 18 years of age." (see 45 C.F.R. § 1340.14(a)). Under the National Childhood Vaccine Injury Act of 1986, vaccinations for "all" children must be recommended. The law does not define "all" but "children" are defined as "persons who have not attained the age 18 years". (see www.mayoclinic.org.)