Court takes look at ban against kids suing parents

By Steve Lash
BridgeTower Media Newswires
ANNAPOLIS – Maryland’s top court will consider whether the general prohibition on minor children suing their parents survives the child’s death, thus barring a youngster’s estate from suing a parent for wrongful death.

The Court of Appeals last week agreed to hear Timothy Heidenberg’s appeal of lower court decisions that the Doctrine of Parent-Child Immunity died with his young son, who drowned in a swimming pool at the father’s house.

Howard County Circuit Judge Timothy J. McCrone’s ruling last March permitted the estate of Michaelangelo Heidenberg to pursue its claim that the father’s negligence in not carefully watching his son led to the “wrongful death.”

The Court of Special Appeals upheld that pretrial decision, prompting Timothy Heidenberg’s successful request that the high court review the breadth of the prohibition on children suing their parents — and to do so before the potentially gut-wrenching wrongful death trial proceeds.

Michaelangelo’s mother, Claudia Grier, is pressing the wrongful death claim in her capacity as personal representative of her son’s estate.

Grier was Michaelangelo’s custodial parent, with Heidenberg provided visitation rights.

“Denial of immediate appellate review will force a hurting family and a deeply grieving father to again relive the tragic accidental drowning and endure a trial fraught with never before considered issues (e.g. parental standard of care, status of a child in the non-custodial parent’s home, defenses prone to destroy an entire family),” Heidenberg’s attorneys stated in their review request. “Vindication upon final review of a final judgment is an empty consolation when the very purpose of the Doctrine of Parent-Child Immunity, preservation of peace and harmony of the family, is long since destroyed.”

The father’s attorneys, Lorraine Lawrence-Whittaker and Mary R. Poteat, stated that Maryland courts have allowed children to sue only in cases in which the parent has been intentionally malicious toward them, not in cases alleging negligence.

In addition, the Maryland General Assembly has passed a law permitting children to sue their parents for injuries sustained in automobile crashes in deference to required insurance coverage, an implicit affirmation that the doctrine applies in all other instances, stated the attorneys, who are with Lawrence Whittaker PC in Ellicott City.

“The basis for the unwavering support of Maryland’s high court for the Doctrine of Parent-Child Immunity lies in three strong public policy considerations in support of Maryland families,” Lawrence-Whittaker and Poteat added. “Specifically, the preservation of parental discipline and control; the prevention of fraud and collusion; and the very real threat that litigation between parents and children may deplete family resources.

“Any erosion of rights incident to the Doctrine of Parent-Child Immunity fundamentally affects every family with unemancipated children in the state, bar none.”

But the attorneys for the estate and Grier wrote in their high court filing that the family-unity basis for the doctrine does not apply in this wrongful death action.

“Petitioner (father) erroneously identifies his home, where young Michaelangelo drowned, to be the family home, and that continuation of this case would destroy family peace and harmony,” stated attorneys Michael S. Warshaw and Elyse Strickland. “In fact, Michaelangelo lived with his mother, who had full custody of Michaelangelo by consent. Petitioner and respondent (mother) have never married, do not live together, and do not enjoy ‘family peace and harmony’ in their relationship.”

In addition, the bar on children suing their parents “has fallen into disfavor in the overwhelming majority of states,” the attorneys wrote.

Warshaw and Strickland also quoted from the Court of Appeals’ 1997 Renko v. McLean decision, in which the judges said the doctrine “has never stood static where
historical experience and common sense dictated that it must yield.”