Duhaime's Law Dictionary


Guardian by Nature Definition:

A mostly discarded assumption of law; that the legal guardian of a child is the father or, on his death, the mother.

Related Terms: Djabr, Guardian of the Person, Guardianship

An ancient principle of law, originally Roman law, that gave to the father ultimate decision-making powers in regards to his natural children and in his absence, to the mother.

In Lámar v. Micou, Justice Horace Gray of the United States Supreme Court recognized this concept in these words:

"Although some books speak only of the father, or, in case of his death, the mother, as guardian by nature, it is clear that the grandfather or grandmother, when the next of kin, is such a guardian."

In his Commentaries on American Law, James Kent wrote:

"Guardian by nature is the father, and, on his death, the mother; and this guardianship extends to the age of twenty-one years of the child, and it extends only to the custody of his person...."

In an article published in the University of Detroit Law Journal (now the University of Detroit Mercy Law Review) in 1949, this commentary of the law appeared in reference to a recent Michigan case (Ferguson v Phoenix Insurance, 110 A. 11):

"(A) guardian by nature at common law is the father, and on his death, the mother, and so continues until the child is 21.

"Only an heir apparent can be the subject of guardianship by nature which extends only to the custody of the person. It gives the father no right or control over the infant's property, real or personal."


REFERENCES:

  • Daniels v. Metropolitan Life Ins. Co., 5 A. 2d 608 (1939)
  • Kent, James, Commentaries on American Law, Volume 2 (Boston: Little Brown 1884), page 220
  • Lámar v. Micou, 114 US 218 (1885)
  • Recent Decisions, 12 U. Det. L.J. 89 (1948-1949) at page 101

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