Three Reasons A Parent May Be Barred From Filing A Wrongful Death Action For A Child

Posted on: 15 December 2015


When a child dies due to the negligence or wrongful action of another party, the parents have the right to pursue a civil lawsuit to hold the liable person or company financially responsible for the loss. Unfortunately, the law does put some restrictions on this right. Here are three times when you may be barred from filing a wrongful death lawsuit against a liable party for the loss of your child.

The Child Was a Fetus

About 10 states do not consider a baby to legally be a person until it is born alive. This typically means that even if the child is birthed, it must take a breath before the state will consider the baby to be "a living person" for the purposes of a wrongful death lawsuit. If the child died in vitro or was stillborn, then you may be barred from suing the responsible party for your loss.

States that do allow parents to sue for the wrongful death of an unborn child will typically have a viability requirement. The judge will only allow the lawsuit to proceed if you can prove the unborn child was viable (could live outside the womb) at the time of its death. Viability is usually determined by how many weeks along the mother was. For instance, in Indiana, you can sue only if the unborn child was 35 weeks or more into the gestation period; otherwise, your case would likely be dismissed.

The Parent Did Not Contribute

Another reason a parent may be prevented from suing for the wrongful death of the child is if he or she didn't contribute in any way to the cost or care of the child. This generally occurs in situations where the parents of the child have divorced or separated. However, it can also occur if the child was given to another family member to raise, such as when a parent signs over custody to a grandparent.

The court may determine a parent who didn't pay child support or visit the child while he or she was living to have effectively abandoned the kid and may either bar the person from proceeding with a wrongful death action or stop the person from collecting any compensation from a lawsuit launched by another relative.

However, the circumstances of the non-involvement will dictate the court's decision. For example, in the case of Baker v. Sweat, the father of the deceased child was barred from the wrongful death proceedings enacted by other family members because the court determined he had lost his parental rights due to his absence and lack of financial contribution. In this case, there didn't appear to be anything stopping the father from fulfilling his parental obligations. A judge may decide differently in a case where the parent was incarcerated, sick, or had other issues that prevented the individual from being financially and emotionally responsible.

The Child is Not Biologically Related

A third reason you may not be able to sue for your child's wrongful death is if you are not biologically related to him or her. This occurs in cases where the child was being cared for by a stepparent. It can also happen when the parents were in a same-sex relationship and the second parent had no biological connection to the child. This is because in many states, biology establishes a person's parental rights to a child; so if there is no blood relation between the person and child and parental rights haven't been established in other ways (e.g. adoption), then the non-biological parent may be denied his or her day in court.

In some cases, there may be ways around these issues. It's best to consult with a personal injury attorney for assistance with putting together a viable case.