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Q: My son wants to ride an ATV at a local sports park. He brought home a form for me to sign. The form states on behalf of my son I release the park from liability for anything that might happen to my son. The park will not let my son ride without the release. If I sign the release, is it enforceable?

A: Parents may generally make decisions concerning their children without governmental interference. This right is protected by the United States and Florida Constitutions.

The United States Supreme Court confirmed that the interest of parents in the care, custody and management of their children is a fundamental liberty interest protected in the Constitution in the 1982 case of Santosky v. Kramer.

The Florida Supreme Court confirmed this right on numerous occasions. In 1996, the Court struck down a statute providing grandparent visitation as a violation of the fundamental rights of parents. Florida courts have reaffirmed the privacy and liberty rights of a parent in raising a child requiring that parental rights be terminated only if the State can show convincing evidence that reunification of parent with the child poses a substantial risk of significant harm to the child. As the courts have noted, parental decision making authority is a fundamental liberty and privacy right protected by the Constitution. However, it is not without limits and can be ended where the child is harmed.

Parental decision making authority extends to virtually all aspects of a child’s life, including medical care, application for insurance or participation in various activities. This authority has usually been extended to releases signed in connection with even dangerous activities. In Global Travel Marketing, Inc. v. Shea a release was referenced by the Florida Supreme Court. In that case, a child was killed while traveling on an African safari with his mother. The issue was not whether a release was binding, but whether the travel agreement signed by the parent, containing a requirement for arbitration instead of suit, was binding on behalf of the minor child. The Florida Supreme Court held that an arbitration agreement incorporated in a commercial travel contract is enforceable against the minor or the minor’s estate in a law suit arising from injuries related to the contract. However, the court specifically stated that it was not asked and therefore offered no opinion as to whether the release was enforceable.

In 2004, the Third District Court of Appeal was asked if a release signed by the parent of a minor was enforceable. In that case, a child participated in a school sponsored program which simulated fire-rescue training. The child’s parent signed a release of liability against the City of Coral Gables. The child was injured, but the court held the release enforceable as the activity was a common place community or school supported activity.

A few years later, the Federal Court for Florida’s Southern District considered a release. In the Federal case, a parent signed a release so that a child could ride jet-skis while on a commercial Caribbean cruise. The child was injured. The court reviewed the Florida cases and found that the cases enforcing releases involved common place, community or school activities. The jet-ski case involved a private activity provided by a for-profit business. The Federal Court held the release unenforceable under those circumstances.

The most recent Florida decision involving release signed by a parent for a minor child was that of the Fourth District Court of Appeal in Fields v. Kirton. The Fields case reviewed various Florida decisions. The court noted the private commercial exception to general enforceability of releases in the jet-ski case but also discussed the enforceability of releases in other cases, including those involving medical care decisions.

The court opined that there is no basis in common law for a parent to waive substantive rights of a child without court approval. It noted that Florida statutes allow natural guardians to settle claims for damages on behalf of their minor child without court approval if the amount does not exceed $15,000. If more than $15,000, settlement requires court involvement. If more than $25,000, settlement requires a court-appointed guardian as well as determination by the court that the settlement is in the best interest of the child.

The court noted that there is no comparable statutory scheme governing pre-injury releases signed by a parent on behalf of the minor child. The court explained that if the legislature wanted a parent to have such authority, the legislature would adopt a statute. Since no statute exists, a pre-injury release signed by a parent on behalf of a minor child is unenforceable.

The Fields case involved an ATV used by a child at an ATV park. Although the activity appears to have been a private commercial enterprise, the court did not hang its hat on that aspect of the facts. Its decision was much broader.

The Fields court recognized its decision was in conflict with a case from the Fifth District Court of Appeals. In that case, the Fifth District upheld a release where a child was injured riding a “pocket bike” and the parent signed a release. The court in Fields certified conflict and requested that the Florida Supreme Court settle the issue.

This is an area in which Florida law is evolving. Authority of a parent to sign releases has been rejected in two areas, but not by the Fields Supreme Court. In the first, an exception was made where a release was for a private commercial activity. In the second, the exception swallowed the rule as the Fields court held parents do not have authority to waive substantive rights for their children at all.

Because of uncertainty in this area, no simple answer can be given to your question. The Florida Supreme Court may settle the issue in the future, but the trend appears to be toward ruling that such releases are unenforceable.

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William G. Morris is a lawyer with offices at 247 N. Collier Blvd., Marco Island. The column is not intended to be legal advice for specific circumstances. General questions can be sent by e-mail to wgmorrislaw@earthlink.net or by fax to (239) 642-0722. Read other columns at http://www.wgmorris.com.