Minor Superheroes and Property Ownership

Today’s post will be a fairly quick one.  The topic comes courtesy of Frank, who asks, “Aliens gift the Power Pack children with superpowers, costumes and a sentient robot. Don’t their parents technically own these gifts?”  Perhaps surprisingly, the answer is no.

For well over a century, the common law doctrine has been this:

[A father] has no title to the property of the child, nor is the capacity or right of the latter to take property or receive money by grant, gift or otherwise, except as a compensation for services, in any degree qualified or limited during minority.  Whatever therefore an infant acquires which does not come to him as a compensation for services rendered, belongs absolutely to him, and his father cannot interpose any claim to it, either as against the child, or as against third persons who claim title or possession from or under the infant.  Hoblyn v. Johnson, 55 P.3d 1219, 1228 (Wyo. 2002) (quoting Banks v. Conant, 96 Mass. 497 (1867)).  

As the Hoblyn court explained, “this opinion still provides an accurate statement of the law.”  And it seems to be true in Virginia as well, which is where the group received the gifts.  Midkiff v. Midkiff, 201 Va. 829, 831 (1960) (“the common law is in force in Virginia, except where modified by statute” and “at common law an infant was entitled to his own property rights”).  Since the costumes and the sentient robot / spaceship were given as gifts, the children do indeed own them.

Now, you may have heard of the Uniform Gifts to Minors Act or the related Uniform Transfers to Minors Act.  The former covers deposit accounts, securities, and insurance; the latter covers property more generally.  These model laws, which have been adopted in many states, including Virginia, allow for property to be given to minors but held by a custodian until the minor reaches the age of majority (21 in the model version of the Acts, 18 in Virginia’s version).  VA Code Ann. § 31-37.  The primary purpose of the Acts is to avoid the hassle and expense of setting up trusts, not to allow gifts to be given that otherwise couldn’t be nor to be the only way to give a minor a gift.  Furthermore, in order to be a gift under the Acts, the gift has to be given in a particular way that specifically invokes the Act.  So if Aelfyre Whitemane wanted to give the costumes and robot to the children but didn’t think they could be trusted with them until they reached adulthood, the UTMA would be one way to accomplish that.  Even so, the custodian need not necessarily be the children’s parent but could be basically any competent adult who agreed to take on the job.

So to sum up: there are a lot of potential issues with superpowered minors, but gadget-based minor superheroes (and villains) can legally own their gadgets independently of their parents or guardians.

20 responses to “Minor Superheroes and Property Ownership

  1. Melanie Koleini

    The Power Pack children’s parents didn’t know about the packs but what could they do if they did know? Could a parent force a minor child to refuse a gift or return it?

    • From a functional perspective yes, a parent could probably make their own child return something. From a legal perspective I don’t think the parent could get a court to force the kid into any kind of specific performance for a gift they are given.

      • In general this is true, but there is a statutory exception for real estate in Virginia under Va. Code § 8.01-68:

        “Circuit courts in the exercise of their equity jurisdiction, upon being satisfied by competent evidence independent of the admissions in the pleadings or elsewhere in the proceedings, that one or more of the types of relief hereinafter specified will promote the interest of an owner of land, or any interest therein, who is a person under a disability as defined in this chapter for whom a conservator has not been appointed pursuant to Chapter 10 (§ 37.2-1000 et seq.) of Title 37.2, and taking into consideration the rights of any other party interested in such land, may order the sale, exchange, lease, encumbrance, redemption, or other disposition of such real estate as to the court may seem just and equitable.

        In the case of the sales of such lands or interest therein, the court shall be governed by the established practices for judicial sales generally except as they may be specifically modified by provisions of this article.”

        The statute refers to “a person under a disability,” but that includes minors. Va. Code § 8.01-2 (the statute says “infants” but that’s a somewhat archaic term for anyone who isn’t an adult; it’s not limited to young children).

        Essentially, this allows a parent to petition a court to allow the sale of land owned by a child. Of course, none of the gifts given to the Power Pack were real estate, so it doesn’t apply here, but one could imagine a minor superhero being given a secret base or the like.

      • Melanie Koleini

        Are there legal exceptions made for gifts that cost mony to mantain? If a child is given a horse can a parent force the kid to give it back without calling the humane socity and reporting their kid for animal neglect?

      • It’s interesting you raise the example of a horse. The Hoblyn case is about a horse given to a child by her grandfather. Basically, the parents kept the horse when the child was moved to another state, and the child demanded return of the horse. The court held:

        “Despite the general rule, parents do retain property rights in certain items they provide their children for the purpose of support, maintenance, or education such as clothing and books. It is uncontroverted the daughter’s paternal grandfather gave the horse to her as a gift, the horse was titled in her name, and it was not necessary for her support or maintenance. As a matter of law, the horse belonged to the daughter, and the parents had no implied authority over it simply because of their proprietary interest in the premises on which it was located.” Hoblyn at 1228.

        So from that case the answer would appear to be no, absent a specific statutory exception allowing the sale or return of the property. “As a general rule, a minor child may acquire and own property in his or her name alone, and a parent lacks authority to sell the minor child’s interest in property except as provided by law.” Kubatzky v. Ramada Inns, Inc., 632 S.W.2d 73 (Mo. Ct. App. E.D. 1982).

  2. Wait, so does this mean that if a parent punishes a child by taking the child’s toys away, that’s actually theft?

    And getting back to fantasy worlds, what if it’s something the child finds rather than being given? In Ben 10, 10-year-old Ben Tennyson found the Omnitrix in the woods. And it was later revealed that it was created for his grandfather Max, but it fell into Ben’s possession by mistake. But it was stuck on Ben’s wrist and he couldn’t remove it. That could be a legal quagmire when it comes to determining ownership rights. (Although I don’t think Max ever tried to assert his own claim over the Omnitrix, once Ben had proven his skill with it.)

    • Wait, so does this mean that if a parent punishes a child by taking the child’s toys away, that’s actually theft?

      Theoretically, yes, as long as the toys were gifts given to the child by someone else (i.e. not the parents). I doubt a prosecutor would actually take up the case, but a child could sue for conversion or trespass to chattels. Of course, the child would 1) have to know of the legal theory 2) be willing to sue, with all of the negative consequences of that 3) be able to afford a lawyer and 4) be able to find a lawyer who would take the case.

      While it might seem crazy to think of a child being able to sue in such a case, consider that a lot of countries have banned corporal punishment of children, including spanking by parents. There are several justifications for this, but one of them is that children have rights much like adults, including the right to be free of violence, even from their parents. If we take the notion of children’s property rights seriously, then that includes prohibiting parents from taking away their property as punishment, just as they can’t hit them as punishment.

      Of course, that doesn’t mean that a judge couldn’t find away around the (theoretical) rule. For example, a judge could hold that a gift given to a child was actually given to the parents for the child’s benefit. Thus, the child doesn’t have a property right; the gift is merely made available to the child at the parents’ pleasure. This approach would give a court flexibility when dealing with very young children whose toys are taken away versus a more serious case like an older child who had, say, a computer used for educational purposes taken away and used by a parent for their own purposes. The latter case starts to look a lot more like theft / conversion.

      what if it’s something the child finds rather than being given?

      Then I think the same rules that apply to other kinds of found property would apply (previously discussed here). We’d need more facts to address the Ben 10 case, but I think what would happen is either a) Ben has a rightful claim to the Omnitrix because, e.g., it was abandoned and his uncle has no claim or b) his uncle has a rightful claim, but the court couldn’t order specific performance because the Omnitrix was attached to Ben, so at most it could order Ben to compensate his uncle for the loss under a theory of unjust enrichment, even if Ben did not intend for the Omnitrix to attach to him.

  3. OK, so property of the minor is not the property of the person with parental authority over the minor, so the parent can’t convert or dispose of the property against the wishes of the minor, but can’t the parent, under the natural authority of parenthood, sequester the child’s assets? For example, if a 12-year-old is given (say, by inheritance) a car, the parent can certainly deprive the child of the use of the car until they obtain a driver’s license and suitable insurance. Or where you have a film star who is a minor, some of their salary may be held in trust by the parents until the child achieves majority, to prevent dissipation.
    So, if the Power parents were to learn of the… unusual… possessions of the Power children, the parents could seize and sequester them, holding them in trust until the children achieve majority. (Here I speak of legal actions… as a practical matter, the Power children could probably easily overpower the parents and take anything they wanted back with little difficulty.)

    • TimothyAWiseman

      @James Pollock, I am interested in seeing an answer from someone with more knowledge then I have, but I think you are right.

      Generally, simply depriving someone of an item for a limited time is the tort of trespass to chattels (for a longer time, it could turn into conversion). However, there is a privilege of discipline which can be invoked to justify and permit torts against someone with which you have certain types of authority over. It can arise in parent-child relationships, but also the captain of a ship somewhat away from traditional authorities can invoke it under the right circusmtances. Generally, the question seems to be whether the discipline was reasonable under the circumstances.

      Taking away toys for a limited time in response to an actual infraction is probably “reasonable”. To borrow the example James Daily used in his earlier answer, taking away something more substantial, like a computer, and turning it to your own use for an extended (even wth the cover of an actual infraction) would probably not be reasonable. But of course, that is very often left to the jury and juries can be very fickle in determining what is reasonable.

  4. For a civil lawyer this has been my greatest source in grasping the concept of common law – Thank you 🙂

    As a token of appreciation, I have nominated you for “The Versatile Blogger Award” here:


  5. And yet, if the Power Pack kids were to receive reward money or to be hired by the government to use their abilities, their parents could legally retain 85% of their earnings, according to the Coogan Act, unless they were emancipated. Perhaps a hi-tech clubhouse would come in handy. But then, they couldn’t buy property as minors, could they? Or would the problem only be with renting property?

    • The Coogan Act is inapplicable, because the Power children don’t reside in California and (unless you’re being meta) aren’t employed in the entertainment business.

      • I see you’re right – the parents can retain 100% of their earnings. Though if they were living in California, they might expect 15% of the profits from their comic book…

        However, I think we’re missing the point here. The parents may not own the gifts, such that they could take them away from the kids. But they could force them to use their powers by signing them up to an entertainment contract (for which they would receive all profits) and making them perform, a popular route for talented individuals like Annie Oakley, sharpshooter, and Captain America, and who can forget King Kong?

  6. There’s also probably some subsequent legal questions about any taxes due as a result of the gifts.

    Not to mention some weirdness as to the extent that the superpowers themselves are being “gifted” — are those actually recognizable as “property” under the law? And (shades of ST:TNG’s “The Measure of a Man”) I(AmNotALawyer) imagine there could be some severe issues with the ownership of a sentient robot under the Thirteenth Amendment.

    • We don’t think superpowers can be regarded as property (although it makes an interesting thought experiment). They were mentioned in the question, but the analysis was limited to the costumes and the robot.

      As for the Thirteenth Amendment: so far only humans (i.e. Homo sapiens sapiens) count as people, legally-speaking. So far the courts take the view that legal rights could be conferred upon non-humans (i.e. rights possessed by the non-human, not legal protections like making animal cruelty a crime), but it would take an express act of Congress at a minimum. See Cetacean Community v. Bush, 386 F.3d 1169 (9th Cir. 2004).

      • And children are counted as somewhere betweeen humans and non-humans, legally speaking.

      • Superpowers as property brings to mind a couple of tangents, Rogue (who can steal superpowers, potentially permanently) and Leech (who cancels superpowers out). Rogue’s theft of superpowers might be actionable as consequential damages of a battery, since she has to touch someone to effect a transfer, Leech only has to be nearby.

        As to the thirteenth amendment, I’m going to stretch a little and refer to the curious case of Mr. Ed. Mr. Ed was a horse (of course) but a thinking, talking horse. He would have failed half of the sentience test from classic SF novel Little Fuzzy (i.e., talk and build a fire) but he was demonstrably able to pass the Turing test for artificial intelligence. Nevertheless, Mr. Ed remained the property of Wilbur and nobody seems to have thought this at all remarkable. Perhaps legal and social attitudes have changed since the world was all black & white like it was in Mr. Ed’s day, but I don’t think things have changed that much.

      • Looks like you’ve already covered the property questions pretty thoroughly in the past; sorry, I’m still making my way back through the archives.

        For the 13th Amendment question, I suspect it might make a difference (at least in practice, though perhaps not in law) if the non-human plaintiff also demanded to argue pro se before the court.

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