§ 19-7-1.In whom parental power lies; how such power lost; recovery for homicide of child or unborn child

This section starts with the basic rule. Until a child turns 18 or becomes emancipated, the child stays under the control of his or her parents, and the parents are entitled to the child’s services and earnings. Once a court awards custody to one parent, only that parent holds those rights.

Subsection (b) lists nine ways a parent loses parental power: a voluntary contract releasing the right to a third person; consent to the child’s adoption by a third person; failing to provide necessaries or abandoning the child; consenting to let the child keep his own earnings (a consent the parent may revoke at any time); consenting to the child’s marriage; cruel treatment; a conviction for the murder or voluntary manslaughter of the child’s other parent; a superior court order terminating parental rights in an adoption case under Chapter 8; and a superior court order terminating the rights of the legal father, or of a biological father who is not the legal father, in a legitimation, paternity, divorce or custody case. That last ground requires that termination be in the child’s best interest, and it does not apply when the child was adopted, was conceived by assisted reproduction as described in § 19-7-21(a), or came from an adopted embryo under Article 2 of Chapter 8.

Subsection (b.1) governs custody fights between parents, or between a parent and a grandparent, great-grandparent, aunt, uncle, great aunt, great uncle, sibling or adoptive parent. The judge may award custody to that relative if, in the court’s sound discretion and considering all the circumstances, the award is in the child’s best interest and will best promote the child’s welfare and happiness. The law presumes that custody with the parent or parents serves the child best, but the relative may overcome that presumption by showing that custody with the relative is in the child’s best interest. The child’s best interest is the only question. Someone outside that list of relatives may look to the equitable caregiver statute, § 19-7-3.1.

Subsection (c) makes sure someone can always recover the full value of a child’s life when the child is killed, either under this section or under Chapter 4 of Title 51. For an unborn child, that right begins once a detectable human heartbeat, as defined in § 1-2-1, is present. If the child leaves no spouse or child, the claim belongs to the parents: jointly if they live together and are not divorced, to the survivor if one parent has died, and to both if they are divorced, separated or living apart. In that last case, if one parent refuses to proceed or can’t be found, the other may hire a lawyer for both and sue for both. The judgment is split equally unless either parent moves before trial to have the judge apportion it; the judge then holds a hearing after judgment and weighs each parent’s relationship with the child, including permanent custody, control and support. If an absent parent’s share goes unpaid for two years after the recovery, the parent who brought the case may petition for it. A child’s birth out of wedlock is no bar, and if no parent holds the claim, § 51-4-5 decides who does. The section was last amended in 2025.