When mom and dad are both minors (under 18) and they have a newborn it can make for a potentially confusing situation when it comes to who signs contracts and model releases for a newborn session. One important legal reality to note is that having a baby does not mean minor is automatically emancipated.
This clarification is significant because if you are an emancipated minor, you can sign contracts in your own name and are responsible for living up to the contract.
So let’s be clear that this article is addressing the more complex situation where you have unemancipated minor parents of a newborn.
As we have talked about in this post about contracts and model releases (in the context of former minors), there are specific rules about unemancipated minors signing contracts.
A contract is a best practice for all sessions, but the second question to ask is whether you need a model release for the shoot?
It is helpful to have a matrix for making this decision for your business and having a standardized policy that you and any staff follow. In developing that matrix, there are a couple of helpful questions to begin with: Is it going to be used commercially? Are you going to use it as part of your advertising or promotion? If the answer is yes to either of these questions, you will definitely need a model release.
As mentioned earlier, to reaffirm, in the situation of emancipated minor parents they can sign the contract and model release in their own stead. In the situation of unemancipated minor parents, ideally, you will have the adult parent or guardian of the minor parent sign the release for the newborn child of the minor parent.
The reason why this is important as a photographer, is to protect yourself because a contract signed only by a minor without the knowledge of their parents is voidable, which could leave you subject to legal action, the legal cost associated, and potential restitution if the court finds against you.
Let’s break down the term “voidable” before we go any further. Voidable means that the contract can be invalidated. When it comes to contracting with a minor (someone under 18), the general rule is that such a contract is voidable by the minor.
Minors are believed to inherently lack the “capacity to contract” unless there is specific evidence to the contrary or follows a specific exception by the courts. What this means is that a minor can, in accordance with the specific requirements and allowances in each state, choose to say they don’t want to be bound the contract, even after all aspects of it have been fully executed by all parties.
So, a minor parent wanting to bound by a contract, and for your protection as a photographer, should have their (the minor parent’s) parent or guardian co-sign the contract, as well as a witness (an assistant or employee is suitable) who can attest that the minor parents and their parents actually signed the contract. This might mean you are not able to communicate this particular kind of contract through electronic means. You may want to sign hard copy, in person.
The model release of images of the newborn child of minor parents is somewhat more complex, this is because the signors need to have the legal authority and capacity to exercise “informed consent” to make the release for use of the image of the child. In the case of a contract, the minor parent’s parents are co-signing (and affectively approving) a contract that the minor parent is entering into. In the case of a model release, there is one extra layer, and that is that the newborn is the minor that the contract relates to and the minor parent would (if they were 18) be the one to sign as parent/guardian. In this case, you may want to draft a specific model release for minor parents, where there is an additional signature block for the parent/guardian of the minor parent. This is slightly more complex than just a guardian or agent over the age of 18 to sign on behalf of the newborn – although that could be an option if they have additional documentation to demonstrate that there is a formal legal relationship between the newborn and the parent/guardian/agent of the minor parent.
Just as in the situation of the session contract, It is likely still helpful to have the minor parents also sign. You could, if it is a session where there is a significant amount of money involved consider requesting a copy of a legal appointment of an agent for the newborn (this could be a power of attorney or guardian ad litem appointment), but this is unlikely to be necessary in the majority of situations.
You could also very easily make a decision to allow an unemancipated minor parent to sign a contract and model release for their newborn child’s photographic session without a guardian cosigning, however you will need to be aware that this contract and model release would be voidable at any time prior to that minor parent turning 18 (or in some states up to 6 months later) and could be successfully voided by the Courts even after they turn 18.
In short, what you should do to protect yourself legally may require additional steps beyond what you might have intuited. There are definitely ways you can provide an incredible service and experience for minor parents who want you to capture memories for their family and of their newborn – it’s just helpful to take some precautions and be organized to prevent issues down the line.
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