Ed. note: This is the latest installment in a series of posts on motherhood in the legal profession, in partnership with our friends at MothersEsquire. Welcome Afshan Paarlberg to our pages.
I can pinpoint the moment that contract law became alive and well in our home. I bring to you the unaltered facts (note: Some facts and circumstances may have been changed or exaggerated for demonstrative purposes).
It was April 8, the day following my youngest daughter’s birthday. My eldest child, herein referred to as the defendant, was beaming with pride over the acquisition of Legos, toys, and unopened birthday presents. My youngest daughter, aka the birthday girl and herein referred to as the plaintiff, held a single stick of gum. Had there been some sort of exchange? Both parties were alive and smiling, seemingly satisfied. Only moments later came the deafening screams accompanied by the urgent plea for justice. “Mama!” they cried in unison.
Now, normally I might have internally rolled my eyes, exhaled deeply, and proceeded to break up another fight. But something was different this time. Words from my dusty contracts book began swirling in the air. Exchange of goods? Agreement? Meeting of the minds? This was classic textbook stuff! I rolled up my sleeves. Lawyer mom was to the rescue.
For child-rearing tactics, I had historically cracked open parenting magazines. I practiced the 1–2–3 step solutions, never managing to make it onward to those extra credit origami crafts. In fact, I rarely made it past step one because the suggested calm, whispering voice quickly escalated to yelling when nobody could hear me. No, this time I was headed for a crash course in contracts. I sensed my six-figure education was soon to finally pay off!
A quick refresher. When does a contract become legally enforceable? Both parties must consciously intend to enter the agreement. There must also be consideration, something of value offered between both parties. An offer made must be accepted. Both parties also establish a psychic connection; they undergo an out-of-body experience as their minds high-five each other in the air. You might instead hear it referred to as a “meeting of the minds.” There’s also an issue of capacity — you can’t be mentally impaired or a minor.
I was still excited to embrace contractual principles — although not quite legally enforceable — to solve problems between my minor children. Satisfied children and long-lasting peace treaties? Equity and justice under our own roof? I was sold, on my own idea.
Now let’s continue to unpack how this all went down. I first physically separated the plaintiff and the defendant, ignoring all allegations and plain-view evidence of assault. The contract was the singular matter at hand. A criminal tribunal would handle the other matters. I seated the parties on opposite sides of the hallway — an impartial venue. Then, I gave the plaintiff and defendant an opportunity to make each of their cases.
There was no four-cornered document to reference. So I proceeded onward to any oral agreements. There had also been no witnesses to the incident. The middle sister did extend support to both parties. However, she was promptly dismissed for offering inadmissible character testimony. Neither plaintiff nor defendant had personal phones or emails, leaving no trace of written messages to examine.
Unsurprising to any parent out there, two wildly different stories emerged about “the agreement,” giving indication that there was no meeting of their minds. But, key details also surfaced. First, testimonies corroborated that without the exchange, the plaintiff would be excluded from future games. Could this be a threat? What would a reasonable 4-year-old have done under the circumstances? Second, the gum had a bite mark in it. Did gum come with an implied warranty of being unchewed? Finally, would any child in their right mind trade new birthday presents for gum? I suppose we all know the answer to that question.
The holding in Paarlberg v. Paarlberg is that the verbal contract was void ab initio on the basis of duress (i.e., the threat of exclusion). Since the contract never happened, all items were returned to the original owners. The most important result came with policy changes. Any future exchange of goods or services between minors must be accompanied by a written, enforceable contract, notarized by a parent and written in pen, crayon, or marker. Pencil can be easily tampered with when nobody’s looking — and I know my children. All disputed matters are resolved before the non-notary parent. As for record-keeping, ours have a one-week shelf life, after which the shredder is fair game. Typically, the traded items are long missing under a forgotten pile of toys by then.
Feeling pumped? Diplomacy, fair negotiations, and contracts have minimized the bickering in our home. The opportunity to reflect on the fairness of decisions before making a promise can go a long way. We still have the odd fight when exchanges are not reduced to writing. But, thoughtfulness now underlies most of these child-centered decisions. So before you encounter the next outburst, give your lawyer magic a try. You might be pleasantly surprised.
My original efforts at telling this story can be found at https://medium.com/i-taught-the-law.
Afshan Paarlberg is a mission-driven lawyer, writer, and strategist. Passionate about human rights, she is currently conducting research at the intersection of philanthropy, marginalized communities and policy. She is known for her expertise in immigration law and all-things nonprofits. She can be reached at afshanpaarlberg@gmail.com.
Jordan Rothman is a partner of 
