Remember, a well-crafted parenting plan promotes consistency, stability, and positive family relationships for your child.
If you are looking for agencies or non-profits that may help with a case, check out the Minding Hearts Resource List. You can also find some information on parental rights by scrolling down to the parental rights section on that page. but remember that laws vary by states.
When creating a parenting plan is essential to consider what is best for the child or children. Understand the child’s best interest, address legal issues and physical custody, seek legal assistance, make transportation arrangements, and communication rules, consider who the child should and should not be around, and any future changes that may have to be made.
Parental Rights….. Below is a list of state laws and case studies for each state that may be helpful. The list of state statutes and policies comes from the child welfare information gateway, parentalrights.org, and other legislative research and may need to be updated at times:
Alabama State Law
At Risk: Alabama does not have a state statute that explicitly defines and protects parental rights as fundamental rights.
2016: HB112 proposing a parental rights amendment to the Alabama Constitution of 1901, was introduced by Rep. Matt Fridy with 12 cosponsors on Feb. 3. It was assigned to the House Judiciary Committee; no further action was taken.
2015: SB135 was introduced by Sen. Sanford on March. 3, 2015, to preserve the fundamental right of parents to direct the upbringing, education, and care of their child. It passed the Senate Health Committee on April 15 by a 5-1 vote. Companion bill HB213 was introduced by Rep. Butler with 18 cosponsors on March 10. It was scheduled for a hearing in the House Judiciary Committee on April 1, but was not voted on in committee.
2014: SB 203, a statute to preserve fundamental parental rights, was introduced by Sen. Sanford on January 15, 2014. The bill died in committee.
Alaska Alaska Courts Alaska State Law
At Risk Alaska does not have a state statute that explicitly defines and protects parental rights as fundamental rights.
“Strict Scrutiny” Applied to Parental Rights
In Treacy v. Municipality of Anchorage, 91 P.3d 252 (Alaska 2004), the Alaska Supreme Court held, citing Meyer v. Nebraska, 262 U.S. 390 (1923), “that parents have a fundamental right to control the upbringing of their children.” (at 268) The court found that “[b]ecause the municipality’s interest is sufficiently compelling, and because the ordinance presents the least restrictive alternative for meeting all of its stated goals,” it met the “strict scrutiny standard” and therefore did not violate that fundamental right. (at 269)
Arkansas Parental Rights Bills…
Arkansas does not have a state statute that explicitly defines and protects parental rights as fundamental rights. Arkansas does have various laws on the books that are supportive of parental rights.
https://parentalrights.org/states/ar
Bill seeks to put Arkansas fathers and mothers on equal footing in custody disputes by Matthew MershonTuesday, February 19th 2019
https://katv.com/…/bill-seeks-to-put-arkansas-fathers…
2017 Arkansas Code Title 9 – Family Law Subtitle 3 – Minors
Chapter 27 – Juvenile Courts and Proceedings Subchapter 3 – Arkansas Juvenile Code § 9-27-370. Reinstatement of parental rights https://law.justia.com/…/subchapter-3/section-9-27-370/
and then Connie Reguli there were some recent bills that just passed a few months ago that i think are important….These are the laws that I wanted you to see that passed through Arkansas. I posted them in Family Forward Arkansas (April 12 thru 14 i think). I’m going to be busy for the next couple of months pulling something together. I’m still here though.
State Rep Gazaway 800 West Court Street Paragould, PHONE 870-215-1243 Big Questions about HB 1608 and 1609 Gazaway bills 1608 and 1609 Looks SCARRY to me https://www.arkleg.state.ar.us/Bills/FTPDocument… and https://www.arkleg.state.ar.us/Bills/FTPDocument… Regarding Wards of the State
By: Representative Gazaway AN ACT TO AMEND THE LAW CONCERNING THE OPPORTUNITY TO BE HEARD IN CERTAIN HEARINGS HELD UNDER THE ARKANSAS JUVENILE CODE OF 1989; TO AMEND THE DEFINITION OF “PARENT” UNDER THE ARKANSAS JUVENILE CODE OF 1989; AND FOR OTHER PURPOSES. https://www.arkleg.state.ar.us/Bills/FTPDocument…
State Rep Gazaway 800 West Court Street Paragould, PHONE 870-215-1243 Big Questions about HB 1608 and 1609 Gazaway bills 1608 and 1609 Looks SCARRY to me https://www.arkleg.state.ar.us/Bills/FTPDocument… and
https://www.arkleg.state.ar.us/Bills/FTPDocument… Regarding Wards of the State
By: Senators D. Wallace, G. Leding, By: Representatives Gazaway, Wing, Dalby, For An Act To Be Entitled AN ACT TO BE KNOWN AS THE “JUSTICE FOR VULNERABLE, VICTIMS OF SEXUAL ABUSE ACT”; AND FOR OTHER PURPOSES. https://www.arkleg.state.ar.us/Bills/FTPDocument…
Gazaway… All parents and custodians have a right to counsel in all dependency-neglect proceedings. https://www.arkleg.state.ar.us/Bills/FTPDocument…
Ballinger and Underwood SB589 – CONCERNING THE MODIFICATION OF A CHILD CUSTODY OR VISITATION ORDER. https://www.arkleg.state.ar.us/Bills/Detail?id=Sb589…
By: Representative C. Fite,By: Senator Rice, An Act To Be Entitled AN ACT CONCERNING ATTORNEY AD LITEM PROGRAMS; TO AMEND THE LAW CONCERNING GUARDIANS AD LITEM AND ATTORNEYS AD LITEM; AND FOR OTHER PURPOSES. The Director of the Administrative Office of the Courts is authorized to establish attorney ad litem programs to represent children in guardianship cases in circuit court when custody is an issue.
https://www.arkleg.state.ar.us/Bills/FTPDocument…
Arizona Arizona State Law
Protected We did it! Thanks in part to your support, Arizona law now explicitly protects parental rights.
Ariz. Rev. Stat. § 1-601:
A. The liberty of parents to direct the upbringing, education, health care and mental health of their children is a fundamental right.
B. This state, any political subdivision of this state or any other governmental entity shall not infringe on these rights without demonstrating that the compelling governmental interest as applied to the child involved is of the highest order, is narrowly tailored and is not otherwise served by a less restrictive means.
July 2018: A law now limits the situations in which children can be removed from their parents without a court order. It remains to be seen, though, if the law will indeed help limit needless removals.
Arizona Courts Protected Under Statute
While in Jackson v. Tangreen (2000), the Court of Appeals of Arizona found that “Troxel cannot stand for the proposition that [a state visitation statute] is necessarily subject to strict scrutiny,” the newer Ariz. Rev. Stat. § 1-601 explicitly requires strict scrutiny review.
Jackson v. Tangreen, 18 P.3d 100, 106 (Ariz. Ct. App. 2000):
“Troxel cannot stand for the proposition that [a state visitation statute] is necessarily subject to strict scrutiny” because “only Justice Thomas would have applied strict scrutiny to the statute in Troxel” and “[n]one of the other five opinions explicitly stated the level of scrutiny that it applied.”
Legal aid association of California
California State Law and Parental Rights
At High Risk! California law does not protect parental rights as fundamental rights. We are actively working in California to prevent further loss of parental rights.
California Family Code § 3105:
(a) The Legislature finds and declares that a parent’s fundamental right to provide for the care, custody, companionship, and management of his or her children, while compelling, is not absolute. Children have a fundamental right to maintain healthy, stable relationships with a person who has served in a significant, judicially approved parental role.
(b) The court may grant reasonable visitation rights to a person who previously served as the legal guardian of a child, if visitation is determined to be in the best interest of the minor child.
(See also sections 3102, 3104)
California Education Code §§ 51938–39 require parental notification and allow parental opt-out for sex education.
The California Supreme Court’s ruling in re Marriage of Harris 96 P.3d 141, 149, 151 (Cal. 2004) deprives custodial parents of their constitutional rights to deny grandparent visitation if a non-custodial parent supports it.
In Fenn v. Sheriff, 1 Cal. Rptr. 3d 185, 201 (Cal. Ct. App. 2003), the CA Court of Appeals found that, in light of Troxel, California Family Code § 3102 allows the court to order grandparent visitation against the wishes of fit parents.
Colorado Colorado State Law and Parental Rights
Col. Rev. Stat. § 13-22-107(1)(a)(III):
(1)(a) The general assembly hereby finds, determines, and declares it is the public policy of this state that: . . . (III) Parents have a fundamental right and responsibility to make decisions concerning the care, custody, and control of their children. The law has long presumed that parents act in the best interest of their children. . . .
Col. Rev. Stat. § 13-22-107(1)(a)(III) expressly declares parental rights “fundamental,” which may lead to strict scrutiny protection the next time the issue comes up in the courts.
In re Reese, 227 P.3d 900, 902-3 (Colo. Ct. App. 2010) the Colorado Court of Appeals adopted a “rebuttable presumption” in favor of parental visitation determinations, which can be rebutted by “clear and convincing evidence that the parent is unfit or that the parent’s visitation determination is not in the best interests of the child,” id. at 903; the rebuttable presumption is employed because Troxel did not “state how the presumption affects the proof process or how courts must accord special weight to it,” id. at 902.
Connecticut State Law and Parental Rights
At Risk! Connecticut does not have a state statute that explicitly defines and protects parental rights as fundamental rights.
Connecticut Courts and Parental Rights
At Risk (Strict Scrutiny Not Applied)
Leebaert ex rel. Leebaert v. Harrington, 193 F. Supp. 2d 491, 498 (D. Conn. 2002):
“Supreme Court precedent is less clear with regard to the appropriate standard of review of parental rights claims. However, the Second Circuit has concluded that a parental rights challenge to a school’s mandatory community service requirement warranted only rational basis review…Troxel does not establish a different rule requiring strict scrutiny of parental challenges to educational policies of public schools.”
Delaware State Law and Parental Rights
At Risk! Delaware does not have a state statute that explicitly defines and protects parental rights as fundamental rights.
Delaware Courts and Parental Rights
At Risk!
Wilson v. Div. of Family Servs., 988 A.2d 435, 442–43 (Del. 2010):
“Although the interest of natural parents in the care and custody of their children is a fundamental right protected by the due process clause of the Fourteenth Amendment (Santosky v. Kramer, 455 U.S. 745, 753, 102 S.Ct. 1388, 71L.Ed.2d 599 (1982)), a termination of parental rights proceeding differs from a criminal proceeding in many respects…. This Court has recognized that ‘a termination of parental rights proceeding does not require the level of due process mandated in a criminal proceeding.’ (Farley v. Dept. of Servs. For Children, Youth, Their Families, 2000 WL1862231, at 1 (Del.Dec. 15, 2000).)”
Florida
Florida State Law and Parental Rights
At Risk
Florida does not have a state statute that explicitly defines and protects parental rights as fundamental rights.
Florida’s Proceedings Relating to Children can be found here.
Florida Courts and Parental Rights
“Strict Scrutiny” Applied to Parental Rights
N.B. v. Florida Department of Children and Families (Florida 3rd District Court of Appeal, 2016):
“When a statute impinges on a fundamental liberty interest, such as parenting ones child, we must analyze the constitutionality of the statute under a strict scrutiny standard. Fla. Dep’t of Children & Families v. F.L., , 607 (Fla. 2004) ‘To withstand strict scrutiny, a law must be necessary to promote a compelling governmental interest and must be narrowly tailored to advance that interest.’ State v. J.P., 907 So. 2d1101, 1109 (Fla. 2004).”
Georgia
Georgia State Law and Parental Rights
Not Explicitly Defined and Protected
Georgia does not have a state statute that explicitly defines and protects parental rights as fundamental rights.
The Official Code of Georgia Annotated § 19-7-1 details Georgia law regarding parental authority.
O.C.G.A. § 19-7-1 (b. [***8] 1) establishes a rebuttable presumption that parental custody is always in the child’s best interest.
Clark v. Wade, 544 S.E.2d 99, 104 (GA. 2001): “In considering the constitutionality of the Georgia statute on parent-third party custody disputes, there are two relevant lines of cases. One involves the termination of parental rights, which have usually required a showing of parental unfitness before ending the parent-child relationship.[27] The other involves third-party visitation rights, which have historically considered the best interests of the child.”
Hawaii
Hawaii State Law and Parental Rights, At Risk
Hawaii does not have a state statute that explicitly defines and protects parental rights as fundamental rights.
Hawaii Courts and Parental Rights
“Strict Scrutiny” Applied to Parental Rights
In Doe v. Doe 172 P.3d 1067, 1077, 1079 (Haw. 2007), the Hawaii Supreme Court applied the strict scrutiny standard on behalf of parental rights in a grandparent visitation dispute.
Iowa:
Iowa State Law and Parental Rights
At Risk Iowa does not have a state statute that explicitly defines and protects parental rights as fundamental rights.
Iowa Courts and Parental Rights
“Strict Scrutiny” Applied to Parental Rights
The Iowa Supreme Court has consistently recognized that “the right to direct the upbringing of one’s children, is fundamental,” and “state action infringing on that interest must be narrowly tailored to serve a compelling state interest.” Spiker v. Spiker, 708 N.W.2d 347, 351 (Iowa 2006).
However, this precedent is subject to change.
Idaho State Law and Parental Rights
Protected We did it! Thanks in part to your support, Parental rights are protected as fundamental rights requiring strict scrutiny review under H0113, passed in 2015, which amended several sections of Idaho law to include these rights. Chapter 10, Title 32 of Idaho law was amended to include 32-1013, which provides (in part) that:
“Neither the State of Idaho, nor any political subdivision thereof, may violate a parent’s fundamental and established rights protected by this act, and any restriction of or interference with such rights shall not be upheld unless it demonstrates by clear and convincing evidence that the restriction or interference is both:
“(a) Essential to further a compelling governmental interest; and
“(b) The least restrictive means available for furthering that compelling governmental interest.”
In addition, ParentalRights.org helped to pass S 1293, a Senate bill that gives parents whose children attend public schools a meaningful amount of leverage when they ask a public school to treat their child a bit differently than others. The bill was signed by the governor on March 23, 2016.
Idaho Courts and Parental Rights
Affirming, and Protected Under Statute
Leavitt v. Leavitt, 132 P.3d 421, 427 (Idaho 2006):
“This liberty interest, encompassing a parent’s right to determine with whom his or her child may associate, is entitled to equally heightened protection in the visitation rights context. Given such a fundamental right, we conclude the clear and convincing standard of proof applies to actions brought under I.C. § 32-719.”
Illinois State Law and Parental Rights
At Risk Illinois does not have a state statute that explicitly defines and protects parental rights as fundamental rights.
Illinois Courts and Parental Rights
“Strict Scrutiny” Applied to Parental Rights
In re R.C., 745 N.E.2d 1233, 1241 (Ill. 2001), the court held that because “the Court [in Troxel] reiterated that a parent’s right to control the upbringing of his or her children is a fundamental constitutional right,” the court “must employ strict scrutiny, and determine whether [the statute] is necessary to a compelling state interest and narrowly tailored thereto”.
However, this precedent is subject to change.
Indiana State Law and Parental Rights
At Risk Indiana does not have a state statute that explicitly defines and protects parental rights as fundamental rights.
Indiana Code Ann. § 31-14-13-2 lays out the best interests of the child factors considered in custodial determination.
Indiana Code 31-14-13-4, regarding the authority of the custodial parent, says: Except as otherwise provided in an order by a court, the custodial parent may determine the child’s upbringing, which includes education, health care, and religious training, unless the court determines that the best interests of the child require a limitation on this authority.
Indiana Code 31-17-5 contains the Grandparent visitation statute. A grandparent may seek visitation only if (1) the child’s parent is deceased; (2) the child’s parents are divorced; or (3) the child was born out of wedlock, but only if the child’s father has established paternity. And the trial court may grant visitation if it determines that “visitation rights are in the best interests of the child.”
Indiana Code § 20-33-7-2 entitles both parents to direct access to their child’s school records.
Indiana Code §§ 16-39-1-7 and 16-39-2-9 entitles both parents to direct access to their child’s medical records and mental health records.
In 2014, proposed Senate Bill 100 (SB 100) would have mandated the recognition of fundamental parental rights in Indiana. The bill also called for “strict scrutiny” protection in any court case where parental rights are implicated. However, the bill was not passed.
Indiana Courts and Parental Rights
At Risk Indiana court decisions over the past decade have been centered on principles set forth by the U.S. Supreme Court in Troxel v. Granville. The confused legacy of Troxel affords some deference to the rights of parents without guaranteeing their protection under the strict scrutiny standard.
Crafton v. Gibson, 752 N.E.2d 78, 92 (Ind. Ct. App. 2001) affirmed an earlier decision which used the flimsy “rational basis ” scrutiny to evaluate a grandparent visitation statute because “the Supreme Court in Troxel did not articulate what standard would be applied in determining whether nonparental visitation statutes violate the fundamental rights of parents.”
In McCune v. Frey, 783 N.E.2d 752, 757–59 (Ind. Ct. App. 2003), the Indiana Court of Appeals soon distilled the Troxel plurality’s principles into four factors that a grandparent-visitation order “should address”:(1) a presumption that a fit parent’s decision about grandparent visitation is in the child’s best interests (thus placing the burden of proof on the petitioning grandparents);(2) the “special weight” that must therefore be given to a fit parent’s decision regarding nonparental visitation (thus establishing a heightened standard of proof by which a grandparent must rebut the presumption);(3) “some weight” given to whether a parent has agreed to some visitation or denied it entirely (since a denial means the very existence of a child-grandparent relationship is at stake, while the question otherwise is merely how much visitation is appropriate); and(4) whether the petitioning grandparent has established that visitation is in the child’s best interests.
Re K.I, 903 N.E.2d 453, 462 (Ind.2009) made consideration of these principles mandatory.
Re K.I, 903 N.E.2d 453, 462 (Ind.2009): The parent comes to the table with a “strong presumption that a child’s interests are best served by placement with the natural parent.” The burden of proof is always on the third party to prove by clear and convincing evidence “that the child’s best interests are substantially and significantly served by placement with another person.” [Court citing B.H., 770 N.E.2d at 287 (Ind. 2002)]
In Re Visitation of M.L.B, 983 N.E.2d 583 (Ind. 2013)the Indiana Supreme Court found that the trial court failed to make any express findings on the first two factors set forth in McCune, namely the presumption of parental fitness and the “special weight” due to fit parents’ decisions. These factors are “key to a constitutionally appropriate balance between a natural parent’s fundamental rights and a child’s best interests — and without findings reflecting that balance, a grandparent-visitation order is not constitutionally permissible.” Thus, “despite the trial court’s ample ‘best interests’ findings, the lack of findings on the other three factors, both standing alone and as compounded by the extensive visitation awarded without those necessary findings, violates Mother’s fundamental right to direct M.L.B.’s upbringing.”
Kansas State Law and Parental Rights
Protected We did it! Thanks in part to your support, Kansas law now explicitly protects parental rights.
Kan. Stat. Ann. § 38-141
(b) It shall be the public policy of this state that parents shall retain the fundamental right to exercise primary control over the care and upbringing of their children in their charge. It is further the public policy of this state that children shall have the right to protection from abuse and neglect.
The Kansas Preservation of Religious Freedom Act passed in 2013 fleshes out what the fundamental rights of parents include.
Kansas Statute Article 53 § 60-5303 Exercise of religion; burden of proof; remedies.
“(a) Government shall not substantially burden a person’s civil right to exercise of religion even if the burden results from a rule of general applicability, unless such government demonstrates, by clear and convincing evidence, that application of the burden to the person:
“(1) Is in furtherance of a compelling governmental interest; and
“(2) is the least restrictive means of furthering that compelling governmental interest.”
Kansas Statute Article 53 § 60-5305 Construction of act.
“(a) Nothing in this act shall be construed to:
“(1) Impair the fundamental right of every parent to control the care and custody of such parent’s minor children, including, but not limited to, control over education, discipline, religious and moral instruction, health, medical care, welfare, place of habitation, counseling and psychological and emotional well-being of such minor children as set forth in the laws and constitution of the state of Kansas and of the United States.”
Kansas Courts and Parental Rights
Protected Under Statute
The Kansas Supreme Court, citing the Troxel ruling, only demands the ambiguous Troxel test.
Skov v. Wicker v. Boydston, 272 Kan 240 (2001):
“[T]he district court must give some special weight to the fundamental presumption that a fit parent will act in the best interests of his or her child” (emphasis added).
It is to be expected, however, that the religious freedom statute of 2013 that calls for fundamental parental rights to be protected by strict scrutiny will lead to a different outcome in Kansas courts the next time the issue comes up.
Kentucky State Law and Parental Rights
At Risk Kentucky does not have a state statute that explicitly defines and protects parental rights as fundamental rights.
Kentucky Rev. Stat. § 620.010 outlines recognized rights of children, and further recognized that “upon some occasions, in order to protect and preserve the rights and needs of children, it is necessary to remove a child from his or her parents.”
Kentucky Courts and Parental Rights
Lacks Strict Scrutiny
Kentucky courts have precedent in favor of parental rights, but lack a solid precedent of fundamental parental rights demanding strict scrutiny protection.
In Vibbert v. Vibbert, 144 SW 3d 242 (Ky. App. 2004) the Kentucky Supreme Court affirmed that “a fit parent has a superior right, constitutionally, to all others in making decisions regarding raising of his or her children, including who may and may not visit them. A fit parent’s decision must be given deference by the Courts, and Courts considering the issue must presume that a fit parent’s decision is in the child’s best interest.” This falls short of the strict scrutiny standard, however.
In Walker v. Blair,the Kentucky Supreme Court used the “best interest” standard rather than strict scrutiny.
In accordance with Troxel, we hold that a fit parent is presumed to act in the best interest of the child. A grandparent petitioning for child visitation contrary to the wishes of the child’s parent can overcome this presumption of validity only with clear and convincing evidence that granting visitation to the grandparent is in the child’s best interest. In determining the child’s best interest, the trial court can turn to the factors in the modified best interest analysis, which we outline in this opinion.
Louisiana State Law and Parental Rights, At Risk Louisiana Children’s Code Article 101 supports parental rights and family privacy. However, Louisiana does not have a state statute that explicitly defines and protects parental rights as fundamental rights.
Louisiana Courts and Parental Rights
Strict Scrutiny Protection Not Firmly Established
While Louisiana courts have established a precedent of respecting parental rights to a considerable degree, their status as “fundamental rights” demanding of “strict scrutiny” protection is not firmly established.
Maine State Law and Parental Rights
At Risk Maine does not have a state statute that explicitly defines and protects parental rights as fundamental rights.
LD 472 (2017) would have put into black and white that the rights of parents are fundamental and deserve the protection of strict scrutiny; however, the bill did not pass.
Maine Courts and Parental Rights
“Strict Scrutiny” Applied to Parental Rights
Maine courts have a precedent of protecting parental rights as fundamental rights receiving strict scrutiny protection. This precedent is based in part on the US Supreme Court’s Troxel ruling, which means Maine’s standard could change to reflect Troxel’s lower standard of review, but so far no erosion seems to have taken place. However, this precedent is subject to change.
In Rideout v. Riendeau, 761 A.2d 291, at 299-300 (2000), the Maine Supreme Court held that, based on the U.S Supreme Court’s Troxel ruling, the due process clause “provides heightened protection against state intervention in parents’ fundamental right to make decisions concerning the care, custody, and control of their children… [which] mandates strict scrutiny.”
In re Guardianship of David C., 10 A.3d 684, 686 (Me. 2010), the Maine Supreme Court stated the following:
We have, however, “consistently recognized, absent a showing of unfitness, parents’ fundamental liberty interest with respect to the care, custody, and control of their children.” Guardianship of Jewel M., 2010 ME 80, ¶ 6, 2 A.3d 301, 303-04; Guardianship of Jewel M., 2010 ME 17, ¶ 12, 989 A.2d 726, 729; Guardianship of Jeremiah T., 2009 ME 74, ¶ 27, 976 A.2d at 962; Rideout v. Riendeau, 2000 ME 198, ¶ 18, 761 A.2d 291, 299; see also Troxel v. Granville, 530 U.S. 57, 65-66, 69, 72, 120 S. Ct. 2054, 147 L. Ed. 2d 49 (2000). (emphasis added)
Maryland State Law and Parental Rights
At Risk Maryland does not have a state statute that explicitly defines and protects parental rights as fundamental rights.
Maryland Courts and Parental Rights
“Strict Scrutiny” Applied to Parental Rights
McDermott v. Dougherty, 869 A.2d 751, 808-9 (Md. 2005) Adopted a balancing test where “the constitutional right [of parents] is the ultimate determinative factor; and only if the parents are unfit or extraordinary circumstances exist is the ‘best interest of the child’ test to be considered.”
Koshko v. Haining, 921 A.2d 171, 186-87 (Md. 2007) held that because “the grant or modification of visitation involves a lesser degree of intrusion on the fundamental right to parent than the assignment of custody,” such grants or modifications “require rigorous scrutiny,” id. at 186; notwithstanding Troxel, the court noted that it typically “reserve[es] strict scrutiny review only for cases where fundamental rights have suffered “significant interference,” but because there was “significant interference” with a fundamental right in this particular case, the court employed strict scrutiny, (id. at 187.)
However, this precedent is subject to change.
Massachusetts State Law and Parental Rights
Not Explicitly Defined and Protected
Massachusetts does not have a state statute that explicitly defines and protects parental rights as fundamental rights.
Massachusetts Constitution Amendment XVIII (Section 4) states that no child who is an inmate of any institution shall be compelled to attend religious services or receive religious instruction without the consent of his parent.
Mass. Gen. Laws ch. 71, § 32A requires parental/guardian notification when a school implements sex education curriculum, and allows for penalty-free exemption.
The Massachusetts grandparent visitation statute is found in ALM GL ch. 119, § 39D. It allows a grandparent to seek visitation only if (1) either or both of the child’s parents are deceased; (2) the child’s parents are divorced; or (3) the child was born out of wedlock and the parents are not living together, but only if the child’s father has established paternity (in the case of paternal grandparents.) The trial court may grant visitation if it determines that “visitation rights would be in the best interests of the minor.”
“Strict Scrutiny” Applied to Parental Rights
In Blixt v. Blixt, 774 N.E.2d 1052, 1057 (Mass. 2002) the MA Supreme Court recognized that “a parent’s liberty interest in child rearing is indeed fundamental” and that “when a fundamental right is at stake, the so-called ‘strict scrutiny’ formula for examining the constitutionality of State infringement on that right comes into play.” The court ruled that the MA grandparent visitation statute was constitutional by interpreting it in a narrowly tailored way to further a compelling state interest in disrupted homes. However, this precedent is subject to change.
Michigan State Law and Parental Rights
Protected
Michigan law explicitly protects parent’s rights as fundamental rights.
Mich. Comp. Laws Ann. § 380.10
It is the natural, fundamental right of parents and legal guardians to determine and direct the care, teaching, and education of their children. The public schools of this state serve the needs of the pupils by cooperating with the pupil’s parents and legal guardians to develop the pupil’s intellectual capabilities and vocational skills in a safe and positive environment.
Mich. Comp. Laws. Ann. § 380.1507 requires parental notification and allows parental opt-out for sex education.
SB 420 was introduced by Sen. Phillip Pavlov in May of 2017, passed the legislature on February 21, 2018, and was signed by Governor Rick Snyder on March 15, 2018. Two provisions in the new law will help parents who come into contact with “the system.” Read about this Michigan win for families.
Michigan Courts and Parental Rights
Protected
In re A.P., 770 N.W.2d 403, 412 (Mich. Ct. App. 2009):
“[D]ue process precludes a government from interfering with parents’ fundamental liberty interest in making decisions regarding the care, custody, and control of their children absent a compelling state interest,” citing Troxel, 530 U.S. at 65-66
Minnesota State Law and Parental Rights
At Risk
Minnesota does not have a state statute that explicitly defines and protects parental rights as fundamental rights.
March 2018: Some Minnesota lawmakers introduced a bill (S.F. 3779) to try to address disproportionality in CPS (see this Parental Rights Foundation report for disproportionality information by state).
Minnesota Courts and Parental Rights
“Strict Scrutiny” Applied to Parental Rights
Soohoo v. Johnson, 731 N.W.2d 815, 821 (Minn. 2007): The MN Supreme Court held that even though “the Supreme Court in Troxel did not articulate the standard of review to be applied when reviewing third-party visitation statutes . . .Strict scrutiny is the appropriate standard of review when fundamental rights are at issue.”
However, this precedent is subject to change.
Mississippi State Law and Parental Rights, At Risk
Mississippi does not have a state statute that explicitly defines and protects parental rights as fundamental rights.
Legislative efforts 2017: MS HC2 (Rep. Moore) was an attempt to protect parental rights in the Mississippi Constitution. It was sent to the Constitution Committee, but was not passed out.
Legislative efforts 2014: SB 2199 (Sen. Fillingane) was an effort to preserve parental rights in Mississippi statutory law. It was referred to the Senate Judiciary Committee (Division A) on Jan. 10, 2014, but was not passed out.
Legislative efforts 2013: HB 496 (Rep. Chris Brown), SB 2650 (Sen. Fillingane), and HC 90 (Reps. Brown & Formby) were all efforts to protect parental rights at the state level. HB 496 passed committee but was halted before the House on a technicality. SB 2650 stalled in the Senate Judiciary committee. HC 90 passed the House by a vote of 101-11, but stalled in the Senate Rules committee.
Miss. Code Ann. § 93-16-3 is Mississippi’s grandparent visitation statute.
It applies only to grandparents.
It applies only in cases of death or termination of parental rights.
It applies only when the grandparent has “established a viable relationship with the child,” the parent has “unreasonably denied the grandparent visitation rights with the child,” and visitation would be in the child’s best interests.
Miss. Code Ann. § 37-13-173 requires parental notification and allows parental opt-out for sex education in the public schools. See also Miss. Code Ann. § 41-79-5(10).
Miss. Code Ann. § 37-23-137(2): “If the parent of a child with a disability refuses consent for the evaluation, the local educational agency may continue to pursue an evaluation by utilizing the due process hearing procedures under IDEA, except to the extent these are not in conflict with Mississippi law relating to parental consent.”
Miss. Code Ann. § 41-41-53 requires parental consent before a minor can get an abortion, subject to judicial bypass.
Miss. Code Ann. § 41-42-7 allows doctors to give contraceptive supplies and information to unmarried minors without parental consent when the minor is referred to the doctor by “another physician, a clergyman, a family planning clinic, a school or institution of higher learning, or any agency or instrumentality of this state or any subdivision thereof.”
Mississippi Courts and Parental Rights
“Strict Scrutiny” Applied to Parental Rights
However, this precedent is subject to change.
Smith v. Wilson, 90 So. 3d 51 (Miss.2012):
“Mississippi’s grandparent-visitation statute is narrow, allowing grandparents (not any person) to seek visitation only under certain circumstances.” In addition, the “factors set forth in Martin [v. Coop] specifically prohibit a Chancellor from ordering visitation which would interfere with a parent’s right to rear his or her children.” Therefore, Mississippi’s grandparent-visitation statute is distinguishable from the Washington statute truck down in Troxel and is not unconstitutional.
“But unfitness is not required to award grandparent visitation.” Id. at 60.
D.M. v. D.R., 62 So. 3d 920 (Miss.2011):
Granville held that “a state statute regulating visitation rights must meet strict scrutiny before interfering with a parent’s right to control a child’s upbringing.”
In all cases involving child custody, including modification, the polestar consideration is the best interest and welfare of the child.
Generally, it is presumed that the best interests of the child are served by remaining in the custody of the natural parent.
Biological mother was not entitled to the natural parent presumption, in child custody modification proceeding in which paternal grandparents had been awarded custody of child; mother forfeited her right to the natural parent presumption when she voluntarily relinquished custody of child and allowed maternal grandparents to adopt child, and the deaths of maternal grandparents did not “reinstate” mother’s parental rights to child.
Woodell v. Parker, 860 So. 2d 781 (Miss.2003):
Mississippi’s grandparent visitation statute is constitutional.
Adoptive parents are not entitled to the Troxel presumption.
Pruitt v. Payne 14 So. 3d 806 (2009Miss.App):
There is a general presumption that a parent who is fit will act in the best interest of his or her child; a court must accord some special weight to a fit parent’s determination of a child’s best interests.
Parents with custody have a paramount right, protected by the Due Process Clause, to control the environment, physical, social, and emotional situations to which their children are exposed.
Generally, a court will not grant visitation rights to grandparents or third parties over the objection of a fit custodial parent.
In Mississippi, a finding of unfitness is necessary to award custody to a third party over a natural parent.
Missouri State Law and Parental Rights
At Risk
Missouri does not have a state statute that explicitly defines and protects parental rights as fundamental rights.
Legislative Efforts 2017: Rep. Kurt Bahr pre-filed HB 354, a parental rights legislation, in December of 2016; it was read for the first time on January 4th. On March 8, it passed out of the House Judiciary Committee 9-1 and is now in the Rules Committee. Thank you for your continued support!
Legislative Efforts 2016: HB1755, a statute to protect parental rights at the state level, was pre-filed by Rep. Kurt Bahr on Dec.11. The bill passed the House Civil and Criminal Proceedings Committee (Feb. 24) and the House Judiciary Committee (Mar. 9), but did not pass the entire House.
Legislative Efforts 2015: HB557 was introduced by Rep. Kurt Bahr passed the House Civil & Criminal Proceedings Committee (8-0) and the House Judiciary Committee (7-3) on its way to passage by the full House with a bipartisan majority (120-33) on April 16. It passed the Senate Judiciary Committee (6-0, 1 absent) on Apr. 29 but again failed to get a floor vote in that chamber. Sen. Wieland introduced companion bill SB 562 on Mar. 2.
Legislative Efforts 2014: HB 1488, a bill to preserve fundamental parental rights in statutory law, was introduced by Rep. Bahr and Sen. Ed Emery. It passed the House for the second straight term, but again failed to pass the Senate.
Legislative Efforts 2013: Rep. Kurt Bahr and Sen. Ed Emory introduced a parental rights statute, HB513. It passed the House (122-22) and the Senate committee, but the session ended before a senate floor vote could be taken.
Missouri Courts and Parental Rights
At High Risk!
The Missouri Supreme Court has interpreted Troxel to mean that parental rights are not entitled to protection under the strict scrutiny standard.
Cannon v. Cannon, 280 S.W.3d 79, 86 (Mo. 2009) (in a marriage dissolution proceeding regarding child custody, the court described Troxel as holding that “while a parent’s interest in his or her children is entitled to ‘heightened protection,’ it is not entitled to ‘strict scrutiny’”.
Weigand v. Edwards, 296 S.W.3d 453, 458 (Mo. 2009) (applying a balancing-of-interest test to a statute governing modification of custody because “the Supreme Court utilized a balancing-of-interests standard in the context of a grandparent visitation statute” and “decided to leave the determination of the propriety of particular statutes to a case-by-case analysis”).
Montana State Law and Parental Rights
At Risk!
Montana does not have a state statute that explicitly defines and protects parental rights as fundamental rights.
Mont. Code Ann. § 40-4-227:
(1) It is the policy of the state of Montana:
(a) to recognize the constitutionally protected rights of parents and the integrity of the family unit;
(b) to recognize a child’s constitutionally protected rights, including all fundamental rights unless those rights are specifically precluded by laws that enhance their protection; and
(c) to ensure that the best interests of the child are met in parenting proceedings.
(2) The legislature finds:
(a) that while it is in the best interests of a child to maintain a relationship with a natural parent, a natural parent’s inchoate interest in the child requires constitutional protection only when the parent has demonstrated a timely commitment to the responsibilities of parenthood; and
(b) that a parent’s constitutionally protected interest in the parental control of a child should yield to the best interests of the child when the parent’s conduct is contrary to the child-parent relationship.
Mont. Code Anno., § 40-4-228 (5):
It is not necessary for the court to find a natural parent unfit before awarding a parental interest to a third party under this section.
Montana Courts and Parental Rights
“Strict Scrutiny” Applied to Parental Rights
However, this precedent is subject to change.
Kulstad v. Maniaci, 220 P.3d 595, 542 (Mont. 2009): The MT Supreme Court upheld strict scrutiny protection to parental rights. “‘The liberty interest at issue in this case—the interest of parents in the care, custody, and control of their children—is perhaps the oldest of the fundamental liberty interests recognized by this Court.’ Troxel. Thus, this statute (§ 40-4-228, MCA) is subject to strict scrutiny review.”
Nebraska State Law and Parental Rights, At Risk
Nebraska does not have a state statute that explicitly defines and protects parental rights as fundamental rights.
June 2018: A bill that will “prohibit courts from denying legal or physical custody of children based upon the disability of one of the parents” was signed into law.
April 2018: A Nebraska bill that would possibly have allowed schools to submit children to mental health screenings without first notifying parents was successfully vetoed.
Nebraska Courts and Parental Rights
Unclear
Parental rights are affirmed as fundamental rights deserving of strict scrutiny in Nebraska Supreme Court case precedent, but contrary court precedent also exists. The state of parental rights in Nebraska’s courts, therefore, is unclear.
Hamit v. Hamit, 715 N.W.2d 512, 527 (Neb. 2006) (holding that even though Troxel “refrained from announcing the level of scrutiny it was applying,” “we conclude that given the fundamental nature of the parental rights that are claimed to have been intruded upon by the grandparent visitation statutes, a strict scrutiny level of analysis is appropriate”).
Douglas County v. Anaya, 694 N.W.2d 601, 607 (Neb. 2005) (“It is true that “the custody, care and nurture of the child reside first in the parents.” However, the Court has never held that parental rights to childrearing as guaranteed under the Due Process Clause of the 14th Amendment must be subjected to a strict scrutiny analysis. See Troxel. “[T]he Supreme Court has yet to decide whether the right to direct the upbringing and education of one’s children is among those fundamental rights whose infringement merits heightened scrutiny.” Pierce and Yoder do not support an inference that parental decision-making requires a strict scrutiny analysis”) (internal citations omitted).
New Hampshire State Law and Parental Rights
At Risk
New Hampshire does not have a state statute that explicitly defines and protects parental rights as fundamental rights.
New Hampshire RSA 461-A:6 outlines determination of parental rights and responsibilities; as well as the factors evaluated in decided best interest of the child.
RSA 461-A:11 governs the modification of parental rights and responsibilities.
RSA 461-A:13 establishes grandparent visitation rights.
RSA 461-A:16 establishes the guidelines for appointing a guardian ad litem for children involved in proceedings regarding parental issues.
New Hampshire Courts and Parental Rights
“Strict Scrutiny” Applied to Parental Rights
However, this precedent is subject to change.
Re R.A., 891 A.2d 564, 576 (N.H. 2005) (plurality) “As parental rights are fundamental and protected by due process, strict scrutiny should be applied when examining statutes dealing with these rights.”
New Jersey State Law and Parental Rights, At Risk
New Jersey does not have a state statute that explicitly defines and protects parental rights as fundamental rights.
Senate bill 2100 (proposed in 2014) and Assembly bill 4234 (proposed in 2015) would have corrected this, but neither bill passed.
New Jersey Courts and Parental Rights
“Strict Scrutiny” Applied to Parental Rights
However, this precedent is subject to change.
Moriarty v. Bradt, 827 A.2d 203, 214–15 (N.J. 2003)
“Summing up, when the State seeks, by statute, to interfere with family and parental autonomy, a fundamental right is at issue. That statute thus is subject to strict scrutiny and will only pass muster if it is narrowly tailored to serve a compelling state interest.” (citing Washington v. Glucksberg, 521 U.S. 702, 720-21; and Roe v. Wade, 410 U.S. 113, 155-56.)
New Mexico State Law and Parental Rights
At Risk! New Mexico does not have a state statute that explicitly defines and protects parental rights as fundamental rights.
New Mexico Courts and Parental Rights
At High Risk!
Precedent from the New Mexico Court of Appeals favors best interest of the child without affording parents the protection of strict scrutiny standard.
In re Guardianship of Victoria R., 201 P.3d 169, 173, 177 (N.M. Ct. App. 2008), the NM Court of Appeals affirmed a trial court’s decision to award guardianship of a child to “psychological parents,” to whom the mother had voluntarily given placement of the child, because evidence of potential psychological harm to the child overcame the presumption in favor of the biological parent, id. at 177; the court did not employ strict scrutiny, noting that “only Justice Thomas, in a concurring opinion, relied upon a fundamental rights-strict scrutiny analysis” and that “some authorities, noting that only Justice Thomas expressly relied upon textbook fundamental rights-strict scrutiny analysis, have read Troxel as moving away from the rigid strict scrutiny mode of analysis of state legislation that impinges on parents’ control over the upbringing of their children,” (id. at 173 n. 4).
Williams v. Williams, 50 P.3d 194, 200 (N.M. Ct. App. 2002) affirmed an order of visitation, over the objection of the parents, based solely on statutory factors including the best-interest of the child with no apparent presumption in favor of the parents’ decision; “We agree with Parents that, as a general proposition, Troxel does require courts to give special consideration to the wishes of parents, and appropriately so. However, we do not read Troxel as giving parents the ultimate veto on visitation in every instance. Troxel may have altered, but it did not eradicate, the kind of balancing process that normally occurs in visitation decisions.”
Nevada State Law and Parental Rights, Protected
We did it! Thanks in part to your support, Nevada law now explicitly protects parental rights.
In 2013, the Nevada legislature adopted Nevada Rev. Stat. Ann. § 126.036, to protect fundamental parental rights at the state level.
Senate Bill 314 was sponsored by Sen. Mo Denis. It passed the Senate unanimously on April 22 and the House by a 27-14 vote (1 excused) on May 24. It was signed into law by the Governor June 5.
Section one of the bill reads as follows:
The liberty interest of a parent in the care, custody and management of the parent’s child is a fundamental right.
Nevada Courts and Parental Rights
“Strict Scrutiny” Applied to Parental Rights
Existing court precedent in Nevada already affirms parental rights.
In Rico v. Rodriguez, 121 Nev. 695, 704, 120 P.3d 812, 818 (2005) (citing Troxel v. Granville, 530 U.S. 57, 65 (2000) (plurality opinion), the Nevada Supreme Court affirmed that parents have a “fundamental interest’ . . . in the care, custody, and control of their children.”
In addition, in In re J.L.N., 118 Nev. 621, 625, 55 P.3d 955, 958 (2002), the Nevada Supreme Court held that “[s]tatutes that infringe upon [the fundamental right of parents to care for and control their children] are . . . subject to strict scrutiny and must be narrowly tailored to serve a compelling interest.” Therefore, in order to “terminate a parent’s rights, a petitioner must prove, by clear and convincing evidence, that termination is in the child’s best interests and that there is parental fault.” Id. (quoting In re N.J., 116 Nev. 790, 801, 8 P.3d 126, 133 (2000)).
New York State Law and Parental Rights, At Risk!
New York does not have a state statute that explicitly defines and protects parental rights as fundamental rights.
2017-2018: A7821, authored by Rep. Woerner (D- Round Lake) and the matching S6402 authored by Sen. Marchione (R- 43rd), constitute a rare and exciting opportunity to make gains for parental rights in New York. These bills would make changes to New York’s grandparent visitation statute to ensure the presumption that parents make decisions in the best interests of their children, to limit the instances when grandparents or other third parties have standing to sue for visitation, and to provide for courts to require those who file suit under false pretenses to pay the court costs. As of July 2018, the bills are still in committee.
New York Courts and Parental Rights
At High Risk!
In their interpretation of Troxel, New York courts have denied parental rights the protection of the strict scrutiny standard.
Nicholson v. Williams, 203 F. Supp. 2d 153, 245 (E.D. N.Y. 2002) The Court noted that “[t]he plurality [in Troxel] apparently saw no need to vocalize a standard of review,” and that “[u]nderstandably, the Supreme Court and other courts have hesitated to apply strict scrutiny mechanically and invariably to government legislation and policy that infringes on familial rights. Even as it has recognized the sanctity of familial rights, the Court has always acknowledged the necessity of allowing the states some leeway to interfere sometimes.”
Price v. New York City Bd. Of Educ., 855 N.Y.S.2d 530, 542 (N.Y. App. Div. 2008) (holding that “even if we were to hold that a fundamental liberty interest is at stake [because of a school rule prohibiting students from having cell phones], we would not apply strict scrutiny” because “there is no clear precedent requiring the application of strict scrutiny to government action which infringes on parents’ fundamental right to rear their children” given that Troxel “did not articulate any constitutional standard of review”)
North Carolina State Law and Parental Rights, At Risk!
North Carolina does not have a state statute that explicitly defines and protects parental rights as fundamental rights.
2015-16: HB 847 was introduced April 14 by Rep. Jordan. It passed the House (115-2) in the first (2015) session, but it was never taken up by the Senate.
2013-14: A parental rights statute (H 711) was introduced in 2013 and passed the House (102-2). The Senate Judiciary Committee called for a study committee to report back on the bill in 2015.
North Carolina Courts and Parental Rights
Affirmed as Fundamental, but Strict Scrutiny Not Specified
Col. Rev. Stat. § 13-22-107(1)(a)(III) expressly declares parental rights “fundamental,” which may lead to strict scrutiny protection the next time the issue comes up in the courts.
In re Reese, 227 P.3d 900, 902-3 (Colo. Ct. App. 2010) the Colorado Court of Appeals adopted a “rebuttable presumption” in favor of parental visitation determinations, which can be rebutted by “clear and convincing evidence that the parent is unfit or that the parent’s visitation determination is not in the best interests of the child,” id. at 903; the rebuttable presumption is employed because Troxel did not “state how the presumption affects the proof process or how courts must accord special weight to it,” id. at 902.
North Dakota State Law and Parental Rights
At Risk! North Dakota does not have a state statute that explicitly defines and protects parental rights as fundamental rights. Their laws regarding parents and children are available here.
North Dakota Courts and Parental Rights
At Risk! While the North Dakota Supreme Court applied strict scrutiny to parental rights in the past, since Troxel this standard has become fluid.
In particular, in In Re: S.B., M.B., and B.B. (2014) the court cited Troxel and held parental rights to be fundamental, but did not employ the strict scrutiny test. Instead, it employed the Troxel test word-for-word:
“‘[I]f a fit parent’s decision of the kind at issue here becomes subject to judicial review, the court must accord at least some special weight to the parent’s own determination.’”
This is a departure from previous precedent clearly specifying strict scrutiny.
Hoff v. Berg, 1999 ND 115, 595 N.W.2d 285 (1999)
“Thus, we employ strict scrutiny when analyzing statutory intrusions on parents’ fundamental right to control their children’s associations.”
Ohio State Law and Parental Rights, At Risk
Ohio does not have a state statute that explicitly defines and protects parental rights as fundamental rights.
Ohio Courts and Parental Rights
“Strict Scrutiny” Applied to Parental Rights
Ohio courts have recognized the right of parents to oversee the care of their children as a fundamental right deserving of the strict scrutiny standard. However, this precedent is subject to change.
In Oliver v. Feldner, 776 N.E. 2d 499, 507 (Ohio Ct. App. 2002), the Ohio Court of Appeals held, “[i]t is difficult to escape the conclusion, with eight of nine Supreme Court justices agreeing that a fundamental due process right was at stake in Troxel, that a strict-scrutiny analysis must be taken in reviewing nonparental-visitation statutes.”
See also In re Thompkins, 875 N.E. 2d 582, 584-5 (Ohio 2007) and Harrold v. Collier, 836 N.E. 2d 1165, 1172 (Ohio 2005), cert denied 547 U.S. 1004 (2006).
Oklahoma State Law
Protected by Statute
Thanks in part to your support, Oklahoma’s Parents’ Bill of Rights was signed into law on May 9, 2014.
25 Okl. St. § 2001 and 2002, which establish fundamental parental rights and include details covering several areas of law, were adopted in 2014. House Bill 1384 passed the House (89-3) on Feb. 20, 2014, and the Senate (43-0) on April 14. Amended by the Senate, it returned to the House for a final vote (88-3) on May 6.
Oklahoma Courts
Affirmed, and Protected Under Statute
The Oklahoma Supreme Court in Neal v. Nesvold, 14 P.3d 547, 549 (Okla. 2000) held that proof of harm is required before courts can override the right of parents to make visitation decisions for their children.
Oregon State Law and Parental Rights
At Risk Oregon does not have a state statute that explicitly defines and protects parental rights as fundamental rights.
Oregon Courts and Parental Rights, At High Risk!
Oregon courts have not established a precedent of protecting fundamental parental rights with the strict scrutiny standard of review.
In fact, in his concurring opinion in In re Marriage of Winczewski, 72 P.3d 1012, 1034 (Or. Ct. App. 2003), Chief Justice Deits of the Oregon Court of Appeals pointed out that “The Court in Troxel did not adopt the ‘compelling state interest’ standard and we have expressly rejected that legal standard.”
Pennsylvania State Law and Parental Rights, At Risk
Pennsylvania does not have a state statute that explicitly defines and protects parental rights as fundamental rights.
2019-2020: Rep. James Cox, with 16 cosponsors, introduced HB 508, a bill to protect parental rights, on April 9, 2019. It was referred to the Committee on Children and Youth, and hasn’t moved out for a House vote.
If you’re a PA resident, please call members of committee, especially the chair, Rep. Boback, to vote it out. We also encourage you to call your State Reps. to co-sponser the bill.
2015-16: Rep. Tallman, with 12 cosponsors, introduced HB1512, a bill to protect parental rights, on Aug. 26, 2015. It was referred to the Committee on Children and Youth, but it did not receive a hearing.
Pennsylvania Courts and Parental Rights, “Strict Scrutiny” Applied to Parental Rights
Pennsylvania courts have repeatedly recognized the rights of parents to oversee the care of their children as a fundamental right deserving of the strict scrutiny standard. However, this precedent is subject to change.
In Schmehl v. Wegelin, 927 A.2d 183, 188 (Pa. 2007), the Pennsylvania Supreme Court ruled that “any infringement of such right [parental rights] requires strict scrutiny review to determine whether the infringement is supported by a compelling state interest and if the infringement is narrowly tailored to effectuate that interest,” citing Troxel v. Granville, 530 U.S. 57, at 65.
D.P. v. G.J.P., 2016 Pa. LEXIS 2003 (Pa. Sept. 9, 2016):
“There is no dispute that Section 5325 burdens the right of parents to make decisions concerning the care, custody, and control of their children; that such right is a fundamental one; and that, as such, it is protected by the Fourteenth Amendment’s due-process and equal-protection guarantees. In light of these factors there is also no disagreement that, to survive a due process or equal protection challenge, Section 5325 must satisfy the constitutional standard known as strict scrutiny.
“The basic features of strict scrutiny, relating to whether the governmental action is narrowly tailored to a compelling state interest, are well established.” (Internal citations omitted.)
Rhode Island State Law and Parental Rights At Risk
Rhode Island does not have a state statute that explicitly defines and protects parental rights as fundamental rights.
We are not aware of extant support for fundamental parental rights in Rhode Island courts jurisprudence.
South Carolina State Law and Parental Rights, At Risk
South Carolina does not have a state statute that explicitly defines and protects parental rights as fundamental rights.
South Carolina Courts and Parental Rights
“Strict Scrutiny” Applied to Parental Rights
South Carolina courts have repeatedly recognized the rights of parents to oversee the care of their children as a fundamental right deserving of the strict scrutiny standard. However, this precedent is subject to change.
Key recent cases upholding fundamental parental rights include: State v. Whitner, 732 S.E.2d 861 (S.C. 2012), Marquez v. Caudill, 656 S.E.2d 737 (S.C. 2008), Loe v. Mother, 586 S.E.2d 807 (S.C. Ct. App. 2009), and Camburn v. Smith, 586 S.E.2d 565 (S.C. 2003).
South Dakota State Law and Parental Rights, At Risk
South Dakota does not have a state statute that explicitly defines and protects parental rights as fundamental rights.
South Dakota Courts and Parental Rights, At High Risk
South Dakota’s Supreme Court has held based on the Troxel case that parental rights cases do not require the strict scrutiny standard of review.
In Feist v. Lemieux-Feist, 793 N.W.2d 57, 60–61 (S.D. 2010), the Court wrote, “[W]e do not read Troxel as specifically requiring a finding of parental unfitness in third party visitation or custody cases. As we have noted before, Troxel only requires that ‘special weight’ be given to a fit parent’s determinations regarding her children.”
Tennessee State Law and Parental Rights
Not Explicitly Defined and Protected
Tennessee does not have a state statute that explicitly defines and protects parental rights as fundamental rights.
Tennessee does have numerous laws on the books that provide support to parental rights.
Tennessee Courts and Parental Rights
Affirming
Tennessee courts have repeatedly recognized the liberty of parents to oversee the care of their children as a fundamental right. However, this precedent is subject to change.
In re Angela E., 303 S.W.3d 240 (Tenn. 2010), the Tennessee Supreme Court ruled that the Tennessee Constitution [Art. 1, § 8] gives parents a right of privacy to care for their children without unwarranted state intervention unless there is a substantial danger of harm to the child.
Texas State Law and Parental Rights
Protected
Texas Family Code Sect. 151.003 declares the following:
“A state agency may not adopt rules or policies or take any other action that violates the fundamental rights and duty of parents to direct the upbringing of the parent’s child.”
Texas Courts and Parental Rights
“Strict Scrutiny” Applied to Parental Rights
Texas courts have repeatedly recognized the rights of parents to oversee the care of their children as a fundamental right deserving of the strict scrutiny standard.
In In re Pensom, 126 S.W.3d 251, 254 (Tex. Ct. App. 2003), a Texas Court of Appeals ruled, “Because a fundamental right is implicated here [that is, parental rights], we apply strict scrutiny and will uphold the statute if it is narrowly tailored to serve a compelling government interest,” citing Troxel, 530 U.S. at 79 (Souter, J., concurring) and 80 (Thomas, J., concurring).
Utah:
Utah State Law and Parental Rights
Protected
Utah law provides “that parents retain the fundamental right and duty to exercise primary control over the care, supervision, upbringing, and education of their children. There is a rebuttable presumption that a parent’s decisions are in the child’s best interests.” (Utah Code Ann. Sect. 30-5a-103(1), citing Utah Code Ann. Sect. 62A-4a-201(1))
HB356, passed in 2015, made several amendments to the family code which favor parental rights in minor ways.
SB 65, passed in 2018, made a substantive amendment to the legal definition of “neglect.” Under SB 65, “neglect” explicitly “does not include…permitting a child…to engage in independent activities, including: traveling to and from school, including by walking, running, or bicycling…; engaging in outdoor play; remaining in a vehicle unattended [with exceptions]; remaining home unattended; or engaging in a similar independent activity” (section numbers and formatting omitted). So Utah parents who want to raise independent, responsible adults will no longer be hamstrung by a system that sees every risk as a call for a neglect proceeding. Read about this positive change in Utah law.
Utah Courts and Parental Rights
Affirming, and Protected Under Statute
Because of clear Utah law, Utah courts have a history of upholding the fundamental right of parents to make decisions for their children.
Vermont State Law and Parental Rights, At Risk
Vermont does not have a state statute that explicitly defines and protects parental rights as fundamental rights.
Vermont Courts and Parental Rights
Affirmed, but Strict Scrutiny Not Clearly Established
Vermont courts have a history of recognizing fundamental parental rights but the standard of review may be a subject of confusion.
See for instance Glidden v. Conley, 175 Vt. 111, 115 (Vt. 2003), and Camburn v. Smith, 586 S.E.2d 656 (2003).
Virginia State Law and Parental Rights, Protected
HB1642, by Del. Pogge
Passed 70-30 on 2/5/2013
SB908, by Sen. Reeves
Passed 26-14 on 1/31/2013
Virginia Courts and Parental Rights
Affirmed, and Protected Under Statute
L.F. v. Breit, 736 SE 2d 711 – Va: Supreme Court (2013):
“The relationship between a parent and child is a constitutionally protected liberty interest under the Due Process Clause of the Fourteenth Amendment.7 Troxel v. Granville, 530 U.S. 57, 65 (2000); Wyatt v. McDermott, 283 Va. 685, 692, 725 S.E.2d 555, 558 (2012) (“We recognize the essential value of protecting a parent’s right to form a relationship with his or her child.”); Copeland, 282 Va. at 198, 715 S.E.2d at 19. Indeed, the Supreme Court of the United States has characterized a parent’s right to raise his or her child as “perhaps the oldest of the fundamental liberty interests recognized by this Court.” Troxel, 530 U.S. at 65. Any statute that seeks to interfere with a parent’s fundamental rights survives constitutional scrutiny only if it is narrowly tailored to serve a compelling state interest. McCabe v. Commonwealth, 274 Va. 558, 563, 650 S.E.2d 508, 510 (2007); see also Washington v. Glucksberg, 521 U.S. 702, 721 (1997).”
Washington State Law and Parental Rights, At Risk
Washington does not have a state statute that explicitly defines and protects parental rights as fundamental rights.
Affirmed as Fundamental, Although Strict Scrutiny Not Mentioned
In re Welfare of C.S., 225 P.3d 953, 954 (Wash. 2010):
“¶ 6 A biological parent has fundamental liberty and privacy interests in raising his or her child, and the State can infringe upon those interests only when the parent is endangering the child’s physical or emotional welfare.”
West Virginia State Law and Parental Rights, At Risk, West Virginia law acknowledges parental rights as fundamental in W. Va. Code § 49-1-1(a) and W. Va. Code § 49-6D-2(a) but does not currently provide them explicit protection.
W. Va. Code § 49-1-1(a):
“The purpose of this chapter is to provide a coordinated system of child welfare and juvenile justice for the children of this state that has goals to: . . . (4) Recognize the fundamental rights of children and parents; . . . .”
W. Va. Code § 49-6D-2(a):
“In pursuit of the purposes of this chapter to provide a comprehensive system of child welfare throughout the State which will (1) assure to each child such care and guidance, preferably in the child’s home, as will serve the spiritual, emotional, mental and physical welfare of the child, and (2) preserve and strengthen the family ties wherever possible, while recognizing both the fundamental rights of parenthood and the State’s responsibility to assist the family in providing the necessary training and education of all children, the legislature enacts this article to provide for the protection of the children of this State from abuse and neglect and to provide direction to responsible state officers. This article is enacted in pursuit of the purpose of this chapter and the heretofore expressed intention of the legislature to provide for the removal of a child from the custody of the child’s parents only when the child’s welfare cannot be otherwise adequately safeguarded, and is enacted to secure to a child removed from the family a degree of custody, care and control consistent with the child’s best interests and the other goals of this chapter, as expressed in section one, article one of this chapter.”
Affirming
Subject to change.
In re Willis, 157 W.Va. 225, 207 S.E.2d 129 (1973) (internal citations omitted): “In the law concerning custody of minor children, no rule is more firmly established than that the right of a natural parent to the custody of his or her infant child is paramount to that of any other person. The Supreme Court of the United States has recognized the right to raise one’s children is a fundamental personal liberty guaranteed by the Due Process clause of the Fourteenth Amendment.”
Wisconsin Courts and Parental Rights
At Risk, Wisconsin does not have a state statute that explicitly defines and protects parental rights as fundamental rights.
Affirming
Subject to change.
Barstad v. Frazier, 348 N.W.2d 479 (Wis. 1984), cited in Cynthia H. v. Joshua O. (In re Guardianship of Clive R.O.), 777 N.W.2d 664, 675 (Wis. Ct. App. 2009):
“[A] parent is entitled to custody of his or her children unless the parent is either unfit or unable to care for the *674 children or there are compelling reasons for awarding custody to a third party. Compelling reasons include abandonment, persistent neglect of parental responsibilities, extended disruption of parental custody, or other similar extraordinary circumstances that would drastically affect the welfare of the child. If the court finds such compelling reasons, it may award custody to a third party if the best interests of the children would be promoted thereby.”
Wyoming State Law and Parental Rights, Protected, as of July 1, 2017, parental rights will be protected as a fundamental right. 2017: HB0153, a Parental Rights bill like HB0094 from 2015, was introduced in the House on January 16, 2017. It was sent to the House Minerals, Business, and Economic Development Committee, and passed out of that committee with a 9-0 vote on January 23, 2017. (See “Wyoming Parental Rights Bill Clears Committee” for details.) On Friday, January 27, the Wyoming bill passed the House by a vote of 50 yes, 7 no, and 3 excused. It passed the Senate Judiciary Committee (3-1, with 1 excused), and then passed the Wyoming Senate (25-5) on February 28. It was later signed into law by the governor and will take effect on July 1, 2017. Thank you for your support in helping pass this bill!
Protected Under Statute, 2015: HB0094 was introduced January 13 to preserve by law the fundamental right of parents to direct the upbringing, education, and care of their children. It passed the House Judiciary Committee by a vote of 9-0 on Jan. 24, and the full House by a vote of 59-1 on Jan. 29. It was sent to the Senate the next business day (Feb. 2), but Senate President Phil Nicholas refused to assign it a committee, single-handedly killing the bill.
Wyoming courts have also affirmed parental rights as fundamental, although have not mentioned strict scrutiny.
DJM v. DM (In re SRB-M), 201 P.3d 1115, 1119 (Wyo. 2009):
“[¶18] Our holding in MEO was based in part on the important constitutional principle that a parent has a fundamental right to care for, educate and associate with his or her child. In re MLM, 682 P.2d 982, 990 (Wyo. 1984). The fundamental right of a parent to make decisions concerning the care, custody, and control of his or her children is also recognized by the United States Supreme Court. Troxel v. Granville, 530 U.S. 57, 120 S.Ct. 2054, 147 L.Ed.2d 49 (2000). Given this fundamental right, this Court has not condoned removal of a child from a fit parent. MEO, ¶ 53, 138 P.3d at 1160. ‘Although we have sometimes described the child’s best interests as having ‘constitutional preeminence,’ we have done so in light of an adjudication of neglect or abuse, elevating the child’s interests above the individual claims of the parent.’ Id.”
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Minding Hearts is building advocacy and peer support groups in each state. The groups are created to raise awareness, educate, and advocate for those that might not otherwise be heard. We are here for encouragement, education, and support. We are here to support families and develop resources that maintain family integrity. We look forward to your support.
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