2cornucopias

Parental Rights:The Guardian of Freedom

In 09 Mary Summa, JD on 2013/05/01 at 12:00 AM

By Mary Summa, J.D.

In 2007, soldiers abruptly entered a home in Germany and took a young boy because his mother chose to home-school him.1 In Scotland, in 2009, the government took custody of a couple’s three and four year-old children because a government bureaucrat had deemed the children “too fat.”2 In September 2009, Swedish authorities stopped a plane about to take-off to remove a seven year-old from his parents because they refused to put the boy in a government-run school.3 These events abroad should give every American pause. In many parts of the world today, families are at the mercy of the government.

Research demonstrates that the traditional, intact family is the best environment to raise children. The intact family is also the protector of political freedom. As communities succumb to the power of the government, the family unit serves as the last barrier between freedom and tyranny. Until recent years in this country, the government befriended the family. Correctly, courts have stepped in and protected children from the small minority of parents who have threatened their children’s well-being.

For the vast majority of families, however, courts and legislatures have protected their autonomy and respected the inherent rights of fit parents to raise their own children as they deem appropriate. Yet, as government’s thirst for power and control increases, the family has become a target. If this assault is not confronted and stopped, precious freedoms will be diminished and eventually lost.

What Are Parental Rights?

Parental rights are powers vested in parents to conceive and rear children free from government control. These rights, recognized by the courts, include: the right to the custody and care of minor children, the right to establish a child’s residence, and the right to direct a child’s moral and spiritual upbringing, education, and medical treatment.

With these rights, come responsibilities, and parents are charged with the responsibility to educate, discipline, support, and protect their minor children.4 These powers emanate from the family—the basic unit of society—which historians and anthropologists believe has existed in every known human society.5 The family is not a creation of government.6

English Common Law adhered to the belief that marriage and family are institutions established by God. Therefore, rights emanating from that institution—parental rights—are natural rights that government was obliged to protect. Parental decision-making was limited by the State only in cases where the parent placed the child in clear and present danger, a strictly interpreted doctrine called the Parens Patriae Doctrine.7

Throughout colonial America, only fathers could enforce these rights. Fathers retained the custodial rights of children, and mothers had little authority to enforce custody or other parental rights.8 In 1944, with the Supreme Court’s decision in Prince v. Massachusetts,9 parental rights were recognized for both the mother and the father. Those rights, as the court recognized, “reside first in the parents, whose primary function and freedom include preparation for obligations the state can neither supply nor hinder.”10

The family is not a creation of government.

America’s History – Protecting Parental Rights

Traditionally, the U.S. Congress and state legislatures have restrained themselves from trampling on the right of fit parents to rear children free from government control11 When they did stray from this basic tenet, the Supreme Court struck down these laws as unconstitutional. The Court has protected family autonomy and parental rights as being guaranteed by the Ninth Amendment12 and the Due Process Clause and Equal Protection Clause of the 14th Amendment13 to the U.S. Constitution. The courts have recognized that the right to conceive and rear children is a “basic civil right of man,”14 and a right “far more precious … than property rights.”15

In the early to mid 20th Century, the Supreme Court vigilantly protected the right of parents to educate their children as the parent deemed appropriate.16 In 1925, in Pierce v. Society of Sisters,17 the Supreme Court struck down a state statute requiring children to attend public schools. Parents in this case had chosen to send their children to parochial schools, which under state statute violated compulsory education laws. In Pierce, the court stated:

The child is not the mere creature of the State; those who nurture him and direct his destiny have the right, coupled with the high duty, to recognize and prepare him for additional obligations.18

Later in 1944, in Prince v. Massachusetts,19 the U.S. Supreme Court, although recognizing the state’s interest in an educated citizenry, underscored the paramount rights of parents to direct the religious training and upbringing of their children:

The custody, care, and nurture of the child reside first in the parents, whose primary function and freedom include preparation for obligations the state can neither supply nor hinder. And it is in recognition of this that these decisions have respected the private realm of family life which the state cannot enter.

In Wisconsin v. Yoder,20 in 1972, the Supreme Court affirmed this common law principle by preventing the state from forcing Amish parents to send their children to school beyond eighth grade. Recognizing family autonomy in the areas of education and religious upbringing, the court rejected the State’s argument that it had a right to “save” the child from the decisions of the parents. The court stated:

The history and culture of Western civilization reflect a strong tradition of parental concern for the nurture and upbringing of their children. This primary role of the parents in the upbringing of their children is now established beyond debate as an enduring American tradition.21

Without exception, the highest court held fast to the principle that fit parents, not the state, have the primary role of raising and nurturing children. Under the doctrine, Parens Patriae, the State can pierce this wall of protection only when the parent places a child in clear and present danger of harm.

The 1960s witnessed a rise in individual rights movements—women’s rights, children’s rights, homosexual rights, and minority rights. Holding their banners of protest, masses marched on Washington, D.C., demanding equality. Rights are a funny thing, though. They are not asserted in a vacuum. Whether justified or not, when a right is asserted by one citizen or entity, another citizen’s rights are modified, reduced, or even eliminated.

The Children’s Rights Movement

The Children’s Rights Movement, some believe, struck the first crippling blow to family autonomy and parental rights when it roared onto the political scene in the 1960s. Despite, some strides in the early part of the 20th Century in the areas of juvenile justice and labor laws, the movement floundered until the Supreme Court changed course in 1967 with its decision in In re Gault.22 In that decision, the Court extended 14th Amendment Due Process protections to children in juvenile delinquency hearings. For the first time in law, the government recognized children’s rights, separate and apart from parents’. Congress, state legislatures, and courts, however, quickly expanded the standard’s original application to justify a plethora of legislation and court cases in the area of child custody, education, health care, and discipline.

This movement has not been confined to the United States. The conflict between parent rights and child rights was never more apparent than with the 1989 United Nation’s Convention on the Rights of the Child (UNCRC). The document acknowledges the individual rights of children, which may be separate and distinct from and conflict with parents’ rights.

Article 3 gives administrative or legislative authority to decide what actions are “in the best interest of the child.” Article 12 gives to the child “who is capable of forming his or her own views” the right to express them. The child’s views will be given “due weight,” depending on the age and maturity of the child.23

According to Michael Farris, an attorney and chairman of the Home School Legal Defense Association, the UNCRC dictates two things: “1. Government can override parental decisions without proof of abuse, neglect or harm; 2. Children have legally enforceable rights to complain about parental decision-making in every area of their life, including religious and educational decisions.”24

Parents who are citizens of countries that have ratified the treaty have lost the unfettered discretion to make decisions on behalf of their children. A parent’s violation of the ‘rights’ of their own children could subject the parent to international condemnation or, worse, punishment.

According to a 2009 Congressional Research Service report, 193 countries have ratified the treaty. The United States and Somolia are the only two countries that have not.25 Consequently, U.S. parents, unlike most parents around the world, do not have to answer to bureaucrats or courts for decisions they make regarding the rearing of their own children.

Scripture and history warn that a house divided against itself cannot stand. Creating conflicting rights within a family—in this case, parent against child—will do nothing but weaken the autonomy and strength of the family, and lead to its demise.

Discipline

As mentioned previously, under the Doctrine of Parens Patriae, the government has always had the right to step in and protect the child from unfit parents. According to one law professor, the government has also used this doctrine to assist parents

in discipline. Called “juvenile status offense legislation,” many states still have truancy laws, curfew laws, and laws dealing with children who perpetually run away from home.26 One could argue that traditionally written statutory rape laws provided parents with a “big stick” solution for boys who took advantage of daughters.

Today, the tables have turned. The government is no longer in the business of assisting parents in their inherent responsibility to discipline. Rather, government is partnering with children to punish their parents. Never, until recently, has the government taken such an active role in pitting children against parents.

A 1980 case illustrates this point. In In re Welfare of Sumney,27 under a Washington State statute, the state granted a 15 year-old’s petition seeking “alter- native residential placement.” Despite the fact that there was no evidence of abuse, neglect or parental unfitness, the State granted the petition citing “the best interest of the child.” In his dissent, Washington State Supreme Court Justice Robert Brachtenbach pointed out when the child was asked why she thought there was a conflict in the home, the child replied, “I just feel there is a communication gap there.” Further testimony revealed that the only “crime” committed by the parents was an insistence that their daughter not take drugs … use alcohol … or be sexually active and that she be in at a reasonable hour.”28 In exchange for asking their daughter to adopt a healthy, moral lifestyle, the parents were denied custody.

Health Care

Under common law, children were viewed as incapable of consenting to all medical treatment. Parents had the exclusive authority to make medical decisions on behalf of their children. In emergencies, parental consent was assumed and did not need to be obtained prior to treatment. In cases of abuse or neglect, common law recognized the right of the government to step in and act as the parent to remove the child from harm.

Abortion. In 1976, in Planned Parenthood v. Danforth,29 the court found unconstitutional a statute requiring parental consent for abortion. Again, in 1979, the Court proclaimed that parents did not have “an absolute and possibly arbitrary” right to veto a child’s decision to obtain an abortion.30

In 1992, however, the Supreme Court changed course and allowed to stand a state statute requiring parental consent for abortion with a judicial bypass, which allows a judge to sign off on a minor’s abortion in place of her parents in some circumstances.31Over the past 18 years, states have responded to this opportunity to restore parental authority over their children’s healthcare. According to a September 2010 Guttmacher Institute report, 34 states require some parental involvement in a minor’s decision to have an abortion. Of these states, 20 require parental consent only—two of which require both parents to consent; 10 states require parental notification only—one of which requires both parents to be notified; and four states require both parental consent and notification.32

In 1995, incidentally, the North Carolina General Assembly enacted a statute requiring parental consent for abortion. The law is flawed, however, because it does not require authenticity of the signature by a notary, thus, allowing forged signatures to meet the consent requirement of the statute.33

Contraception. Over the past 30 years, legislators at both the state and federal levels have aggressively weakened parental authority in other areas of children’s healthcare, including healthcare associated with sexual activity. The U.S. Congress has led the charge. Since its inception in 1970, there have been no “parental consent” requirements on monies for Title X of the Public Health Service Act or federal “family planning.” In the 1980s, regulations were promulgated to give parents the right to consent to contraceptives and other services provided by Title X funding. In the 1990s, additional administrative and legislative attempts were made to return to parents their rightful authority to control the health-care of their children. While valiant, all these efforts ultimately failed legislatively or by court challenge.34

State legislators have made some strides in protecting parental authority in relation to minors’ access to contraceptives. According to a January 2011 Guttmacher Institute report, 21 states and

How to Protect the Family

To rebuild the wall protecting family autonomy, we should:

• Enact a marriage amendment in N.C. defining marriage as a covenant between a man and a woman, which serves as the first step to protecting family autonomy.

• Enact federal and state constitutional amendments on parental rights, including an amendment to the U.S. Constitution to bar enactment of the U.N. Convention on the Rights of the Child.

• Repeal no-fault divorce. • Repeal state laws that deny parents the right to decide all medical

decisions for their children, including drug and alcohol treatment, STD treatment, abortion, and contraceptives, except in cases of emergency and with a judicial bypass if required by case law.

• Expand parental choice in education, through means such as education tax credits.

D.C. give minors unrestrained access to contraceptives without parental consent. Twenty-five states allow a minor access to contraceptives only under certain circumstances without parental consent, and four states require parental consent before a minor can receive contraceptives.35

STD Treatment. Attempts to maintain parental authority over other healthcare related to sexual activity have been less successful. For example, all 50 states and D.C. deny parents the right to consent to their children’s STD services. Eleven of those states retain the right for parents if the child has not reached a certain age (12 or 14). Eighteen of those states allow, but do not require, physicians to inform a minor’s parent that he/she is seeking STD testing and treatment. Although one state requires the physician to inform the parent if the child tests positive for HIV, the other 17 states do not.36 A child may be infected with the deadly HIV virus, and in 49 states, parents are not even notified.

School Health Clinics. For years, children’s rights advocates have further eroded parental authority by setting up healthcare facilities in schools. These clinics have been funded by a menagerie of federal, state, and private funds. Trumpeted as a way to provide better care for children, these facilities are used as referral centers for abortion. On March 25, 2010, Fox News reported that a 15 year-old had used a school-based clinic to obtain an abortion without notifying her mother. The mother reported that her daughter had been told that if she told her mother, the mother would be financially responsible for the abortion. If the daughter kept it secret, she was told the abortion would be free. Without any parental involvement, the school-based clinic called a cab for the girl, which took her to the local abortion clinic where an abortion was performed.37

In March 2010, the federal government authorized the expenditure of taxpayer dollars to further undermine parental authority in the area of their children’s healthcare. With the passage of the new federal health care bill, Congress authorized a

Parents are primarily responsible for directing the education of their children, and have the inherent right to decide whether that education shall take the form of public, private, parochial, or home schooling.

specific program for school-based clinics.38 While the law could have required parental consent for services, it did not. Undoubtedly, these clinics will provide all kinds of services, including contraceptives and abortion referral services, without parental consent.39

Education

Parents are primarily responsible for directing the education of their children, and have the inherent right to decide whether that education shall take the form of public, private, parochial, or home schooling. The Supreme Court in 1925 struck down an Oregon statute requiring all children to attend public school. In that case, the high court made it clear that a fundamental cornerstone of liberty is a parent’s right and duty to make decisions regarding a child’s education.40

For years, the public schools have indoctrinated children with beliefs inconsistent with beliefs taught at home. The assault on parents’ rights to educate their children, however, has never been stronger or more blatant than in the area of home schooling. In recent years, the number of parents choosing to homeschool their children has exploded. It is estimated that 1.5 million children are homeschooled, with some sources claiming that the numbers are really much higher.41 With the rising numbers, teachers’ unions and legislatures have taken notice, and efforts are underway in several jurisdictions to further restrict this option for parents. According to the Home-School Legal Defense Association, in 2008, D.C. was the first jurisdiction to severely limit the right of parents to homeschool. While not banning home schooling entirely, the D.C. City Council decided to regulate it to death. In casting his vote against the plan, one D.C. Councilman reportedly called the government’s new power over home schooling parents “a type of socialism.”42

Custody

Custody of one’s children serves as the cornerstone of family autonomy and parental rights. All other parental rights—to educate, to provide health care, to instill moral and religious values—become insignificant if a parent cannot retain the right to keep a child in his presence. Traditionally, in the area of custody, and following the belief that parents naturally have the best interest of the child in mind, government deferred to the parents on issues of custody. However, with the rise of divorce and the introduction of the “Best Interest of the Child,” the court ultimately decides who assumes custody of children, regardless of the parent’s wishes. In her book, Supremacists, long-time conservative activist and lawyer, Phyllis Schlafly estimates that over 48.3 million American parents are controlled by judges in child custody matters.43

Grandparents’ Rights Movement

While not exclusively a “divorce issue,” the Grandparents’ Rights movement has been catapulted forward, in large part, due to rising divorce rates. Next to children, grandparents are the second victims of divorce when a parent denies them access to grandchildren. It can be heart-wrenching for grand-parents to be told suddenly that they can no longer see their grandchild. As difficult as this reality may be, because they diminish parental rights, grandparent rights to custody and visitation of grandchildren has never been recognized by common law.

The Grandparents’ Rights Movement serves as a new and different assault on parental rights. Whereas other movements, particularly the Children’s Rights Movement, have created conflicting individual rights within the nuclear family, the Grandparents’ Rights Movement seeks to legitimize the right of government to bulldoze the cornerstone of family autonomy and parental rights—the right to custody of children.

Grandparents’ rights organizations formed in the 1980s to persuade legislatures and courts to create visitation rights for grandparents. Initially, these groups set their sights on Washington to solve their problem. Despite Congressional hearings in both the House and Senate in the 1980s,44 Grandparents’ Rights advocates failed to convince legislators to create a “right” to visitation through federal legislation.

Unrelenting, in the 1990s, these groups successfully turned their energies toward state legislatures. In one case, however, the state legislature pushed the pendulum too far. The Washington State Legislature passed legislation that allowed “any person,” relative or nonrelative, to petition the court for visitation rights. In effect, the Washington statute stole from parents, and gave to the government the right to decide custody and visitation for children. Thankfully, in Troxel v. Granville,45 the Supreme Court overturned this state statute as an unconstitutional infringement on parental rights. The Troxel decision dealt a serious blow to the Grandparents’ Rights Movement and the government’s assault on parental authority in the area of visitation.

Today, all states allow some sort of visitation rights for grandparents. These statutes fall into one of two categories: restrictive visitation statutes and permissive statutes. The restrictive statutes allow visitation by grandparents, only if: (1) the child’s parents are divorced or separated, or (2) one or both of the child’s parents have died. Visitation in these states will be allowed only if the court decides that it is in the best interest of the child.

Permissive statutes allow grandparents the right to obtain visitation if the court decides it is in the “best interest of the child.”The “best interest of the child” standard many times requires a grandparent to show evidence of a continual relationship with the child. The parents do not need to be divorced or deceased. A court can step in and force fit parents, living in an intact family, to allow grandparents to visit their children.

In North Carolina, the N.C. Supreme Court reaffirmed the U.S. Supreme Court finding that parents, not government, hold the right to “custody, care and the nurture of children.”46 Only in cases where the nuclear family is disrupted by divorce,

or when a child is adopted by a stepparent or a relative of the child where a substantial relationship exists between the grandparent and the child may a grandparent petition the court for visitation rights to the grandchild.47 Attempts to expand grandparents’ rights have failed.

While the N.C. General Assembly has run roughshod over some areas of parental authority, it has, thus far, restrained itself from meddling in custody and visitation rights of fit, married parents whose children live in intact families.

At a Crossroads

As America continues to turn away from God, the inalienable rights for which her founders fought and died face political extinction. A government that fails to recognize the Author of those rights will refuse to uphold mankind’s inherent right to live or be free. Family autonomy no longer enjoys government’s protection. America is at a crossroads—she can rebuild the strength of family autonomy, or she can continue to sit back and watch as government assaults that wall separating freedom from tyranny. If the latter path is chosen, what is happening to parents in Sweden, Germany, and Scotland, will no longer be a tragedy occuring somewhere else. Rather, it will be a reality at America’s doorstep.v

Mary Summa, J.D., is an attorney in Charlotte, North Carolina, who served as Chief Legislative Assistant to U.S. Senator Jesse Helms during the 1980s. For a footnoted version of this article, please visit ncfamily.org.

Family North Carolina

Re-printed with permission from the NORTH CAROLINA FAMILY COUNCIL MAGAZINE PUBLICATION.

Originally appeared – “Parental Rights:  The Guardian of Freedom. Family NC. Spring 2011.

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