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While parental rights are fundamental, Virginia courts put a child’s best interests first. That should not change — intentionally or inadvertently.
Thursday, February 7, 2013
The Virginia Senate passed a bill last week to amend the Virginia Code to state, “A parent has a fundamental right to direct the upbringing, education and care of the parent’s child.”
Sounds benign, and superfluous. U.S. Supreme Court rulings acknowledge a parent’s right to raise a child as a fundamental right protected under the 14th Amendment of the U.S. Constitution. Parental autonomy is already the law in Virginia.
If SB 908 is not superfluous, though — if it actually means something — child welfare advocates fear it is not benign, that it will prompt courts to consider parental rights as paramount, above even a child’s best interests when the two are not the same.
A similar bill (HB 1642) passed the House this week. If signed by the governor, this harmless-sounding provision could affect everyone who works to try to protect children from neglect or abuse.
In a phone interview, Betty Wade Coyle, retired executive director of Prevent Child Abuse Hampton Roads, voiced the concerns succinctly: “Children don’t have a like statement in the code at all.”
The bill’s supporters concede Virginia’s courts already treat parental rights as fundamental, and maintain that the bill as passed signals no change in how judges should weigh the interests of a parent against those of a child. Which would make the code change superfluous — but, again, not benign.
As Coyle’s organization wrote in a letter to legislators, “Generally, courts have taken the position that the legislature does not waste its time passing new laws that don’t make any change to existing laws.”
The Senate Courts of Justice Committee’s staff lawyer warned the change might have unintended consequences, perhaps create a new right for a non-custodial parent. The impact is impossible to know — an excellent reason to slow down and study the implications.
The potential for harm is great enough that representatives of professionals charged with safeguarding children — in education, health care and child protective services — pleaded with lawmakers to kill the bill.
The committee instead changed its original wording, which stated “the liberty of a parent” is not to be infringed by the commonwealth, “any instrumentality thereof, or any locality” by means of “any statute, local ordinance, rule of court or regulation,” and on and on.
The bill has been boiled down to: 1. A parent has a fundamental right to direct the upbringing, education and care of a child. 2. “The provisions of this act are declarative of existing law.”
That leaves worried child advocates wondering why this is on the General Assembly’s agenda at all.
A clue can be found on parentalrights.org, a website seeking a Parental Rights Amendment to the U.S. Constitution, an effort led by home schooling advocate and onetime Virginia GOP lieutenant governor candidate Michael Farris.
The group believes that parents’ fundamental right to parent, implied rather than enumerated as a right in the Constitution, is being eroded by federal courts even as an external threat looms: the U.N. Convention on the Rights of the Child.
The group is tracking friendly state legislative action as well as support for the federal amendment, Section I of which reads: “The liberty of parents to direct the upbringing, education, and care of their children is a fundamental right.”
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