By Shelby Mertens
Capital News Service
RICHMOND – A divided House of Delegates this week passed a bill formally declaring that parents have “a fundamental right to make decisions concerning the care, custody, and control” of their children.
The House approved the bill 70-30, with Republicans overwhelmingly for it and Democrats generally against it. The Senate previously split along party lines in passing companion legislation.
Delegate Brenda Pogge, R-Williamsburg, sponsored House Bill 1642. She said she was inspired by a U.S. Supreme Court decision in 2000. In the case of Troxel v. Granville, only one of the nine Supreme Court justices said parental rights were fundamental.
Although the Virginia Supreme Court has declared parental rights as fundamental in every case it has considered, the General Assembly has never defined what level of protection parents have. HB 1642 serves as a declaration that parental rights are fundamental – the highest level of protection.
“Fundamental” means these rights cannot be taken away unless the state has a compelling reason. Since the Troxel v. Granville ruling, there have been 24 cases in other states that have declared parental rights as “ordinary” rights. That means those states have more leeway in overriding parents’ decisions.
Parental rights includes any legal obligations that go with being a parent, such as the right to custody or visitation, the right and obligation to provide financial support and the obligation to provide the child with proper care and supervision.
For Pogge, the issue is personal.
“As a parent of five children and a grandparent, I see that court cases are beginning to corrode parental rights,” she said.
She believes it is the parents’ role to raise their children, and she wants to protect and preserve that right.
According to Pogge, the bill does not change existing law; rather, it would prevent Virginia courts from declaring parental rights as “ordinary” rights.
Americans generally support the view that parents’ rights are fundamental, according to a public opinion survey by the Zogby polling organization.
In a poll conducted in 2010, Zogby asked: “In general, parents have the constitutional right to make decisions for their children without government interference unless there is proof of abuse or neglect. Do you agree or disagree with this view of parental rights?” About three-fourths of Americans said they strongly agree, and 20 percent said they somewhat agree.
Delegate Michael Watson, R-Williamsburg, was among the House members who voted for HB 1642.
“HB1642 simply reaffirms in code a parent’s fundamental right to make decisions concerning the care of their child,” Watson said. “This fact has been upheld by the Supreme Court in numerous cases and received bipartisan support in the House. I supported it accordingly.”
Delegate Jennifer McClellan, D-Richmond, voted against the bill.
“My concern is that as drafted, the bill would overturn the ‘best interests of the child’ – standards in child custody cases – and create a conflict requiring mandatory joint custody in all custody cases,” McClellan said.
“The courts in Virginia have established a clean common law regarding the fundamental rights of parents, and I fear the unintended consequences of this bill could do more harm than good, especially in custody or abuse and neglect cases by elevating parental rights over children’s rights.”
An identical measure, Senate Bill 908, cleared the Senate on Jan. 31. The bill, introduced by Sen. Bryce Reeves, R-Spotsylvania, passed with a 26-14 vote.
SB 908 has now “crossed over” to the House and is awaiting a vote in the House Courts of Justice Committee. Meanwhile, Pogge’s bill has been assigned the corresponding Senate committee. Pogge says the two bills will likely merge into one final measure.