Protecting Parental Rights at the State Level

NOTES

[1] 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 this strict scrutiny review.

[2] Arkansas does have various laws on the books that are supportive of parental rights. Parental rights are affirmed in Arkansas Supreme Court case precedent, but contrary court precedent also exists. The state of parental rights in Arkansas’ courts, therefore, is unclear.

[3] 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.

[4] In Wilson v. Div. of Family Servs., the Supreme Court of Delaware recognized "the interest of natural parents in the care and custody of their children" as a "fundamental right," but did not specify strict scrutiny.

[5] 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.

[6] While in Skov v. Wicker v. Boydston, 272 Kan 240 (2001), the Kansas Supreme Court, citing the Troxel ruling, only demanded the ambiguous Troxel test, it is expected that the religious freedom statute of 2013 that calls for fundamental parental rights and outlines strict scrutiny protection will lead to a different outcome in Kansas courts the next time the issue comes up.

[7] Louisiana Children's Code Article 101 supports parental rights and family privacy.

[8] 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.

[9] While North Carolina courts have repeatedly recognized the rights of parents to oversee the care of their children as a fundamental right, unfortunately, no specific standard of review (such as "strict scrutiny") is set in these cases.

[10] Tennessee does have numerous laws on the books that provide support to parental rights.

[11] Although Texas does not have a specific parental rights statute, parental rights are respected and protected by statute in several key parts of Texas law. A parental rights statute could improve on this--but not by much.

[12] Vermont courts have a history of recognizing fundamental parental rights but the standard of review may be a subject of confusion.

[13] Washington courts affirm parental rights as fundamental, although there is no mention of strict scrutiny.

[14] 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.