Proposed Amendment Seeks to Protect Parental Rights in Delaware


Two Delaware lawmakers are proposing to amend the state constitution to confirm that parents have a fundamental right to the “care, custody and control of their child.”

State Rep. Charles Postles (R-Milford North) and State Sen. Bryant Richardson (R-Seaford) maintain that the Parental Rights Protection Amendment is needed to safeguard parental authority against government encroachment.

Rep. Postles said one high-profile example of such intrusion was a controversial regulation proposed by the Delaware Department of Education in late 2017.  Among other things, the rule would have allowed school children of any age to self-select their gender and racial identities without parental notification or consent.

“The rights of parents should be obvious, but we are finding out that potentially life-altering decisions are being made on behalf of a child without parental knowledge,” Sen. Richardson said.  “Even if those making the decisions feel they are doing this in the best interests of the child, no government agency or medical professional should be making decisions better left to the discretion of parents.”

Although many people may assume the right of parents to raise their children is fundamental and protected, a U.S. Supreme Court finding disproved that notion.  The case of Troxel v. Granville (2000) involved a state law and a dispute over child visitation between the children’s mother and their paternal grandparents.  The Washington state law allowed any person to petition for visitation rights at any time, with a judge able to grant visitation if he or she determined it would be in the best interest of the child.

The high court ultimately found the law unconstitutional, but the decision was reached without achieving a majority and with six different opinions being issued. 

Justice Antonin Scalia wrote that while he thought the right of parents to direct the upbringing of their children was among those the U.S. Constitution said shall not be denied or disparaged, his belief was not a legal protection.  He added that the Supreme Court’s previous parental rights decisions had failed to define the issue and suggested they needed to be legally established, with state legislatures best suited to the purpose.

There are presently at least 30 states that either have a statute defining and protecting parental rights, or case law that interprets parental interests as a fundamental right, or both.  Delaware is not one of these states.

The core of the proposed Parental Rights Protection Amendment states: “Neither the state, nor any agency of the state, nor any political subdivision of the state, shall infringe on the parental right as provided under this article without demonstrating that the interest of the government as applied to the parent or child is a compelling interest addressed by the least restrictive means.”

The language contains two important protections, first requiring the government to prove the proposed action was needed, then limiting it to the least intrusive means to accomplish the goal.

The bill includes specific provisions to prevent it from being misused to shield abusive parents; or prevent law enforcement, the courts, and child welfare agencies from acting in their official capacity within the scope of their authority.

If the amendment was added, government officials in Delaware would still have the authority to make laws and promulgate regulations that could impact children and their parents.  However, these actions would have to be justified, meeting a high legal standard.

Since the start of 2013, eight states have enacted laws defining and protecting parental rights, including Virginia.  Delaware’s proposal is based on laws in Wyoming, Nevada, and Oklahoma.

The Parental Rights Protection Amendment will be shared with all state lawmakers for sponsorship.  The measure will be filed as a House bill.