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A Primer on Parental Rights in California

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May 20, 2015

“When families bring children into the world, train them in faith and sound values, and teach them to contribute to society, they become a blessing in our world,” Pope Francis has said.

Throughout our history, our nation has stood by the fundamental right of parents to raise their children according to their own beliefs – a right upheld by numerous U.S. Supreme Court cases.

“It is cardinal with us that the custody, care and nurture of the child reside first in the parents,” the high court stated in Prince v. Commonwealth of Massachusetts (1944).  Therefore, it said, Court decisions “have respected the private realm of family life which the state cannot enter.”

In Troxel v. Granville (2000), the justices wrote, “The interest of parents in the care, custody, and control of their children is perhaps the oldest of the fundamental liberty interests recognized by this Court.”

Parental rights, however, though fundamental, are not absolute.  They have limits, as also articulated by the courts.

“Neither rights of religion nor rights of parenthood are beyond limitation,” the Prince ruling stated.  Parental rights can be restrained to protect a child.  The state, it said, may restrict parents’ control by requiring school attendance, regulating or prohibiting child labor and in many other ways. 

California law also states that “a parent's fundamental right” to raise his or her children as the parent sees fit, “while compelling, is not absolute.”  The state has legitimately assumed authority over parents in protecting children from child abuse and neglect and in deciding custody issues.

In addition, the legal doctrine of “in loco parentis,” a Latin term meaning “in the place of a parent,” and rooted in English common law, refers to the legal responsibility of a person or organization to perform some of the functions or responsibilities of a parent.  Under this concept, a non-biological parent, such as a legal guardian, can be given the legal rights and responsibilities of the parent, under certain conditions.  Similarly, courts have upheld the right of schools, under this doctrine, to restrain and discipline students, as well as the duty of school officials to protect students from harm. 

But at what point does the state interest outweigh the parental right?  And how far can government go in infringing on a fundamental freedom?

In order to be constitutional, any law intruding on a fundamental liberty must meet a “compelling interest,” and must be “narrowly tailored,” using the “least restrictive” means possible, according to various high court rulings. 

The question of how much power the state can use in restricting parental rights is currently the subject of a major debate in California.  Proposed legislation, SB 277 (Pan, D- Sacramento and Allen, D-Santa Monica), would remove the personal belief exemption from the vaccination requirement for children in public and private schools and certain other facilities, except for those with a medical exemption.  The law would not apply to students in home schooling or independent study. 

The Supreme Court has upheld the right of states to implement reasonable regulations to control communicable diseases.  The question about SB 277 is whether banning the freedom of parents to opt out based on their personal beliefs is “reasonable.”  Some considerations based on principles under prior court rulings include:  Is there a demonstrated need that warrants this particular form of government intrusion on parental rights? 

Whatever conclusion is reached on SB 277 there is no doubt that there has been a troubling erosion of parental rights in California in ways that many believe do not protect, but often harm, children:

  • A girl under age 18 cannot get a cavity filled or an aspirin from a school nurse without a parent’s approval, but a doctor can perform an abortion on a young girl without informing a parent.
  • Children as young as 12 in California can obtain an HPV vaccine for sexually transmitted diseases without parental permission, under a 2011 law.
  • Parents cannot access the records of teenagers who had an abortion, or are receiving contraceptive services, HIV/AIDS services or treatment for communicable diseases without the minor’s consent.
  • Another 2012 law banned licensed therapists from providing therapy for children with same-sex attraction or gender confusion that does not affirm the behavior, even if agreed to by parents and family. 

Issues relating to the erosion of parental rights in California and what can be done to restore them will be explored in future articles.