HOUSE OF REPRESENTATIVES

151st GENERAL ASSEMBLY

HOUSE BILL NO. 319

AN ACT PROPOSING AN AMENDMENT TO ARTICLE I OF THE DELAWARE CONSTITUTION RELATING TO PARENTAL RIGHTS.

BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF DELAWARE (Two-thirds of all members elected to each house thereof concurring therein):

Section 1. Amend Article I of the Delaware Constitution by making deletions as shown by strikethrough and insertions as shown by underline as follows:

§ 21. Parental Rights

(a) The right of a parent to the care, custody, and control of their child is a fundamental right that resides first in the parent.

(b) As used in this article, “parent” means the natural or adoptive parent or legal guardian of a minor child.

(c) 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.

(d) The provisions of this article shall apply to any statute, ordinance, regulation, or policy regardless of the date on which the statute, ordinance, regulation, or policy was adopted or became effective.

(e) Nothing in this article shall be construed to authorize a parent to engage in any unlawful conduct, abuse, or neglect of a child in violation of the laws of this state or any political subdivision of the state.

(f) Nothing in this article shall be construed to prohibit a court, law-enforcement officer, or employee of an agency which provides child welfare services from acting in their official capacity within the scope of their authority.

SYNOPSIS

There are presently at least 30 states that have a statute defining and protecting parental rights, or case law that interprets parental interests as a fundamental right. Delaware has neither. This proposal is the first leg of a constitutional amendment affirming that parents have a fundamental right to the care, custody and control of their children. The amendment contains two important protections with regard to government agencies asserting authority over children. The amendment would require government officials to prove that the proposed action was needed. If successful, government officials would be limited to taking the least intrusive means to accomplish their goal. This amendment would not shield neglectful or abusive parents, nor would it interfere with the obligation of government to protect the welfare of children. Since 2013, eight states have enacted laws defining and protecting parental rights. This measure shall be named the Parental Rights Protection Amendment.