H 4437 Session 112 (1997-1998)
H 4437 General Bill, By Davenport, Bailey, Clyburn, Knotts, Koon, Littlejohn,
Neilson, Simrill and Tripp
Similar(H 3168)
A BILL TO AMEND TITLE 20, CHAPTER 7, ARTICLE 3, CODE OF LAWS OF SOUTH
CAROLINA, 1976, RELATING TO THE LEGAL STATUS OF CHILDREN, BY ADDING SUBARTICLE
2 TO ENACT THE PARENTAL RIGHTS AND RESPONSIBILITIES ACT OF 1998, SO AS TO
ESTABLISH THE RIGHTS OF PARENTS IN DIRECTING THE UPBRINGING OF THEIR CHILDREN,
TO PROHIBIT THE STATE FROM INTERFERING IN THIS RIGHT, TO ALLOW A PARENT TO
RAISE A VIOLATION OF THIS SUBARTICLE AS A CLAIM OR DEFENSE, TO PROVIDE FOR
ATTORNEY'S FEES WHEN A PARENT PREVAILS, AND TO EXEMPT CERTAIN ACTIONS BETWEEN
PARENTS.
01/20/98 House Introduced and read first time HJ-12
01/20/98 House Referred to Committee on Judiciary HJ-12
A BILL
TO AMEND TITLE 20, CHAPTER 7, ARTICLE 3, CODE OF
LAWS OF SOUTH CAROLINA, 1976, RELATING TO THE
LEGAL STATUS OF CHILDREN, BY ADDING SUBARTICLE 2
TO ENACT THE PARENTAL RIGHTS AND RESPONSIBILITIES
ACT OF 1998, SO AS TO ESTABLISH THE RIGHTS OF
PARENTS IN DIRECTING THE UPBRINGING OF THEIR
CHILDREN, TO PROHIBIT THE STATE FROM INTERFERING
IN THIS RIGHT, TO ALLOW A PARENT TO RAISE A
VIOLATION OF THIS SUBARTICLE AS A CLAIM OR
DEFENSE, TO PROVIDE FOR ATTORNEY'S FEES WHEN A
PARENT PREVAILS, AND TO EXEMPT CERTAIN ACTIONS
BETWEEN PARENTS.
Be it enacted by the General Assembly of the State of South
Carolina:
Whereas, the General Assembly finds that the United States Supreme
Court has regarded the right of parents to direct the upbringing of
their children as a fundamental right implicit in the concept of
ordered liberty within the Fourteenth Amendment to the Constitution
of the United States, as specified in Meyer v. Nebraska, 262 U.S. 390
(1923) and Pierce v. Society of Sisters, 268 U.S. 510 (1925) and that
Article I, Section 3 and that Article I, Section 3 of the South Carolina
Constitution should afford that same right; and
Whereas, the role of parents in the raising and rearing of their
children is of inestimable value and deserving of both praise and
protection by all levels of government; and
Whereas, the tradition of western civilization recognizes that parents
have the responsibility to love, nurture, train, and protect their
children; and
Whereas, some decisions of federal and state courts have treated the
right of parents not as a fundamental right but as a nonfundamental
right, resulting in an improper standard of judicial review being
applied to government conduct that adversely affects parental rights
and prerogatives; and
Whereas, parents face increasing intrusions into their legitimate
decisions and prerogatives by government agencies in situations that
do not involve traditional understandings of abuse or neglect but
simply are a conflict of parenting philosophies; and
Whereas, the State and its political subdivisions should not interfere
in the decisions and actions of parents without compelling
justification; and
Whereas, the process used by courts to evaluate cases concerning the
rights of parents appropriately should balance the interests of parents,
children, and government. Now, therefore,
SECTION 1. Title 20, Chapter 7, Article 3 of the 1976 Code is
amended by adding:
"Subarticle 2
Parental Rights and Responsibilities
Section 20-7-102. This subarticle may be cited as the Parental
Rights and Responsibilities Act of 1998.
Section 20-7-103. As used in this subarticle:
(1) 'Appropriate evidence' means:
(a) for a case in which the State seeks a temporary or
preliminary action or order, except cases which terminate parental
rights, evidence that demonstrates probable cause; and
(b) for a case in which the State seeks a final action or order,
or in which it seeks to terminate parental rights, clear and convincing
evidence.
(2) 'The right of a parent to direct the upbringing of a child':
(a) includes, but is not limited to, the right of a parent
regarding:
(i) directing or providing for the education of the child;
(ii) making a health care decision for the child in
accordance with subarticle 7 and except as provided in subitem (b);
(iii) disciplining the child, including reasonable corporal
discipline, except as provided in subsubitem (b)(ii); and
(iv) directing or providing for the religious teaching of the
child.
(b) does not include a right of a parent to:
(i) make a decision on health care for the child that, by
neglect or refusal, will result in danger to the life of the child or in
serious physical injury to the child;
(ii) act or refrain from acting in a manner that constitutes
abuse or neglect of a child.
Section 20-7-104. The purposes of this subarticle are:
(1) to protect the right of parents to direct the upbringing of
their children as a fundamental right;
(2) to protect children from abuse and neglect; this protection
being a compelling government interest;
(3) while protecting the right of parents to acknowledge that the
rights involve responsibilities and specifically that parents have the
responsibility to see that their children are educated for the purposes
of literacy and self-sufficiency;
(4) to preserve, in accordance with subarticle 7, parental choices
in making health care decisions for a child unless, by neglect or
refusal, the parental decision will result in danger to the child's life
or result in serious physical injury of the child.
Section 20-7-105. There is established a standard for judicial
review of the rights of a parent to direct the upbringing of a child, by
which the courts shall apply the rights in particular cases based on the
facts of the cases and law as applied to the facts. In hearing cases
concerning the rights of parents to direct the upbringing of a child,
the court shall utilize a process to evaluate these cases that:
(a) requires a parent to initially demonstrate that:
(i) the action in question arises from the right of the parent
to direct the upbringing of a child; and
(ii) the State or a political subdivision of the State has
interfered with or usurped the right; and
(b) shifts the burdens of production and persuasion to the
State or the political subdivision to demonstrate that:
(i) the interference or usurpation is essential to accomplish
a compelling governmental interest; and
(ii) the method of intervention or usurpation used by the
State or the political subdivision is the least restrictive means of
accomplishing the compelling interest.
Section 20-7-106. The State or a political subdivision of the State
or an official of either acting under color of law, must not interfere
with or usurp the right of a parent to direct the upbringing of a child
unless the State, political subdivision, or official is able to
demonstrate, by appropriate evidence, that the interference or
usurpation is essential to accomplish a compelling governmental
interest and is narrowly drawn or applied in a manner that is the least
restrictive means of accomplishing the compelling interest.
Section 20-7-107. (A) A parent may raise a violation of this
subarticle in an action in a court as a claim or as a defense.
(B) A parent who prevails in an action brought or defended against
under this subarticle is entitled to court costs and attorney's fees.
Section 20-7-108. This subarticle does not apply to:
(1) domestic relations cases concerning parental rights between
parents in custody disputes; or
(2) any other dispute between parents."
SECTION 2. This act takes effect upon approval by the Governor.
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