Parental Rights

In Pierce v. Society of Sisters, a unanimous U.S. Supreme Court invalidates an Oregon law that requires parents to send their children to public schools. The Court rules that parents have the constitutional right, under the due process clause of the 14th Amendment, to direct their children’s educational as well as moral development, which includes sending their children to a school of their choice – even a private religious one.

Arkansas State Law

Not Explicitly Defined and Protected

Arkansas does not have a state statute that explicitly defines and protects parental rights as fundamental rights.

Arkansas does have various laws on the books that are supportive of parental rights.

Arkansas Courts

Affirmed

Parental rights are affirmed in Arkansas Supreme Court case precedent as a fundamental right for which strict scrutiny must be applied.

• "We hold that strict scrutiny is the standard that should apply to this case. Here, we have only one fundamental right at issue--Lea Ann's right to raise her child[.]" *Linder v. Linder*, 72 S.W.3d 841, 855 (Ark. 2002).

Additional case law precedent includes:

• In Graham v. Matheny, 346 S.W.3d 273 (Ark. 2009), the Chief Justice of the Arkansas Supreme Court wrote a footnote in his concurring opinion in which he stated that the "judicial question of what is best for welfare of child never arises unless the parents are dead or declared unfit" and that "the law establishes a preference for the natural parent and that preference must prevail unless it is established that the natural parent is unfit." Id. at 282.

• Inre Guardianship of S.H., _ S.W.3d _ (Ark. 2012), the Court held that a "natural parent who has not been deemed unfit is entitled to the presumption that he or she is acting in the child's best interest, even after consenting to a guardianship."

• Coffee v. Zolliecoffer, 216 S.W.3d 636 (Ark. Ct. App. 2005): "The law prefers a parent over a grandparent or other third person, unless the parent is proved to be incompetent or unfit." Id. at 641. However, "the 'polestar' and paramount consideration is at all times the best interest of the child, which can overcome the parental preference when a child is left in the care of a non-parent for a substantial period of time," id. at 642, even when the parent is perfectly fit.

• In Bethany v. Jones, 378 S.W. 3d 731 (Ark. 2011), the Arkansas Supreme Court affirmed a judgment awarding visitation to a former same-sex partner over the objections of the mother. Even though there had been no showing of parental unfitness, the Court noted that the mother's former partner was a "parent figure" to her daughter.