conscience of judges, lawyers, and parents who invoke it as a mantra
without meaning.”17 This oft-quoted fiction is created by imposing
outside values into the family combined with the lack of a working
definition of “best interest.”
Essentially, all those courts that interact with children have a
tendency to overlook the fundamental rights of both the child and
parents when applying their own good judgment in the decision
making process.18 A court’s order should contain more than, “I find it
in the best interest of the child” when ordering how the parent will or
will not perform his or her parental duties. There needs to be a
balancing of identified rights of both the parents and child.19
B. Balancing the rights of parents against the rights of
Lawyers, parents, and social workers often argue that being in
the “best interest” of a child is what that person truly believes is good
for the child. Each person’s view of what is good for the child is as
diverse as the individuals involved. This concept of what is good for
the child is not synonymous with what is in the “best interest” of the
child. According to the U.S. Constitution, the court should not use
the standard that determines what is good for the child, but instead
should use the narrower standard that looks to what is in the “best
interest” of the child. In other words, “best interest” should protect
the rights of the child.20 The court is only authorized to act based
upon the “best interest” of the child; it simply does not have the
17 Id. at 37.
18 Id. at 41 (describing the potential for abuse of the “best interest” standard based
on a judge’s lack of understanding of available community resources and the
complexity of the social problems affecting parties).
19 See OKLA. STAT. ANN. tit. 10A, § 1-1-102 (West 2013) (recognizing that parents
have a natural, legal, and moral right, as well as a duty, to care for and support their
children, that a child has a right to be raised free from physical and emotional abuse
or neglect, and that the State should only intervene when necessary to protect a
child from harm or threatened harm).
20 Due process protections preclude the State from exercising power over persons
without appropriate consideration of and preservation of an individual’s rights.
U.S. CONST. amend. XIV, § 1.