authority to do what is basically good for the child.21 What is “good”
for the child is a much more expansive idea than what is in the “best
interest” of a child. What is good for a child is subjective and
requires a value decision. Determining the “best interest” of a child
requires weighing and balancing the individual constitutional rights
of the parents and the child.
Part of the determination of what is good for the child
includes an application of a standard of care. Good is a relative term
whose weight can only be interpreted by the speaker. Therefore, it is
the speaker’s interpretation of good, and as such is the speaker’s
standard of good—meaning good care. But the question is, “whose
standard of good care should we use?” Often, it is the standard of
care of the court itself.22 Imposing a standard of care does not require
a balancing of interests; it merely incorporates the values, thoughts,
and desires of the court.23 This imposition of the court’s standard of
care upon the parents is paramount to governmental intrusion into
21 For example, it might be “good” for the court to act out of general concern for
the health of an overweight child where the parents were not taking action.
However, determining the “best interests” of the child would involve determining
the specific needs of the overweight child and whether the parents were attentive to
them, including any weight-related medical conditions. The court’s authority to
demand certain behaviors of the parents must be grounded in an objective
determination of the risks the child faces, not upon a subjective, value-based
reaction to what the judge thinks the parents are doing “wrong.”
22 Wayne, supra note 1, at 37. “The legal literature does not offer much guidance in
understanding the meaning of the best interests of the child as a legal standard.
One, perhaps cynical, author stated, ‘the best interests of the child standard often
operates as a fiction to soothe the conscience of judges, lawyers, and parents who
invoke it as a mantra without meaning.’” See also Nancy Neraas, Comment, The
Non-Lawyer Guardian Ad Litem in Child Abuse and Neglect Proceedings: The
King County, Washington, Experience, 58 WASH. L. REV. 853, 867-68 (1983)
(stating that there is no consensus on the meaning of the term “best interests of the
child”). These articles represent popular beliefs that the standard is void of content.
23 A standard of care is subjective and based upon personal values and preferences
in how a child should be raised. It is possible for there to be as many as three
standards of care in a family matter: the parent, the community, and the judge. The
standard of care could best be described as: under a given set of circumstances,
what would be a reasonable, prudent person’s actions? The less defined the criteria
for determining reasonable and prudent, the higher the risk that it is left up to the
subjective thoughts of the fact finder.