In contrast, when acting in the best interest of the child, the
court must balance the rights of the parents and the rights of the
child. Parents have a constitutional right to due process before the
government may intrude upon their parental rights.24 It is not a matter
of the degree of governmental intrusion that invokes the
constitutional provisions of due process. Even if the court’s intrusion
is minimal, due process still is unlikely to be waived.25 If one right
applies, then all rights must apply, including the rights of the
children. In recognizing the rights of the parent, the court should not
overlook the rights of the child. After all, the court is balancing the
rights of the parent with the rights of the child, and where the rights
of the child are in conflict with the rights of the parent, the rights of
the child should prevail.
C. The need for an objective standard
Parents have a constitutional right to raise their child as they
see fit.26 How can this constitutional right of the parent be weighed
against something as elusive as the “best interest” of the child? In
light of the difficulty that comes with addressing this question, “there
is a fear that judges, either intentionally or unintentionally, will apply
their own personal values and preferences to the lives of the families
that come before them . . . .”27 It has been argued, due to the
vagueness or lack of criteria of the best interest standard, that
decision makers are vulnerable to social biases.28 In order to balance
the constitutional rights of the parent with the best interest of the
child, the decision should be based on as objective a standard as
24 Moore v. City of East Cleveland, Ohio, 431 U.S. 494, 503 n.12 (1977)
(commenting on Wisconsin v. Yoder, 406 U.S. 205, 234 (1972), noting that the
Court rested its holding in part on the constitutional right of parents to assume the
primary role in decisions concerning the rearing of their children); see also Troxel
v. Granville, 530 U.S. 57, 66 (2000) (finding that absent a finding of unfitness,
parents are the primary decision makers in raising their children).
25 See Verheydt v. Verheydt, 295 P.3d 1245, 1251 (Wyo. 2013) (noting that a
waiver of due process “occurs when there is an intentional relinquishment of a
known right manifested in an unequivocal manner”).
26 Troxel, 530 U.S. at 69, 71.
27 Wayne, supra note 1, at 41.