possible, rather than on vague and subjective standards of the fact
finder.29 Next, it is important to consider how the authority of the
court relates to this fluid definition of “best interest.”
III. Authority of the Court
The authority of the courts comes from the United States
Constitution and the Judiciary Act of 1789.30 The U.S. Constitution is
a living, historical document allowing the courts to deal only with the
rights of the people as opposed to imposing the court’s opinion
regarding what is merely good for the people. Dealing with the rights
of the people includes interpreting rights,31 enforcing rights,32
defining rights,33 limiting rights,34 protecting rights from intrusion,35
29 BLACK’S LAW DICTIONARY 1413 (7th ed. 1999) (defining standard as “A model
accepted as correct by custom, consent, or authority”; “A criterion for measuring
acceptability, quality, or accuracy.” Further defining objective standard as “A legal
standard that is based on conduct and perceptions external to a particular person”).
30 Holmes v. Jennison, 39 U.S. 540, 545 (1840) (answering the question of the
authority of the state in depriving an individual’s personal liberty, Chief Justice
Taney stated, “[W]here is drawn in question, among other subjects, the validity of
an authority exercised under any state, on the ground of such authority being
repugnant to the Constitution or laws of the United States, and the decision of the
state Court is in favour of the validity of such authority”).
31 Abbott v. Abbott, 130 S. Ct. 1983, 1992-93 (2010) (interpreting the rights of a
custodial parent under the Hague Convention).
32 Gonzaga Univ. v. Doe, 536 U.S. 273, 288 (2002) (holding that the Family
Educational Rights and Privacy Act (FERPA) creates no personal rights to enforce
under Section 1983, barring a former university student’s claims under that
33 McDonald v. City of Chi., Ill., 130 S. Ct. 3020, 3020 (2010) (holding that the
Second Amendment right to bear arms is fully applicable to the States by virtue of
the Fourteenth Amendment).
34 Blair v. City of Chi., 201 U.S. 400, 457-58 (1906) (limiting the rights to use the
Chicago streets for street railway purposes based upon the Court’s interpretation of
the actions between the parties).
35 The Civil Rights Cases, 109 U.S. 3, 17 (1883) (finding that rights and privileges
are secured by the Fourteenth Amendment by way of prohibition against state laws
and proceedings affecting such rights and privileges).