of the Laws would have an opportunity of defending their
constitutional rights.”61 Without an objective “best interest” standard,
there are no checks and balances on the encroachments into the
family that the executive and judicial branch of government may
Therefore, under the U.S. Constitution, it is the role of the
court to limit governmental intrusion into the life of the family.
Interference in family life should only occur if there is a compelling
state interest or to protect the rights of individual family members
against one another. This includes the rights of children. The court
should recognize and balance the rights of each family member
before the court determines the need to interfere into the family.
IV. Rights Encompass All Individuals
While rights have evolved over time, children’s rights have
not always been clearly recognized. For many years, children
constituted “property” under the authority of their fathers, ignoring
any constitutional rights of the mother.62 This viewpoint eventually
gave way to the “tender years” doctrine, which found that, all things
equal, young children should primarily be in the care and custody of
their mothers.63 It appears that the effects of the movement to
recognize women’s rights included the area of family law. And
during this time, the courts continued to act with an ambiguous
definition of “best interest of the child”; hence, family issues
continued to come before the court, subject to the standards and
values of the judge.
A. Protecting the rights of the family
The ultimate protection in limiting governmental intrusion
61 James Wilson, Debate from the Constitutional Convention Regarding the
Function of the Judiciary (July 21, 1787), transcript available at
62 Mercein v. People ex rel. Barry, 25 Wend. 64, 64 (N.Y. 1840); see also Com. v.
Briggs, 33 Mass. (16 Pick.) 203, 205 (1834) (holding that the father, in general and
by law, is entitled to the custody of his child).
63 OKLA. STAT. ANN. tit. 30, § 11 (repealed 1983); see ROBERT G. SPECTOR,
OKLAHOMA FAMILY LAW: THE HANDBOOK 314 (2011-2012 ed. 2011).