into the family can only be done through the courts of justice. As
stated before, it is the role of the court to protect the constitutional
rights of each family member. “Without this, all the reservations of
particular rights or privileges would amount to nothing.”64
Accordingly, the courts are designed to protect the rights of the
people and, when it comes to family law, the rights of the family. As
previously discussed, governmental intrusion is only appropriate to
protect the rights of a family member as balanced against one
another. Based upon the role of the court, the use of the “best
interest” definition must be limited so as not to infringe on the
constitutionally protected rights of all family members.
With this understanding, the Constitution does not allow
judges to impose their own standards and values into the private lives
of families. As Alexander Hamilton, a Founding Father of the United
States, stated, “[t]hey (being judges) ought to regulate their decisions
by the fundamental laws, rather than by those which are not
fundamental.”65 The court’s role is to protect the personal rights of
individuals guaranteed by the Constitution without imposing personal
judicial standards and values. “The protection of individual rights
through judicial review remains an irreplaceable protection for
individual freedom in the United States.”66 The safeguarding of
personal rights of the family members is better protected when
determining best interest requires recognizing and balancing the
rights of parents and children.
It has been suggested that the “legislatures and courts have
defined and re-defined the contours of factfinding [sic] and the scope
of judicial authority in child custody litigation by adjusting the
century-old mantra ‘best interest of the child.’”67 The phrase “best
interest” implicates a range of public policy and personal values
potentially as divergent and numerous as there are judges.68 But best
for whom? If it is best for the child, why and how so? If it is best for
64 THE FEDERALIST NO. 78 (Alexander Hamilton).
66 RALPH C. CHANDLER ET AL., CONSTITUTIONAL LAW DESKBOOK: INDIVIDUAL
RIGHTS 8 (2d ed. 1993).
67 Prescott, supra note 2, at 110.
68 Id. at 110.