the family, it seems this would necessitate defining the why and how
for each family member. This implies, in and of itself, a balancing of
interest between all family members. Whose standard shall apply to
raising a child? If the best interest standard is left to the court’s
discretion, how does this allow for a “judicial [system] that is
predictable, determinate, and knowledge-based”?69
B. Protecting children under the Parens Patriae doctrine
To provide some guidance for determining the best interest of
the child, the government’s role has been labeled parens patriae.70
The parens patriae doctrine grants the state with inherent power and
authority to protect persons who are legally unable to act on their
own behalf, such as children.71 The law presumes that parents act in
the best interest of their children.72 However, when the state believes
that parents are not acting in the best interest of the child, the state
may intercede on behalf of the child under the parens patriae
doctrine. Thus, the doctrine creates a state actor who imposes its own
morals and viewpoints upon parents who have the right to raise their
children as they see fit. The Constitution limits these intrusions into
69 Id. at 119.
70 Mahmoodjanloo v. Mahmoodjanloo, 160 P.3d 951, 956 (Okla. 2007) (Kauger, J.,
concurring) (acknowledging that the State of Oklahoma has a right in the role of
parens patriae to preserve and promote the welfare of children).
71 Sauro v. Sauro, 42 A.3d 227, 237-38 (N.J. Super. Ct. App. Div. 2012) (noting
that the parens patriae doctrine authorizes the Family Court to modify freely
negotiated arbitration clauses concerning child custody and parenting time, by
imposing judicial oversight to prevent an adverse impact or harm to the child); see
also Sizemore v. Pickett, 76 So. 3d 788, 795 (Miss. Ct. App. 2011) (raising issues
pertaining to the child’s welfare and parental fitness and finding that the court
possesses a duty to determine the best interest as parens patriae).
72 In re Bordalo, 55 A.3d 982, 984 (N.H. 2012) (recognizing the parents’
fundamental liberty interest in raising their children and this does not go away
simply because the parents have not been model parents); see also Norrod v.
Norrod, 165 P.3d 366, 370 (Okla. Civ. App. 2007) (holding that to obtain custody
in a divorce proceeding over the objection of a parent, a grandparent must show the
parent’s unfitness by evidence that is clear and conclusive, and makes the necessity
for doing so appear imperative; the unfitness may not be demonstrated by a mere
comparison between what is offered by the competing parties, but only by a
showing that the parent cannot reasonably be expected to provide for the child’s
ordinary comfort or intellectual and moral development).