the family. Judicial oversight is required for the government to
infringe upon the family’s rights. Without a judicial determination of
neglect or abuse, there is no legal basis for intruding into the family.
Parens patriae in America came from the British rule that
granted the royal prerogative of the King to act in his capacity as
parens patriae, or universal trustee.73 In McIntosh v. Dill, the
Oklahoma Supreme Court held that “well-organized and civilized
government requires the power to control the persons and property of
. . . infants, lunatics, and those held incompetent,” under parens
patriae.74 Parens patriae is meant to promote action in the best
interest of the child.75 Judge Cardozo described the doctrine in Finlay
v. Finlay as the judge putting:
[H]imself in the position of a ‘wise, affectionate and
careful parent’ and mak[ing] provision for the child
accordingly. . . . He ‘interferes for the protection of
infants, . . . by virtue of the prerogative which
belongs to the [state] as parens patriae.’ The
‘paramount consideration for the court at the time of
divorce, or at the time of a requested alteration of a
decree regarding custody, is the present and future
welfare and well-being of the child.’76
73 Dollar Sav. Bank v. United States, 86 U.S. 227, 239 (1873); see also United
States v. Wittek, 337 U.S. 346, 359 n.16 (1949) (“The most general words that can
be devised (for example, any person or persons, bodies politic or corporate) affect
not him (the King of England) in the least, if they may tend to restrain or diminish
any of his rights and interests. The rule thus settled respecting the British Crown is
equally applicable to this government, and it has been applied frequently in the
different States, and practically in the Federal courts.”).
74 Jones v. Jones, 680 S. W.2d 118, 121 (Ark. Ct. App. 1984) (holding that the state
should not interfere with parental rights to their children unless there is a failure to
discharge the parental duty); McIntosh v. Dill, 205 P. 917, 917 (Okla. 1922); see
also In re G.W., 977 N.E.2d 381, 385 (Ind. Ct. App. 2012) (noting that the state has
a compelling interest in protecting children and the authority to intervene when
parents abuse, neglect, or abandon their children (citing G.B. v. Dearborn Cnty.
Div. of Family & Children, 754 N.E.2d 1027, 1032 (Ind. Ct. App 2001) trans.
75 Prescott, supra note 2, at 123.
76 Id. at 122 (internal quotations omitted).