entitled to the support of laws designed to aid discharge of that
responsibility.”101 There are legal restrictions placed on children in
recognition of parental roles that are vital to the child’s opportunity
for growth and maturity, and which uphold our free society.102 “Thus,
both legislative and judicial deference to parental control and
instruction prepares children to live independently and advances
individual freedoms and liberty in society.”103 Governmental
interference within the home requires a compelling state interest.104
A decision involving the home affects all family members.105 The
Constitution applies equally to both parent and child and “the court
should balance those rights.”106
VI. Parental Rights Versus Children’s Best Interest
Once it is established that all family members have
constitutional rights, the task in defining and protecting those same
rights results from balancing them. This requires three
considerations: these rights are equal; the child’s rights may be
treated as unequal, balanced against the rights of the parents; and the
state, in balancing the child’s rights, can limit the parents’ rights.107
A. Equal consideration
The fact that they are children does not support the idea that
their rights are inferior to the rights of their parents.108 “Although it is
virtually undisputed that children have some Fourth Amendment
rights independent of their parents, it is equally clear that [in some
101 Henning, supra note 53, at 75.
104 Croft v. Westmoreland Cnty. Child. & Youth Servs., 103 F.3d 1123, 1125 (3d
105 See, e.g., CHILD WELFARE INFO. GATEWAY, DETERMINING THE BEST INTERESTS
OF THE CHILD 4-5 (2012),
(noting the importance of maintaining sibling and other close family bonds when
children are removed from their homes).
106 Brokaw v. Mercer Cnty., 235 F.3d 1000, 1019 (7th Cir. 2000).
107 Brennan & Noggle, supra note 3, at 3.