finding, the government, acting through the court system, has a duty
to intercede on behalf of the child.147 The courts have had a tendency
to impose their morals and values into homes where the parents lack
education and scarce means of support and to inform these parents
that they are inadequate based upon the best interest of the child
standard.148 The parents have the right and “the responsibility to
nurture and protect the child, and the authority to exercise [their] own
judgment in doing so on a day-to-day basis.”149 Parents have been
assigned the right to raise their children, protected from
governmental intrusion—except for instances of abuse and neglect—
in such a way as deemed proper according to the parents’ standard of
care—not the standard of care of the court.150 The right of parents to
raise their children free from governmental intrusion151 creates a
rebuttable presumption that parents act in the best interest of their
child. In order for the government to rebut this presumption, the
balancing of individual rights must occur. The evidence must be
sufficient before the government may intervene. In balancing the
rights of the parents and the child, where there is a conflict, the
relationship between the child and the non-custodial parent. Id. The court ruled the
custodial parent determines the appropriate level of religious beliefs and the parent
receiving visitation must honor it. Id. See also Friederwitzer v. Friederwitzer, 432
N.E.2d 765, 767 (N. Y. 1982) (finding a mother to be less fit and changing primary
custody where the original decree stated the children would be brought up in the
parents’ faith because the mother’s conduct was found to be “flagrantly violating
those tenets which ‘confused the children and was contrary to their religious beliefs
and detrimental to their religious feeling’”).
147 See Gates, 537 F.3d at 429.
148 Troxel, 530 U.S. at 78-79 (Souter, J., concurring) (stating that parents should be
“free of judicially compelled visitation” because “a judge believed he ‘could make
a better decision’ than the objecting parent had done”); Wayne, supra note 1, at 41
(arguing that without an articulated standard, the fear is that judges “apply their
own personal values and preferences”); see also Bell, supra note 43, at 254
(arguing that without an “objective value,” findings amount to a “good faith guess”
and are based upon a judge’s personal experiences).
149 Brennan & Noggle, supra note 3, at 4.
150 See Gates, 537 F.3d at 429.
151 Troxel, 530 U.S. at 65.