presumed to be looking not only to the present health and welfare of
the child, but also to maximize the future health and welfare of the
When courts begin weighing parents’ rights versus children’s
rights, “it requires that judges have a standard of well-being by which
to assess children’s interests. As a policy, the best interest guides
judges by requiring that they decide what is in the children’s best
interest, but it leaves open to interpretation what is in a child’s
interest.”166 The standard of well-being courts should use to assess a
child’s interest should be that of the parents if there is no evidence of
harm to the child’s health, welfare, or safety that rises to the level of
abuse or neglect. Parents’ rights to decide without interference are
still subject to some limits, though, and must be balanced against the
constitutional rights and well-being of the child.167 The presumption
that parents act in the best interest of their children168 may be
overcome by evidence of harm to the children, the risk of error in the
parents’ judgment, or conflicts in the home that likely undermine the
ability of parents to act in their children’s best interest.169
When dealing with the family, the court should recognize the
rights of each family member and how the relief requested affects
each right. Next, the court should balance each of those rights and
where the parents’ rights are in conflict with the rights of the child
( i.e., best interest), the child’s rights should prevail.170
VII. Limiting Parental Authority Over the Rights of the Child
165 Id. at 18.
167 Doan-Uyen Thi Le v. Thang Q. Nguyen, 241 P.3d 647, 652 (Okla. Civ. App.
2010) (“[U]ltimately, custodial decisions, even those involving termination of joint
custody, are dependent upon the best interests of the child.”); see also In re
Paternity of C.A.S., 468 N.W.2d 719, 727 (Wis. 1991) (“The best interests of the
children are the ultimate and paramount considerations.”).
168 Troxel, 530 U.S. at 71.
169 Henning, supra note 53, at 79.
170 Doan-Uyen Thi Le, 241 P.3d at 652.