develop the capacity to exercise their future liberty.”177 This is the
best interest of the child. The courts must commit to this never-ending balancing act that plays out in the courtroom. The state cannot
overlook the rights of the parents, nor can it overlook the rights of the
child in determining the best interest of the child. Even more so when
courts are asked to intervene, especially after the breakdown of the
family, courts must understand that there are individual rights
attributable to both parents and the child that must be taken into
consideration before they can impose what they deem to be in the
best interest of the child.
The job of the court is to protect rights and enforce laws. In
the context of the family, this protection does not come with a license
to intrude upon the family, thus violating the parents’ right to decide
how their child should be raised, unless necessary to protect the
rights of the child.178 “Best interest” is the rights of the child. The
child’s parents, based upon their standards, values, and morals,
initially guide these rights. Governmental intrusion should only be
exercised to protect the child’s right to live free from parental abuse
or neglect that could cause harm to the child’s health, welfare, or
safety.179 Based upon the authority of the court in balancing the
constitutional rights of the parents and child, it may override the
parental rights to protect the rights of the child when the parents’
duty is not being met.180
Interpreting “best interest” as the constitutional rights of the
child protects the child and the family from government imposition
of its own standards and values upon the family. “As the Supreme
Court has stated, values, morality, and religion are things ‘the State
can neither supply nor hinder.’”181 In order to assure that courts do
not infringe upon the rights of the family, a standard for the best
177 Marcia Zug, Should I Stay or Should I Go: Why Immigrant Reunification
Decisions Should Be Based on the Best Interest of the Child, 2011 BYU L. REV.
1139, 1152 (2011).
178 Meyer, 262 U.S. at 399.
179 Gates v. Tex. Dep’t of Protective & Regulatory Servs., 537 F.3d 404, 429 (5th
180 Bellotti, 443 U.S. at 640-41.
181 Zug, supra note 177, at 1158.