the judge says it is.” The intent of this Article is to propose a
structure in determining the definition of “best interest” within the
legal system and how the standard should be applied.
The discussion must first begin by explaining the authority of
the court, which must be determined in order to understand the
court’s boundaries. If the court only deals with rights, it stands to
reason that the best interest of the child equates to the rights of the
child. In applying and balancing the rights of the child, the court
should approach this in a common sense manner as set forth by
scholars Samantha Brennan and Robert Noggle.3 This method
requires recognizing that children have rights4 and those rights are
equal to the rights of adults.5 However, the child’s rights are applied
in a more limited manner because of a child’s immaturity and
inability to knowingly exercise his or her rights. But once a child
matures, either demonstrated prior to reaching adulthood, or upon
reaching adulthood, the child is able to exercise their rights for
themselves. Until such time, the parents have oversight in protecting
their child’s rights. When the rights of the child begin to conflict with
the rights of the parents, the government may then step in and protect
the rights of the child as in the juvenile court system when a child is
removed from his or her parents after allegations of abuse or neglect.
This Article will argue that “best interest of the child” is the
constitutional right of the child. The court’s authority is found in
Article III of the U.S. Constitution and the Judiciary Act of 1789.
3 See generally Samantha Brennan & Robert Noggle, The Moral Status of
Children: Children’s Rights, Parents’ Rights, and Family Justice, 23 SOC. THEORY
& PRAC. 1 (1997) (observing that children are afforded the same rights that adults
have simply by virtue of being a person; therefore, children have the same moral
consideration as adults, although they can be treated differently from adults).
4 See, e.g., Matter of T.M.H., 613 P.2d 468 (Okla. 1980) (reasoning that where a
child is to be questioned, there is a requirement for a parent, guardian, attorney, or
legal custodian to be present, and the child shall be fully advised of his or her
constitutional and legal rights, including the right to be represented by an attorney);
see also N.J. v. T.L.O., 469 U.S. 325 (1985) (holding that the Fourth Amendment
protects children from unreasonable search and seizures conducted by public
school officials); In re Gault, 387 U.S. 1 (1967) (stating that juveniles have due
process rights against compulsory self-incrimination).
5 Brennan & Noggle, supra note 3, at 22.