what exactly is the “best interest of the child”? Its definition, at best,
is ambiguous and left to be defined by that particular court. The term
often follows the findings and instructions from the court on the care
of a child.8 “Best interest” becomes a term of art that justifies a
court’s order for certain conduct, or cessation of certain conduct, for
a child’s caregiver.9 In the end, though, the best interest standard
should be less discretionary.
A. Defining “best interest”
“Best interest” should be interpreted as the constitutional right
of the child, equal to parental rights over that child,10 with both rights
being applied in a limited manner and protected from governmental
intrusion by the court. “Best interest” should not be based upon the
government or court’s standards and values.11 When this particular
term is used in court, it is common for individuals affected by it to
search for a definition or guideline for clarification. The court has
act in order to protect and care for children in place of their parents, it is to be
guided by the “best interest of the child.” Id. at 210.
8 For example, every finding involving children under Title 10A and Title 43 of the
Oklahoma Statutes require the court to make determinations in its rulings that they
are in the best interest of the children. The approach is consistent with those found
in other jurisdictions. See In re Foshee v. Foshee, 247 P.3d 1162, 1167 (Okla.
2010); Murrell v. Cox, 226 P.3d 692, 700 (Okla. 2009); In re M.W., 292 P.3d
1158, 1163 (Colo. App. 2012); Sparks v. Sparks, 75 So. 3d 861, 862 (Fla. Dist. Ct.
App. 2011); In re Welfare of the Child of D.L.D., 771 N. W.2d 538, 546 (Minn. Ct.
App. 2009); In re Tanghe, 672 N. W.2d 623, 625 (Minn. Ct. App. 2003); Campise
v. Campise, 671 N.Y.S.2d 980, 981 (App. Div. 1998).
9 For example, in hearings to relocate with children, the court is to determine if the
request is made in good faith. If the request is made in good faith, then the burden
shifts to the non-relocating party to show it is not in the best interest of the
children. See OKLA. STAT. ANN. tit. 43, § 112.3 (West 2013); In re Adoption of
C.A., 137 P.3d 318, 319 (Colo. 2006) (en banc); Fredman v. Fredman, 960 So. 2d
52, 58 (Fla. Dist. Ct. App. 2007).
10 Troxel v. Granville, 530 U.S. 57, 91 (2000) (Stevens, J., dissenting) (explaining
that when the rights of the child are in conflict with the rights of the parents, the
child’s rights should be protected first).
11 See Josh Gupta-Kagan, Children, Kin, and Court: Designing Third Party
Custody Policy to Protect Children, Third Parties, and Parents, 12 N.Y.U. J.
LEGIS. & PUB. POL’Y 43, 95 (2008) (describing the vague, subjective application of
the “best interest” standard seen when a court awarded custody to a child’s
grandparents based on the “Bohemian lifestyle” of the child’s father).