20. What About the Best Interest of the Child?
The best interest of the child principle is an age-old concept that first emerged as an articulate standard in American adoption law in the mid-1800s.1. The best interest of the child is a dispositional standard, designed to guide judges when making decisions that concern children. Under traditional American family law such decisions only fall to a judge after a parent has been convicted of abuse or neglect, or in a divorce context when there is conflict between competing parents. The U.S. Supreme Court has consistently recognized “that natural bonds of affection lead parents to act in the best interests of their children.”2. American law has historically operated on the presumption that parents are fit to make decisions in the interest of their children unless proven otherwise.
A new 'human rights' application of the Best Interest of the Child principle would abolish the presumption of parental fitness. Under this misapplication, judicial prerogative to determine the child’s best interest becomes the default, rather than a last-resort reserved for when a parent has been proven unfit. Parents’ private choices for their children can be called into question any time government personnel disagree with them.
International law expert Geraldine Van Bueren clearly describes this emerging human rights application:
Best interests provides decision and policy makers with the authority to substitute their own decisions for either the child's or the parents', providing it is based on considerations of the best interests of the child. Thus, the Convention challenges the concept that family life is always in the best interests of children and that parents are always capable of deciding what is best for children. 3
The encroachment of this reinterpretation, the family court equivalent of "guilty until proven innocent," is one reason to support the Parental Rights Amendment. Protecting children begins with the common sense recognition that the vast majority of parents love and protect their children better than a judge or government agent can.
1. Lynne Marie Kohm, “Tracing the Foundations of the Best Interests of the Child Standard in American Jurisprudence,” Regent University School of Law, 9 (2009).
2. Parham v. J. R., 442 U.S. 584 (1979). View more about the Supreme Court's position on parental rights.
3. Geraldine Van Bueren, International Rights of the Child, Section D, University of London, 46 (2006).