The Ultimate Best Interest of the Child Enures from Parental Reinforcement: the Journey to Family Integrity

• Publication year: 2021

83 Nebraska L. Rev. 1240. The Ultimate Best Interest of the Child Enures from Parental Reinforcement: The Journey to Family Integrity

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John C. Duncan, Jr.*

The Ultimate Best Interest of the Child Enures from Parental Reinforcement: The Journey to Family Integrity

TABLE OF CONTENTS

I. Introduction ..................................................... 1241
A. Exordium ...................................................... 1246
B. The Definition of a Parent .................................... 1247
C. The Bundle of Common Law Parents' Rights ...................... 1248
II. Children's Rights ............................................... 1249
A. The Evolution of the "Best Interest of the Child"
Doctrine ..................................................... 1250
B. The Role of Guardians Ad Litem and Court
Appointed Special Advocates .................................. 1254
C. Weaknesses of the "Best Interest of the Child"
Doctrine ..................................................... 1254
III. Those Longstanding Parental Rights and Duties .................. 1255
A. Parental Right to Custody and Care .......................... 1255
1. The Ultimate Sanction: The Termination of
Parental Rights .......................................... 1257
2. The Future of Foster Care and Its Threat to
Family Integrity ......................................... 1260
B. Parental Duty to Provide Discipline ......................... 1262
1. Juvenile Justice--The State, the
Parent and the Child ..................................... 1266

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C. Parental Right to Children's Services and Control of
Children's Wages ............................................ 1268
D. Parental Right to Make Medical Decisions for Minor
Children .................................................... 1271
1. Abortion, Contraception, and Birth Control
Counseling ............................................... 1273
2. Treatment/Testing for Sexually Transmitted
Diseases ................................................. 1275
3. Parental Consent for Commitment to Mental
Health Facilities ........................................ 1276
4. Caveat: The Irony of the Current Law ..................... 1277
E. Divorced Parents: Individual and Parental Rights
Are Subject to Forfeiture ................................... 1278
IV. The Pendulum--Opposite Ends of the Spectrum:
Commentary on Some of the More Extremist
Positions ....................................................... 1279
A. Do We Really Need a Bill of Rights for
Children? ................................................... 1279
B. The Other End of the Spectrum: The "Parental
Rights Movement" ............................................ 1282
V. The Ultimate Best Interest of the Child Enures from
the Parents' Reinforcement ....................................... 1284
A. The Courts and the Right to Family Integrity .................. 1287
B. The Rebuttable Presumption: Parents Are Acting in
the Best Interests of Their Children .......................... 1288
VI. Some Suggestions and Discussion of the Parents' Rights
and Responsibilities Act ........................................ 1289
VII. Proposed Family Integrity Act .................................. 1290
A. A Proposal for Reform: A Bill to Preserve the Right
of Family Integrity ......................................... 1291
VIII. Conclusion .................................................... 1294
Appendix: S.B. 984--
The Parental Rights and Responsibilities Bill ................. 1295

I. INTRODUCTION

The status of the American family may well be one of the hottest political and social issues this nation faces as we emerge into the new millennium. Most Americans agree that we are in the midst of a dangerous decline in moral and religious values that threatens the very foundation of our society.(fn1) The facts are clear: marriage as a social institution is threatened and child well-being is affected.(fn2) Children,

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particularly teenagers, are lacking basic values such as honesty, selfdiscipline, and a good work ethic.(fn3) In the past thirty years, while the teenage population has remained fairly static, there has been a sixhundred-percent increase in teenager arrests for violent crime; teen suicides have increased more than twenty percent; the number of unmarried teenage mothers has risen three-hundred percent, and the average SAT score has dropped eighty points.(fn4) Concomitant with these facts, parents believe that their authority has been seriously undermined and their ability to discipline their children has been severely diminished.(fn5)

It has been suggested that the cause of this decline may be found in the conflict between our highly valued individual freedoms on the one hand, and the value we place on commitment, community, and stable families on the other hand.(fn6) One legal scholar has expressed the modern changes in family law as having moved from a system that once stressed "the unitary aspect of the family" and "fixed pattern[s] of role distribution" to a system that now emphasizes "[t]he separateness and individuality of the persons who are associated in families and marriages."(fn7) Similarly, another legal scholar has asserted that family rights "cannot be accurately characterized as the individual rights of any family member."(fn8)

The United States Supreme Court has treated the family as an "autonomous entity, implicitly recognizing the parental role in pro

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tecting the child from state action."(fn9) Rather than looking at the child's rights independently, the Court recognizes that the child's parents may assert the child's rights when those rights are threatened by state action. The Court analyzes the issue in the context of the family's interest as opposed to the State's conflicting interest in the welfare of the child.(fn10) This state-parent conflict is demonstrated in three landmark U.S. Supreme Court decisions that deal with parents' right to choose the type of education their children receive. In Meyer v. Nebraska,(fn11) Pierce v. Society of Sisters,(fn12) and Wisconsin v. Yoder,(fn13) the Court found that the State's interest in educating children was not impaired by permitting the parents to choose where their children received their education. If the state's interests are in some way undermined, then the parents' interests will prevail.

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Contrary to U.S. Supreme Court holdings, legislators and state courts, when creating and applying child welfare laws, have tended to perceive the family as individuals with separate, and frequently conflicting rights, rather than the family as a unit with its own body of rights.(fn14) Therein lies the problem. While the twentieth century opened with children having virtually no legally recognized rights, it has ended with an almost single-minded legal approach focused strictly on the "best interest of the child." Many of the early changes were absolutely necessary to protect children from exploitation by both parents and businesses. This Article asserts that the children's rights movement has been too expansive--particularly in the past thirty years--to the detriment of the American family. The unbridled growth of children's rights has led to the inevitable diminishment of parental rights. Parents no longer have the autonomy to raise their children in the manner in which the parents deem appropriate. This stripping away of parental authority has, in too many cases, caused parental apathy or confusion resulting in many parents abdicating their responsibilities to the state, or to the children themselves.(fn15) Parents' rights have become inferior to the rights of their children. The status of parenthood is no longer valued by American society.(fn16)

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This trend must be reversed, the pendulum must swing back toward parental rights, although not totally, so that parents may be reinforced in their role as parents. When parental status is restored, parents will be motivated and inspired to carry out their parental duties and responsibilities with confidence and commitment. That which is in the best interest of the parents, generally enures to the best interest of the child. (As a sidenote, my preference is for the less common spelling "enure," and I will use this form here instead of the more widely used "inure.").

As courts and legislators have created newly recognized rights of children, they almost invariably have done so in the best interest of the child. Yet, the misuse and overuse of this concept as a legal doctrine has actually resulted in children being further victimized at the hands of the State.(fn17) As one legal scholar has warned, there are inherent dangers that exist when "objective" judges and other state officials are delegated to be the determiners of the best interest of a child.(fn18) Such a premise suggests that "good parents" can and should view their children "dispassionately" and "objectively."(fn19) Passionate, not dispassionate, involvement is required between parent and child.(fn20) Dispassion is more akin to emotional detachment, and clearly not the way we expect parents to relate to their children.(fn21) Parents are the best determiners of what is in the best interest of their own children. No one has a better sense of a child's wants, needs, and personality, than his or her own parents. Furthermore, no one cares more passionately about the child and no one has a more vested interest in the child's welfare than the parents.

By continually recognizing more and more rights of children, which frequently contravene the rights of parents, state courts and legislatures have diminished the U.S. Supreme Court holdings that parental rights are fundamental rights.(fn22) The effects of the various state inter

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ferences in the best interest of the child has brought about a vocal and determined group seeking to codify...