Where did family court judges get the power to decide what church or which school the children of divorced parents must attend? Family court judges have amassed extraordinary power by co-opting and changing the definition of a time-honored concept: “the best interest of the child.”
This rule originally came from English common law as compiled by William Blackstone in 1765, and meant that parents are presumed to act in their own children’s best interest. For centuries, English and American courts honored parents’ rights by recognizing the legal presumption that the best interest of a child is whatever a fit parent says it is, and should not be second-guessed by a judge.
When states revised their family-law statutes in the 1970s, the “best interest of the child” became disconnected from parents’ decisions, and family courts assumed the discretion to decide the best interest of children of divorced and unmarried parents.
The notion that persons other than parents should decide what is in a child’s best interest is illustrated by the slogan “it takes a village to raise a child.” Those who use that slogan understand “village” to mean government courts, government schools, or government social workers.