The parens patriae doctrine differs from the in loco parentis doctrine, the later involving care that is “temporary in character and not to be likened to [the permanent situation of] adoption.” Griego v. Hogan, 377 P.2d 953, 955-56 (N.M. 1963). The in loco parentis doctrine can be applied to both governmental and non-governmental entities, and is implicated “when a person [or legal entity] undertakes the care and control of another [person of legal incapacity] in the absence of such supervision by the latter’s natural parents and in the absence of formal legal approval.” Id.

One of the more common situations where there may be threatened interests requiring state intervention involves the interests of minors and others of legal incapacity. Blackstone noted that under early English common law, the English sovereign was “'general guardian of all infants, lunatics, idiots.’” Fontain v. Ravenel, 58 U.S. 369 392-93 (1854) (Taney, J. concurring)(citing 3 W. Blackstone, Commentaries on the Laws of England 48 (1769)). English royalty originally enjoyed virtually unlimited power over the minors of their subjects. Over time, however, the Crown’s power became circumscribed by the rule of law, through the Magna Carta, the Writ of Habeas Corpus, and the continual evolution of the common law.

The United States Constitutional system of Ordered Liberty included additional safeguards. Article I, Section 9, guaranteed access to the Writ of Habeas Corpus. The Tenth Amendment created a vertical system of checks and balances, thereby distributing some powers to federal government, some to state government, and the remainder to the People. Parens patriae power of standing was reserved to the state governments, and could not properly be exercised by the federal government. See Fontain, 58 U.S. at 379, 384, 393; Mormon Church v. United States, 136 U.S. 1, 57-58 (1890)(parens patriae authority of Crown devolved upon the state legislatures); American Loan & Trust Co. v. Grand Rivers Co., 159 F. 775, 782 (W.D. Ky. 1908). The First, Third, Fourth, Fifth, Sixth, Seventh, Eighth, and Ninth Amendments afforded affirmative protections of individual liberty, which further constrained the practical reach of parens patriae.

State government exercises of parens patriae power are also subject to the United States Constitutional system of Ordered Liberty. See Meyer v. Nebraska, 262 U.S. 390, 290 (1923)("Determination by the Legislature of what constitutes proper exercise of police power is not final or conclusive but is subject to supervision by the courts."). Particularly after the enactment of the Thirteenth and Fourteenth Amendments, the Supreme Court applied due process principles and strict scrutiny analysis to limit state invocations of its parens patriae power. Liberty in “matters relating to marriage, procreation, . . . family relationships, and child rearing and education” are “’fundamental’” and “'implicit in the concept of ordered liberty’ as described in Palko v. Connecticut, 302 U.S. 319 (1937).” Paul v. Davis, 424 U.S. 693, 713 (1976). “In these areas . . . there are limits on the state’s power to substantively regulate conduct.” Id.

“[T]he admonition to function in a ‘parental’ relationship [of standing] is not an invitation to procedural arbitrariness.” Kent v. United States, 383 U.S. 541, 555 (1965). States may not exercise such power in a manner that has “all-encompassing scope and . . . sweeping potential for broad and unforeseeable application.” Wisconsin v. Yoder, 406 U.S. 205, 234 (1972). With respect to school teachers, they have only such portion of parental authority as a parent may choose to temporarily commit to the teacher's charge, in order to answer the purposes for which the parent has initiated the employment. Vernonia School District 47J v. Action, 515 U.S. 646, 654-55 (1995)(quoting 1 W. Blackstone, Commentaries on the Laws of England 441 (1769)).

State governments may not properly override parental decisions or terminate custody, unless 1) parents delegate their authority to the state voluntarily and knowingly, or 2) the state demonstrates through appropriate due process that there is clear and convincing evidence that the parents have triggered state parens patriae interests by placing their children in clear and present danger. C.f. Croft v. Westmoreland County Children & Youth Servs., 103 F.3d 1123 (3d. Cir. 1997).

"Fundamental" Liberties

In the parlance of United States constitutional jurisprudence, a "fundamental" right is a civil liberty of paramount importance. Whenever an individual can show that the government is interfering with an exercise of a "fundamental" civil liberty, the government has the burden to prove to a court that the government action can survive the "strict scrutiny" standard of court review.

The strict-scrutiny test upholds state intervention as proper only if (1) an authorizing state regulation exists that can be justified by a compelling state interest, (2) the means chosen are essential to furthering that interest, (3) there is a clear and present danger to the interest the state may lawfully protect, and (4) the tactic used is narrowly tailored and the least restrictive means of discharging the government's compelling interest.

"Non-Fundamental" Rights

In contrast to a "fundamental" liberty, other rights are entitled to very limited protection. Whenever an individual can show that the government is interfering with an exercise of a "non-fundamental" civil liberty, the individual has the burden to prove to a court that the government action fails the "rational basis" standard.

The rational-basis test stops state intervention as improper only if (1) the governmental action does not represent a reasonable means to a legitimate state interest, and (2) the relationship between the reasonable means and the legitimate state interest is not at least debatable. The test does not require the government to use the least intrusive or most creative regulatory scheme to achieve legitimate state ends.

Typically, the "rational-basis" test is used as a constitutional justification for the application of the "best interest of the child" statutory (or regulatory) test. The "best interest" test allows government agencies, and judges, to supplant parental decisions about child raising with their own subjective determinations about what is in a child's "best interest."

The "best interest" test is almost totally arbitrary, and in practice it allows virtually unlimited government interference with families. Additionally, governmental agencies often have structural conflicts-of-interest, often related to budgetary incentives, which cause them to systematically act contrary to a child's bona fide best interest. For these reasons, the "best interest" test is only appropriate in divorce cases, or in an adoption placement decision where the consent of a biological parent and any other blood relative are not feasibly available even after the performance of due diligence. "Best interest" is an inappropriate review in other situations where the biological parents are united in their opposition to the government's proposed disposition of a child.

Contrary to the common assumption, children in government care are not in a safe environment. Thousands of children every year are abused, murdered, or developmentally retarded while under government supervision. Often this suffering is because of systemic, multi-party incompetence, corruption, and neglect. In many cases, financial or political incentives built into state and federal law create conflicts-of-interest which compromise the objective judgment of intervening professionals and adjudicators. Often such incidents represent violations of constitutional protections. See Tumey v. Ohio, 273 U.S. 510 (1927); Ward v. Village of Monroeville, 409 U.S. 57 (1972); Gibson v. Berryhill, 411 U.S. 564 (1973); Connally v. Georgia, 429 U.S. 245 (1977); Young v. United States ex rel. Vuitton et Fils S. A., 481 U.S. 787 (1987).

Due to "shield laws," information about specific incidents of government child abuse are withheld from the public. Mistreated children who are removed often suffer far greater abuse while in government custody. This dynamic is true for government schools, government foster care, government mental health facilities, government prisons, and government child care.

Government officials and majoritarian populations simply do not have interests which are as closely aligned to a seized child as the interests of that child's parent (who is often a member of a demographic minority). Native Americans and Aborigines, as two examples, have suffered terribly as a result of the "best interest" standard, which was historically invoked to abduct, forcibly educate, and ethnically cleanse many thousands of their children.

The United States Congress realized that the "best interest" standard could be easily abused against large numbers of demographic-minority families, and enacted a higher statutory standard pioneered by Native American advocates to provide an extra layer of legal protection. Ironically, many Native American families on Reservations now enjoy a higher level of practical protection for parental liberty than many white American state residents. See Indian Child Welfare Act Subchapter I, 25 U.S.C. 1912.

Attendant Evidentiary Protections

For temporary or preliminary court orders, such as home searches or child seizures, except for termination of parental custody or visitation, the Fourth Amendment of the Constitution of the United States requires probable cause.

For final court orders, or for permanent termination of parental custody or visitation, clear and convincing evidence is typically required under United States law. Procedural due process is also required for the parents and child. At minimum, the government must make an initial showing, by clear and convincing evidence, that a parent has inflicted harm by placing the child in clear, present, and grave danger.

The fundamental right to physical liberty is implicated with any restraint of a child's physical body or sensory faculties in a captive informational environment which occurs without consent of the minor's parents, regardless of whether the government restraint is achieved through compulsory school attendance, government assumption of child custody, involuntary hospital admission, containment in a mental health facility, confinement in a concentration camp, forced national "service" to the community, or incarceration in a criminal correction facility.

Irreparable harm is caused even by temporary derogations of First Amendment familial association, or of other fundamental rights such as Fourteenth Amendment family liberty. Such violations may be stopped by injunction or stay. Elrod v. Burns, 427 U.S. 347 (1976).

Proponents of the "best interest" standard often attempt to trump or entirely sidestep these evidentiary and procedural protections.

Convergence of Parent's Rights and Interests with the Child's Rights and Interests

State interference with the parent-child bond is often framed as a "parental rights" issue. However, the same issue could also be framed as one of state interference with the right of a child. Courts have noted that children have a concomitant fundamental right to the state of well-being which derives from "'the continuity of affectionate care from those to whom [they are] attached through bonds of love."' Roe v. Conn, 417 F. Supp. 769, 776 (M.D. Ala. 1976)(cite omitted); see also In re J.P., 648 P.2d 1364, 1369, 1377 n.13 (Utah 1982)(citation omitted)(“‘prior and fundamental right of a parent to rear his child; and concomitantly, of the right of the child to be reared by his natural parent’”); In re Perales, 369 N.E.2d 1047, 1051 (Ohio 1977). The right described in Roe is sometimes called the Child Liberty Doctrine, for it is a right describing a child's right to be free from harmful and arbitrary state confinement.

A child cannot represent him or herself, and thus has a right to be represented by those who have the most similar alignment of familial, biological, property, and economic interests. When the state interferes with the parent-child bond, it imposes a disinterested caretaker upon the child. Over a long period of time, the service rendered by a caretaker who is motivated by the bonds of affection and/or a close alignment of interests with the child is likely to be quite different than the service rendered over the long term by a disinterested party. Caretakers with professional expertise in some specialty may have a more refined clinical approach to some facet of a child's development, but professionals have no special systemic motivation to apply their services to obtain the maximum benefit for a particular child when assistance requires a significant personal, emotional, or financial investment or risk.

The same concept applies to other concerns that are de facto concerns when parental rights are litigated. For example, parents who are forced to defend against improper state interference often must expend tremendous quantities of time, money, and emotional energy in the effort. Yet if parents' financial resources are depleted defending against state interference, the children of those traumatized parents are also likely to have a lower standard of living and a depleted inheritance.

Consequently, "while there is still reason to believe that positive, nurturing parent-child relationships exist, the parens patriae interest favors preservation, not severance, of natural familial bonds." In re J.P., 648 P.2d at 1377 n.13 (quoting Santosky v. Kramer, 455 U.S. 745, 766 (1982)); see also Parham v. J.R., 442 U.S. 584, 600-03, 610-11 (1979); Dickson v. Lascaris, 423 N.E.2d 361, 363 (N.Y. 1981) ("rule fosters both [parents' and child's] interests by recognizing that they ordinarily converge").

The Parental Liberty Doctrine is really a component of the much broader Family Liberty Doctrine (which overlaps with the Right to Family Autonomy, a facet of liberty oriented towards familial privacy and association). Jurists, journalists, and politicians have tended to focus on "parental rights" or "parental liberty," because parents are often in a better position to assert family prerogatives in protection of the children. Often the public does not understand any term other than the widely-used colloquial expression parental rights. But to be technically precise, the Child Liberty Doctrine protecting the interests of children, as well as the state's interests in general health and safety, are similarly intertwined with and served by the Family Liberty Doctrine. Children and society are better off when children are not treated as creatures or property of the state.

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