Slam the Gavel welcomes Michael Sayen back on the show for Part 2. Michael was last on Season 3, Episode 25. Much discussion on Parent's Rights vs. Children's Rights.
John Locke wrote, the purpose of government is to secure and protect the God-given inalienable natural rights of the people. The Declaration of Independence says, "it is [our] duty, to throw off such Government, and to provide new Guards for [our] future security." The purpose of the government is to protect our rights and make it safe to practice our fundamental liberties. That is the job of the government.
Sometimes others threaten our unalienable rights, so the government will create laws to govern their actions. Our rights are given by God and fundamental. The US Supreme Court has said that our fundamental rights must be protected by the State. Such as life, liberty, and property (14th Amendment). The Supreme Court said for the courts to take away a fundamental right, it must be done with strict scrutiny. Strick scrutiny says there must be a "compelling" State interest, and it must be narrowly tailored.
The Best Interest of the Child is the State (or court) saying there is a compelling state interest situation that causes the State to violate a parent's fundamental right to raise their child. The US Supreme Court has said time and time again, that the parent knows what is in the best interest of their child, not the State (Troxel v Granville, 2000). And that right must be narrowly tailored to protect the parent's rights to raise their child without government interference. Because, a parent's right to raise their child is fundamental (Troxel v Granville, 2000).
However, the best interest of the child was created to express the State's compelling interest to interfere with the parent's rights. They are putting the State's rights over the parents to safeguard the child. The problem with the State using the best interest of the child standards is that they are not showing compelling reasons why the State must be involved, or how the child is in danger from the parent. Therefore, the State is not using the best interest of the child in family court cases, but they are exercising the child's constitutional rights over the parent. The problem with this is, since the child is under the parent's authority, the State is superseding the authority of the parent to rule against the parent. The way the State Court's justify this action is an ancient doctrine called Parens Patrie.
Parens Patrie is an old term that says, the Nation is the parent of the child. It gives the government the power to supersede the parent's authority. They claim this is to protect the child from harm (endangerment). Therefore, this is another way to say, "compelling State's interest." This doctrine was used both in ancient Rome and England. However, it was used in England in 1608 to eventually say, the King had supremacy over children when the parent was no longer fit "unfit" to parent their child, or the child was abandoned by the parent and given up for adoption. Parens Patrie cannot be used as a doctrine in family court (Juvenile Court) because the government does not have the supremacy over its citizens (Leviathan).
To reach Michael Sayen: [email protected]
To find Michael’s book: https://www.amazon.com/Remarriage-Adultery-Michael-S-Sayen-ebook/dp/B098DY3CHJ/ref=mp_s_a_1_3?dchild=1&keywords=sayen&qid=1627936700&sr=8-3
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