The Best Interests Standards: A Comparison of the State's Parens Patriae Authority and Judicial Oversight in Best Interests Determinations for Children and Incompetent Patients

By Griffith, Daniel B. | Issues in Law & Medicine, Winter 1991 | Go to article overview

The Best Interests Standards: A Comparison of the State's Parens Patriae Authority and Judicial Oversight in Best Interests Determinations for Children and Incompetent Patients


Griffith, Daniel B., Issues in Law & Medicine


The Best Interests Standard: A Comparison of the State's Parens Patriae Authority and Judicial Oversight in Best Interests Determinations for Children and Incompetent Patients

The "best interests of the child" standard is the guiding legal standard for child custody disputes and decisions on termination of parental rights. The typical situation in which it is used is in child custody decisions where a judge is called upon to decide in which parent's custody the child's welfare and interests are best served. It is also the leading standard used for a judge's decision whether to terminate parents' rights to the care and custody of their children upon clear and convincing evidence of abuse or neglect.(1) Further, some form of the best interests standard is seen in such diverse areas as guardianship of children,(2) guardian ad litem for estate planning,(3) durable power of attorney for health care decisions and living wills,(4) sterilization,(5) surnames,(6) abortion,(7) and medical treatment of newborns with disabilities.(8)

A growing body of law in which the best interests standard is applied in some form is in decisions involving the withholding or withdrawing of medical treatment from incompetent patients.(9) A discussion of the issues involved in this area is especially timely now that the United States Supreme Court has considered in Cruzan v. Director, Missouri Department of Health its first case involving the constitutionality of "what is in common parlance referred to as a |right to die.'"(10) The decision in these cases generally involves a consideration of whether the incompetent patient's interests are best served by continuing life-sustaining treatment or withdrawing it. At issue is a basic tension involving the patient's personal liberty interests in privacy and self-determination, on the one hand, and the patient's interest in life and the state's interest in the preservation of life, on the other hand.(11)

The purpose of this article is to compare and contrast the use of the best interests standard as applied to children and incompetent patients. In particular, it will compare and contrast its application in termination of parental rights law with its application in termination of medical treatment decisions. The first part will examine the history and development of the standard in relation to children and its use in termination of medical treatment decisions. The second part will compare and contrast judicial involvement in making best interests determinations in these two situations. In particular, it will look at the courts' authority to make these decisions based on the doctrine of parens patriae, which refers to the inherent authority of the state to act as guardian of a person with a legal disability.(12)

This article will argue that the courts' application of the parens patriae doctrine to children is inconsistent with their application of it to persons who are incompetent and in need of life-sustaining treatment or care. A comparison of the courts' exercise of the parens patriae authority in parental rights law and termination of medical treatment decisions illustrates extensive judicial involvement in the former and judicial reluctance in the latter.

That the decision to terminate parental rights falls to the court practically goes without saying. The courts' authority to act as parens patriae is generally imposed, to a greater or lesser extent, by statutory codification.(13) Even so, courts take on the responsibility due to the important interests that have evolved and become well-articulated over time.(14)

In contrast, the lesser developed area of termination of treatment cases reveals a trend among courts to find judicial approval prior to termination of medical treatment as unnecessary and to abdicate the ultimate decision to a third party.(15) While this third party may be court-appointed and neutral,(16) often it is a less neutral family member(17) or close friend. …

The rest of this article is only available to active members of Questia

Already a member? Log in now.

Notes for this article

Add a new note
If you are trying to select text to create highlights or citations, remember that you must now click or tap on the first word, and then click or tap on the last word.
One moment ...
Default project is now your active project.
Project items

Items saved from this article

This article has been saved
Highlights (0)
Some of your highlights are legacy items.

Highlights saved before July 30, 2012 will not be displayed on their respective source pages.

You can easily re-create the highlights by opening the book page or article, selecting the text, and clicking “Highlight.”

Citations (0)
Some of your citations are legacy items.

Any citation created before July 30, 2012 will labeled as a “Cited page.” New citations will be saved as cited passages, pages or articles.

We also added the ability to view new citations from your projects or the book or article where you created them.

Notes (0)
Bookmarks (0)

You have no saved items from this article

Project items include:
  • Saved book/article
  • Highlights
  • Quotes/citations
  • Notes
  • Bookmarks
Notes
Cite this article

Cited article

Style
Citations are available only to our active members.
Buy instant access to cite pages or passages in MLA, APA and Chicago citation styles.

(Einhorn, 1992, p. 25)

(Einhorn 25)

1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

Cited article

The Best Interests Standards: A Comparison of the State's Parens Patriae Authority and Judicial Oversight in Best Interests Determinations for Children and Incompetent Patients
Settings

Settings

Typeface
Text size Smaller Larger Reset View mode
Search within

Search within this article

Look up

Look up a word

  • Dictionary
  • Thesaurus
Please submit a word or phrase above.
Print this page

Print this page

Why can't I print more than one page at a time?

Help
Full screen

matching results for page

    Questia reader help

    How to highlight and cite specific passages

    1. Click or tap the first word you want to select.
    2. Click or tap the last word you want to select, and you’ll see everything in between get selected.
    3. You’ll then get a menu of options like creating a highlight or a citation from that passage of text.

    OK, got it!

    Cited passage

    Style
    Citations are available only to our active members.
    Buy instant access to cite pages or passages in MLA, APA and Chicago citation styles.

    "Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn, 1992, p. 25).

    "Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn 25)

    "Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences."1

    1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

    Cited passage

    Thanks for trying Questia!

    Please continue trying out our research tools, but please note, full functionality is available only to our active members.

    Your work will be lost once you leave this Web page.

    Buy instant access to save your work.

    Already a member? Log in now.

    Author Advanced search

    Oops!

    An unknown error has occurred. Please click the button below to reload the page. If the problem persists, please try again in a little while.