The Best Interest Of The Child (BIOTCh) in the family court is fundamentally contrary to the rule of law, as law has been understood since Hammurabi in ancient Babylon. Plato advocated rule by a philosopher king, but his student Aristotle convincingly explained the superiority of rule of law. Western civilization is built on the idea that Aristotle was right.
All American courts are based on rule of law, except that the family court clings to the idea that a judge can act as a philosopher king and decide the best interest of a child. It cannot be done without punishing parents and others for allegations and transgressions that are not contrary to any laws, rules, regulations, or policies that are written anywhere. The idea that a judge or psychologist can read some legal briefs or interview the parties and then make objectively make child-rearing decisions is as ludicrous as Plato's idea.
The main argument against Plato's idea is that the wisdom and objectivity required is unattainable. But even if a judge of infinite wisdom could be found, there are at least two other reasons that such a judge would be unacceptable.
First, if a judge is not ruling based on written rules, then there is necessarily an arbitrariness to his decisions, and we are not free men if we live under such arbitrary rule.
Second, such judicial actions destroy incentives. Eg, even if a judge could be found to assess taxes in a way that wisely and fair redistributes the wealth, then incentives to earn money would be dampened because men could not reliably predict what they could keep.
These same considerations apply to family court. Parents do not have the freedom and authority to be parents if they can always be second-guessed by a family court judge. And court interventions create bad incentives.
Suppose this court finds that a judge an order grandparent visits if there has been a history of such visits and the judge's opinion is that the BIOTCh requires continuing such visits. Other parents may see this, and decide that allowing grandparent visits is dangerous because it exposes the family to court intervention. Thus one BIOTCh order in favor of grandparent visitation may result in other grandparents being refused visits.
The BIOTCh is the core of the problem here. If the law said that all grandparents had a right to visit their grandkids for 2 hours a week, then the arguments in this brief would not apply. The problem occurs when some judge tries to play God and apply the BIOTCh. The BIOTCh is inherently unjusticiable and contrary to legal standards.
Most states make no attempt to define the BIOTCh at all. A couple of states (I only know of Michigan and Florida) list a dozen factors to consider. But the judge has no guidance on how to evaluate or rank the factors. When it comes to a simple question like grandparent visits, the judge must rely on his gut instincts.
Many states rely on psychologists or other so-called experts for recommendations. But even the psychology profession is largely of the opinion that these recommendations are unethical. Their expertise is in treating mental disorders, and they usually have no professional competence or basis for making a decision about grandparent visits.
Our Western civilization is based on the idea that parents will have the autonomy to rear their kids as they believe is best. This principle has served us well for millennia. Maybe an exception should be made to require grandparent visits. This brief does not take a position on that. But such an exception should be carefully considered by the legislative, and be codified as predictable regulations. Requiring such an exception based on some judge's opinion of the BIOTCh is unpredictable, unworkable, and contrary to everything our justice system stands for.