Back to Basics: Justiciability

Is Best Interest a legal conflict that is within the authority of courts to resolve?

Courts exist to resolve legal conflicts. An actual court of law or equity is NOT the court room or the judge, or the political organization of the court and those who work for the court. An actual court is a judge, two or more litigants who have established standing to be litigants, and a properly presented legal controversy between the litigants that is within the authority of a court to resolve.

Justiciability is a very fancy word representing the question of whether a conflict presented to a court is a conflict that the court can properly resolve and thus a proper basis upon which a court may be legitimately established.

Each Claim is a Conflict

A civil action such as divorce or child custody suits can include a great many conflicts and in a very real and technical manner, a proper court must be established for each and every conflict in the action. In criminal actions the appearance of due process is taken seriously and each individual charge is identified and the court’s authority to hear the charge is individually established. Civil law is often a lot looser than this and family law doesn’t even pretend to maintain the appearance of due process with many family law judges openly rejecting that due process even applies in family law proceedings.

I’m NOT making this up. I wrote an entire book, Oath Breakers: Lies Family Courts Tell, just to expose one Texas Appellate Court’s absurd assertion that due process didn’t apply to a father’s constitutional claims in child custody proceedings. Both the United States Supreme Court and the Texas Supreme Court both held exactly the opposite in child custody cases but both courts openly fail to equally protect the rights of fit parents and their children in divorce by refusing to hear appeals from family law cases.


Standing is one of the tools used to establish the legitimacy of any court. Questions of standing go to the heart of whether a conflict is a legal conflict that a court can resolve but standing alone doesn’t fully resolve that question.

State Supreme Courts all over the country are consistent on one thing for certain. They all claim that the best interests of the child in a child custody suit between fit parents is the conflict upon which the custody court is established and the core question that the custody court must answer.

Based upon those claims, NO child custody court in this country is a properly established court because if the conflict being raised is which parent is the “best” parent or what is “best” for a given child then there is NO question that a court of law or equity can legally resolve.

Political vs Judicial Power

Legal conflicts are conflicts that can be resolved by applying clearly established legal rules to legally established facts. One way to look at this is in terms of values. Court’s don’t pick the better value choice, they decide whether the rules were followed when an individual or a political branch government actor makes a policy choice. 

Political conflicts are conflicts over opinions about legal rules such as what the rules should be or how the rules should be executed or enforced. The political branches make choices about which values will have the force of law either by being written into law, by how the written laws are applied, or by how and when they are enforced.

Core Values

Ultimately, the people of this Republic decide what our core values are and we enshrine these in our 50 state constitutions and in our one federal constitution that we know to be supreme over those 50 state constitution because the Supremacy Clause of Article VI of that constitution says so. These constitutions, although aspirational and statements of broad principle, are the ultimate law in this country. They are the highest legal rules that we live by.

The people and the political branches establish the clearly established legal rules. Courts provide a known, predictable, and peaceful means of establishing legal facts and applying those facts to the law to produce reasoned judicial findings of law and based on findings of fact and law order relief that is consistent with those facts and law.

Political Action

What courts do NOT do is validate opinions against vague rules. If the rules are vague, then the courts’ duty is to declare that rule unconstitutional for being too vague to support judicial relief.

What football team is “best” is NOT a choice that can be judicially decided. Who should be this year’s Country Music Association pick for Female Vocalist of the Year is NOT a choice that can be judicially decided. Likewise, who is the “best” parent or what is “best” for a child is NOT a choice that can be judicially decided because there is NO clearly established rule of law that can be applied to establish “best.” NO matter how many “factors” a judge may cite, at the end of the day, the determination of “best” is a values choice regarding what values to apply and what values not to apply in making the choice. 

Best Interest is a Values Choice

It’s even worse than that for child custody courts because the supreme rule of law in this country, the United States Constitution, establishes, according to the United States Supreme Court, that parents have a constitutionally protected right and duty to make child-rearing choices because such choices are choices of what values to apply or in other words, they are choices regarding matters of conscience over which courts have exactly zero authority.

There are very few rights in America that are absolute which family law courts love to tell us. However, the right of conscience, the right to believe, is absolutely protected. When people make choices regarding matters of conscience that result in real world actions, the government may regulate those actions, but the substantive bar against government action is the highest possible substantive bar, strict scrutiny.

The first element of strict scrutiny is that the state must assert a compelling state interest to override any parental choice regarding child-rearing. Proven neglectful or criminal injury to the child is a compelling state interest but what is “best” is simply NOT a compelling state interest. The Supreme Court, in a child custody modification appeal following a divorce between fit parents way back in the 80’s, definitively defined the “best interest goal” to be a merely “substantial” state goal that is just NOT compelling enough to meet the compelling state interest test.

What this means is that what is best for a child in a child custody suit between fit parents simply cannot provide a sufficient justification to establish a court. Certainly, declaring the rights of parents so that each can exercise their parental rights independently with the least possible restriction on the other parent’s ability to exercise their rights presents a justiciable conflict to the courts, but the judge’s opinion, or viewpoint” regarding which parent is the “best” parent and which parent is the “less-than-best” parent or regarding what is best for the child can be no part of the conflict that establishes the court.

Conclusion: Justiciability

This is perhaps the most basic of basics for any court. By going back to the basics or by going to the root cause of the errors being committed by the courts, we are able to identify a cascading list of judicial error and provide a single fix that addresses all of those errors. In one fashion or another, I have either implemented, taught, or consulted on the importance of this principle for the entire 30 years of my professional career at some of the world’s largest and most respected companies and some of the highest levels.

Applying this principle to the law and to the courts, although rarely ever done, is nonetheless a straight-forward exercise that only requires ten or fifteen years of deep study of our country’s legal organization, our country’s laws, and the law of the land for many states. I have invested this time and effort and I have applied my professional training to that knowledge.

The result is simple, NO competent court can be established upon the legal question of what is best for any given child as a threshold for over ruling the child-rearing determinations of a presumptively fit parent because conflicts between parents regarding matters of conscience in child-rearing are nonjusticiable because they involve value choices courts have zero authority to make as a primary consideration against protected rights.

Where best interest is properly applied by judges is in termination cases where even though a parent may meet the conditions established by law to remove the child from them, a judge can intervene and keep the child with that parent, if in that very limited circumstance, the court believes the child would be better off with a less-than-perfect parent than in state care which has its own issues with injuring children.

The key difference is that the court’s best interest viewpoint is NOT even introduced into the proceedings until after the state has met its burden of proof in adjudication and the sentencing or dispositional phase of judicial proceedings has begun. In this case, the court’s viewpoint of the child’s best interest is applied to lighten the penalty imposed, NOT to establish the court’s authority to impose the penalty or to give the court its basic authority to exist as a court.