struggled in the past with defining terms and the exercise of
constitutional rights. Much like the term “obscenity” in 1964, the
“best interest of the child” standard is “subjective, difficult to
articulate, and differs based upon the unique facts of each case.”12
Justice Stewart will always be remembered for his definition of
“obscenity” in Jacobellis v. Ohio, when he stated:
I shall not today attempt further to define the kinds of
material I understand to be embraced within that
shorthand description; and perhaps I could never
succeed in intelligibly doing so. But I know it when I
see it, and the motion picture involved in this case is
After the ruling in Jacobellis, it took nine years for the definition of
obscenity to develop under the law, and for the courts to feel
compelled enough to establish a definition with the Miller test.14
Today, however, we still do not have a working definition of “best
interest” as it relates to the precious lives of children and their
The “best interest of the child” standard is still applied in an
“I know it when I see it” fashion.15 In fact, “[t]he term is so difficult
to define that it has been omitted from the sixth edition of Black’s
Law Dictionary (1990) and from other reference tools designed to
translate the law from legalese to a common language understood by
those who are affected by the law.”16 Further, “[t]he ‘best interest of
the child’ standard often operates as a fiction to soothe the
12 Wayne, supra note 1, at 36.
13 Jacobellis v. Ohio, 378 U.S. 184, 197 (1964) (Stewart, J., concurring) (emphasis
14 See Miller v. California, 413 U.S. 15, 25 (1973) (finding obscenity is not
protected under the First Amendment and going on to define obscenity as when
“‘the average person, applying contemporary community standards’ would find
that the work, taken as a whole, appeals to the prurient interest, . . . whether the
work depicts or describes, in a patently offensive way, sexual conduct . . . and . . .
taken as a whole, lacks serious literary, artistic, political, or scientific value”).
15 Wayne, supra note 1, at 36.