Family Law

Child Custody

Does the race of the parent or child have a legitimate role in custody determinations?

Many courts hold that race cannot be the determinative factor in a child-custody case. Several courts have held that race can play a role in a custody determination. Other courts hold that race cannot be considered in a child custody determination.

In Palmore v. Sidoti (1984; see LegalSpeak, p. 297) the U.S. Supreme Court reversed a change in custody award to a father after the mother cohabitated with a man of another race. The trial court determined that the mother’s interracial cohabitation would subject her child to peer pressures and stigma at school. The U.S. Supreme Court determined that the trial court’s obsession with race violated the Fourteenth Amendment of the Constitution. “Private biases may be outside the reach of the law, but the law cannot, directly or indirectly, give them effect,” the Court wrote.

Other courts have determined that race can play in a factor in racial classifications. In Re Marriage of Gambla and Woodson (Ill. 2006; see LegalSpeak, p. 298), an

Illinois appeals court allowed race to be a determinative factor in awarding custody of a couple’s biracial child to the African-American mother instead of the Caucasian father. “Indeed, it appears that so long as race is not the sole consideration for custody decisions, it is not an unconstitutional consideration,” the state high court wrote.

Perhaps the most painful part of divorce involves the issue of child custody. Children are often the unintended victims when a marriage ends, and the law can only do so much to find a solution (iStock).
