CH 5 Custody and Cultural/Racial Heritage

What role do you think considerations of a child's cultural/racial heritage should play in a custody dispute? What are the potential benefits giving weight to this factor? What are the potential risks?

Include evidence, examples, particular laws, or references from the textbooks with your answers.

Chapter Five . Child Custody 208 judges are not supposed to make custody decisions based on the own subjective sense of what is right for a child, or on their assessment rminations would embody a judge, raises an int community standards, as these determin own personal view of the world, and would result in highly idiosyncras a parent's e and unpredictable outcomes. To prevent this kind of subjective decigill meet the em making, the basic rule is that there must be a direct nexus (or connection and able to between the parental attribute in question and the well-being of the chill child learns This approach is intended to limit judicial discretion and keep the child author caut for being th needs at the center of the decision-making process. Parall However, it is worth considering whether it is realistic to think that judges can completely disregard their own views when deciding identify a c that come before them. For example, what if a judge believes th riding the cases into accou cial or same-sex relationships are inherently immoral and disruptive of a the child's social order-how likely is it that he or she will be truly able to set aside express stat these views and dispassionately consider whether an award of custody to cultural ne a parent in such a relationship advances the child's best interest? for examp ing conne include a Considerations of Race and Culture. In the landmark case of Palmore child an op V. Sidoti, 31 the United States Supreme Court reversed a Florida trial court decision transferring custody of a young girl from her mother to her father Sexual A because the mother, who was white, married a black man subsequent to weight, if the parties' divorce. In transferring custody, the trial court focused on the ing custo possibility that the child would suffer from the stigma of living in a racially itself or th mixed household, especially once she began school. In reversing the deci- to is not r sion, the Supreme Court made clear that social prejudice should not deter- relations mine custody outcomes and that the equal protection clause prohibits giv- the beha ing effect to personal bias through the medium of custody adjudications. is not to Moreover, the Court made clear that harm to a child cannot be assumed ital relat even though racial prejudice may subject him or her to "a variety of pres- embody sures and stresses not present if the child were living with parents of the same racial or ethnic origin."32 parent's only wh Although unambivalent in condemning custody decisions premised occurs i on racial prejudice, the Palmore decision has not been interpreted to mean their ow that race is never a permissible consideration in custody determinations. Jud For example, in the case of Gambla v. Woodson, an Illinois appeals court series of held in a custody dispute involving a biracial child, that although it would variety. have been inappropriate for the trial court to have awarded custody to the suming mother" solely because she is African-American," it was not in error for have the chil ing taken into account the fact that she could provide Kira with a "breadth of cultural knowledge and experience" that the father could not offer her, Gay an and was therefore in a better position to prepare her daughter for existing is that "as a biracial woman in a society that is sometimes hostile to such individ tionshi uals."3 In responding to Gambla and the related cases, one commentator absent the lawEvolving Legal Standards 209 raises an interesting cautionary note, writing that "the issue is not whether a parent's ethnic, or cultural background renders him/her better able to meet the emotional needs of a biracial child, but whether a parent is willing and able to expose a child to his / her heritage and culture to ensure that the child learns the skills s/he will need as a racial minority."34 In short, the autho nor cautions against using a parent's background as an automatic proxy for being the more suitable parent. Paralleling this result, the custody statutes in a few states expressly identify a child's cultural background as one of the factors that is to be taken into account when assessing which parent is in a better position to meet the child's needs. In addition, in states where culture is not included as an express statutory factor, some courts have woven a consideration of a child's cultural needs into other statutory criteria for assessing best interest. Thus, for example, in evaluating the importance of maintaining a child's ongo- ing connection with the community in which he or she lives, a court might include a consideration of the extent to which that community offers the child an opportunity to "interact with others who share his or her heritage."35 mes Sexual Activity: Heterosexual. Another important question is what weight, if any, should a judge give to the sexual behavior of a parent seek- ing custody of a minor child? The majority view is that sexual behavior by itself or the fact that a parent is living with a partner she or he is not married to is not relevant unless a detrimental effect on the child or the parent-child relationship is clearly established. In requiring proof of a nexus between the behavior of the parent and the well-being of the child, harm to the child is not to be presumed from the fact that the parent is engaged in a nonmar- ital relationship, as this would be tantamount to a moral pronouncement embodying the judge's subjective views rather than an assessment of the parent's actual ability to care for the child. Rather, such conduct is relevant only where detriment can be shown-for example, where sexual activity occurs in front of the children or where the parent leaves the children on their own in order to pursue a relationship. Judges may respond somewhat differently if a parent is engaged in a series of sexual relationships, particularly if they are of the one-night-stand variety. Uneasiness about this kind of conduct may result in a judge's pre- suming harm rather than requiring actual proof of a detrimental impact on the child.when Gay and Lesbian Parents. Although the unquestioned majority approach is that a parent's involvement in a heterosexual dating or cohabiting rela- tonship will not impact his or her ability to obtain or maintain custody ement somehow harms the child, to gay and