Thursday, August 17, 2006

Race as a Consideration In Custody Actions

While we're looking at race and adoption, it seems appropriate to point out that the debate over how and if race should be considered in custody actions is not settled.  A recent Illinois Appeals Court decision affirmed a trial judge's decision to grant sole custody of a 2-year-old bi-racial child to her African-American mother rather than her Caucasion father.  The bitter custody battle included 15 days of trial, 128 exhibits and 15 witnesses (including four experts, the admissibility of whose testimony was a central issue in the appeal).  The trial judge found both parents equally fit to care for the child but favored mother in part because "the mother was able to provide the child with the support she would need in a world that was potentially hostile to biracial individuals."

The court considered the effect of Palmore v. Sidoti, 466 U.S. 429 (1984) and concluded that, while race cannot be the sole factor in a custody determination, "Volumes of cases from other jurisdictions have interpreted Palmore as not prohibiting the consideration of race in matters of child custody."

A strongly worded dissent argued that  "Despite this court's weak protest to the contrary, the remarks in the trial court's letter of opinion show that the court's decision for custody improperly hinged on the sole factor of race: that only an African-American person can properly raise a biracial child in this society."

In re Gambla, 2006 Ill. App. LEXIS 667 (July 31, 2006)
opinion on the web (last visited August 17, 2006 bgf)

http://lawprofessors.typepad.com/family_law/2006/08/race_as_a_consi.html

Custody (parenting plans) | Permalink

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