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Lawyers and judges like to think
of the legal system as race neutral, except in those areas like
the civil rights law where the legal system has determined that
race should be given specific consideration. In recent years,
critical race scholars and other legal scholars (e.g., Gotanda,
Laurence, Harris, Matsuda) have challenged the notion that the
law is in fact color blind. In family law, the claim that law
is color blind could not have been seriously made until fairly
recently; after all, it was less than 30 years ago that the
Supreme Court invalidated statutes barring interracial marriages.
In the area of custody, race remained an explicitly acceptable
consideration much longer, until the Supreme Court's decision
in Palmore v. Sidoti in 1984. In that case, the Supreme
Court reversed an order which had awarded custody of a child
to her father because the court found that the sole grounds
for the trial court decision was the mother's remarriage to
a Black man. The Supreme Court found that the trial court would
not have transferred custody of the child from the mother to
the father but for the mother's remarriage, and that the transfer
would not have occurred if her new husband had been white. The
Court then held that such a custody decision could not be based
on a factor so clearly influenced by racial classification.
Palmore has been praised as a step forward in the law's treatment
of racial issues, as it was expected that it would prevent judges
from making custody decisions on racially discriminatory grounds.
However, in practice, Palmore has made little practical difference;
in interracial custody disputes, courts still generally award
custody most of the time to the white parent, as they did before
Palmore, or, where choosing between a white parent who has remarried
a non-white spouse and a white parent who has not remarried
or has not intermarried, the courts tend to place the child
in the all-white home. When courts have reached the same result
they would have come to before Palmore, they do so by coming
up with apparently racially neutral justifications for their
decisions. An examination of those justifications reveals a
subtle bias in favor of the white parent, or the all-white family.
Moreover, while Palmore could be read narrowly to prevent
race from being used as a negative criterion in custody cases,
it has also been read more broadly as making race a completely
impermissible criterion in custody decisions. This has had
unintended consequences. For example, as Gotanda pointed out,
the Supreme Court failed to recognize that it could have been
a positive good for Melanie Palmore to live in a multi-racial
family, which has inhibited trial courts from considering
that possibility. A further result is that, since Palmore,
courts appear to have been more hesitant to address explicitly
as a factor in a custody decision, the psychological issues
related to race for the child of an interracial marriage Ironically,
the pre-Palmore cases tried with more sophistication to address
those issues than have more recent cases.
Not surprisingly, the result of the courts' discomfort in
addressing racial issues explicitly is that courts decide
for the parent who seems most familiar to them; so the most
frequent result in interracial custody disputes is that custody
is awarded almost routinely to the white parent.
Standards for decision making in custody cases
In a custody dispute, the judge is guided by the amorphous
standard of the "best interests of the child." That
standard, because it is so subjective, will be applied based
on the judge's personal perceptions of the child's 'best interests."
Frequently, the judge will be guided by a "neutral"
forensic expert, appointed by the court to evaluate the family
and provide guidance to the court. Indeed, New York appellate
courts have gone so far as to suggest that the trial judge
must provide a detailed justification for rejecting the expert's
opinion.
Generally, both the court and the psychiatrist view it as
their role to be "color-blind." However, as several
critical race scholars have pointed out in other contexts,
a claim to be color-blind tends to lead to results that reinforce
white domination and racial subordination. The court's response
to being asked to think about the race of the parties or the
children is likely to be that "color" is irrelevant
to parenting. Alternatively, the court may reject a party's
request that it consider cultural issues by seeing interpreting
it as a request that the court automatically prefer the non-white
parent.
Similarly, in cases where the trial court have awarded custody
to a black parent over a white parent, the appellate courts
have frequently reversed and remanded for further proceedings,
holding that the trial court impermissibly based the decision
on race. However, where trial courts have awarded custody
of a biracial child to the white parent, the appellate courts
do not disturb the decision, and, have held that the trial
court properly considered race, if at all, as only one of
many factors.
The language of the decisions awarding custody to white
parents over black parents, or to white parents over white
parents in interracial relationships, is very revealing. Frequently
the black parent is described as "angry" or "unstable."
This is consistent with the observation that whites tend to
have an exaggerated response to displays of aggression and
anger by black people, and that white mental health professionals
are more likely to describe the behavior of black people as
pathological. This may explain the awards of custody to the
white parents in a great many of the biracial custody cases.
An alternative way that courts apply apparently neutral criteria
to the disadvantage of the non-white parent occurs which the
judge accords a negative value to cultural practices different
from their own. Most judges tend to view the information given
to them from their own perspective
Race has also been raised explicitly in post-Palmore cases
on appeal where one side or the other claims that the trial
court decision was impermissibly affected by race. Where the
trial court has awarded custody to the Black parent and the
white parent objects on appeal that the decision was impermissibly
affected by race, the appeals court tends to agree and remand
the case for further hearings. However, where custody has
been awarded to the white parent and the Black parent objects
that race has been a factor; the appeals courts have consistently
found that some non-racial factor was the decisive factor.
How courts should consider race
How should trial courts and forensic psychiatrists address
racial identity issues in interracial custody disputes? First,
courts should be required (at least in interracial custody
cases and arguably in all) to consider, as one element of
the child's best interests, the ability of each parent to
help the child to develop a healthy racial or bi-racial identity
(i.e., psychological resolution about his or her racial group
membership). At the very least, that would require that the
judge address the racial issues explicitly. This in turn would
require the judge to become conscious of his own racial preconceptions;
or at least to provide the appellate court with information
as to whether or not he was doing so.
Secondly, it would require that the forensic psychiatrist
address explicitly the question of race. Again, this is an
issue that should probably be addressed as to all parents,
but it is certainly critical for children of interracial marriages.
The psychiatrist would then be forced to assess the racial
identity (i.e., psychological resolution regarding the meaning
of his or her racial group membership) level of each parent
and child, so that he would then be in a position to assess
which parent would be most able to assist the child in developing
a healthy racial identity. It should not be sufficient, for
instance, for a forensic psychiatrist to say that a white
parent had once taken his mixed race children to a Kwanzaa
festival as an indicator of the parent's ability to raise
his children with a healthy race identity.
Applying the principles above to facts such as these would
require a far more detailed analysis of the parent's own racial
views and identities.
Conclusion
The belief that courts can be race neutral in custody decisions
by disregarding race is hollow. Except in the unusual situation
where the judge, the psychiatrist, the attorneys and the parties
are all functioning at a level of autonomy or internalization,
a claim to ignore race will more likely result in a decision
framed through the lens of whiteness, a decision that will
recreate and reinforce patterns of white domination.
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