Who gets custody of interracial child after a divorce?
Custody of interracial child after divorce can still get a bit icky. Indeed, race/custody cases have even reached the Supreme Court of the United States of America. In Palmore v. Sidoti, for example, the Supreme Court was called upon to decide whether a 1985 Florida court decision that a White mother who had remarried a Black man would lose custody of her White child, was good law and had comported with the Federal Constitution. The Supreme Court decided that the Florida decision was bad and had not passed constitutional muster. The Florida decision stated in part that:
The father’s evident resentment of the mother’s choice of a Black partner is sufficient to wrest custody from the mother. It is of some significance, however, that the mother did see fit to bring a man into her home and carry on a sexual relationship with him without being married to him. Such action tended to place gratification of her own desires ahead of her concern for the child’s future welfare. This court feels that despite the strides that have been made in bettering relations between the races in this country, it is inevitable that [the child] will, if allowed to remain in her present situation and attains school age and thus more vulnerable to peer pressure, suffer from the social stigmatization that is sure to come.
That was a 1985 case so it does go a ways back and I’m sure the Florida courts are more open-minded at this point. But even back then, the Supreme Court disagreed with Florida and said, essentially, that it was improper for a court to base a custody modification solely on race.
But, you may ask, what if the situation were a bit different. In the case above, the situation is that a couple had divorced, and the wife wanted to get re-married to a Black man. The Supreme court said that you can’t take away her custody just for that reason.
But what if you have a situation where a couple is interracial? One is Black, one is White. One is Asian, one is Black. Or any other permutations. What happens if they are getting a divorce? Who is entitled to custody as a matter of law? Oh, and let me throw in another variable: the kids look more like one parent. Either they look Black. Or they look White. Or they look Asian. Or whatever. They do not look “mixed.” Who should get custody?
I don’t think the Supreme Court has spoken to this specific issue. But in New York, there is a case, Farmer v. Farmer, 109 Misc. 2d 137 (Sup. Ct., Nassau County, 1981) the court determined that race will be one of the factors it considers. In that case, the children were granted to the mother who was White. The court reasoned that the parent (the mother) had been the main caregiver of the children and she, more than the father:
was more stable emotionally and economically and had demonstrated consistency in her parenting and childrearing. The mother also met the children’s educational needs and their emotional needs, and had made herself available to the child despite her need to work… The court also opined that the mother offered the best hope of raising the child to adulthood ‘with an adequate sense of self worth which …is the result of being treated as worthwhile, valuable, important and loved.'”
It should be noted that the New York case preceded the Supreme Court case. But what’s the takeaway? Well, race still matters and it will be taken into consideration. But it is not the deciding factor in a custody dispute. Nor will it be given more weight than any other factor. At the same time, though, if the children clearly resemble one parent more than the other, racially speaking, that may subconsciously factor into the race aspect being weighted a bit more than other factors.
How to win custody