These statistics suggest that family courts may be confronting the dissolution of racially mixed families more frequently than before. Without mechanisms to determine the importance of racial heritage to healthy child development, judges are left floundering and relying on their own personal conceptions of how much race should matter in such decisions. In practice, this has led to confusion about how and whether to consider race in custody decisions involving biracial children. For example, a New York court, in Farmer v. Farmer, noted that race is not a significant factor in child placement decisions, but cited a substantial number of cases in which race was considered to be significant. Current court practice is difficult to summarize because so few courts are clear about the weight they assign race in custody decisions affecting biracial children. In order to better consider the best interests of the child, judges need a consistent approach to evaluating race in custody disputes that will allow for flexibility while maintaining some degree of predictability.

The best interests of the child test, the test prescribed by statute in most states to determine child placement in custody disputes, takes a broad look at factors which impact the well-being of the child. Under this test, courts have substantial discretion to study parents closely to determine who will provide the best home for the child. While courts need this discretion in order to weigh the myriad of factors which go into an appropriate placement, they also need to carefully consider race’s importance to insure that it does not inappropriately impact the best interests of the child balancing test.

In thinking about how race should be considered in custody disputes involving biracial children, family courts are faced with at least three questions. First, do current court practices benefit or harm biracial children? Second, how do society and the courts perceive race with respect to biracial children, and what role does unconscious judicial racism play in custody disputes? Third, what legal test for granting child custody will adequately consider the best interests of the child while counteracting the impact of unconscious racism in the judiciary?

In order to answer these questions, this note examines the history of biracial people. This note is based on a black-white paradigm as much existing literature is focused on black-white custody disputes, and many of the judicial decisions concerning interracial custody disputes concern families with one black and one white parent. Children with black and white parents have been classified as black by both society and the law. The growing multiracial movement, which calls for people to embrace all of their racial identities, attempts to move race out of the discrete categories fostered throughout American history. This movement challenges courts by claiming that a person can have a number of racial identities, and forces courts to reconsider whether they can apply the more traditional, narrow definitions of race.