The Role of Race in Child Custody Decisions between Natural Parents over Biracial Children


Since the Supreme Court in 1967 made a marriage between a white man and a biracial black and Native American woman legal in Loving v. Virginia, interracial marriage has increased dramatically. The number of biracial children born each year has also risen. The soaring divorce rate of the last twenty years has also included interracial couples.

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.

In this historical and social context, this note discusses and questions the best interests of the child test in custody disputes. The limitations of that test provide the legal frame for an examination of custody disputes between black and white parents, with a focus on the role of race in determining the best interests of the child. The current lack of a coherent treatment of race, or any framework for its consideration, creates a muddle that often allows lower courts to award custody based on stereotyped, racist assumptions.

Sociological evidence reveals the harm that current court practices cancause biracial children. Studies observing the importance for biracial children of developing positive dual racial heritages highlight the need for courts to consider the ability of parents to transmit positive racial attitudes. Based on these studies, this note concludes that the development of a strong racial identity is a substantial step in a biracial child’s emotional growth and in her development of a strong sense of self. Psychological studies illustrate the critical role parents play in transmitting positive views of both of a biracial child’s racial heritages.

Even though studies show that it is important for biracial children to develop positive dual racial identities, perhaps courts are not the appropriate venue to insure that biracial children receive adequate exposure to both of their racial heritages. Two strong arguments against using courts for this purpose are put forward: that court consideration of race serves to reify racial categories; and that court consideration of race violates the Equal Protection Clause of the Fourteenth Amendment. Neither presents a significant bar to the consideration of race in custody disputes involving biracial children.

Once it is established that considering race is important for the best interests of the child, and that courts do not now adequately address race incustody decisions, this note will suggest an alternative approach to custody determinations. The ability and desire of each parent to help the child learn about her biracial identity should be considered by courts to help determine where the best interests of the child lie. Other alternatives, such as joint custody and ignoring race in custody disputes, are discussed and found lacking. Neither presents a viable option for awarding custody in a manner that protects the best interests of a biracial child.

Suggested Reading

While there are appropriate limitations to a mediator's intervention in family disputes, mediation is a process which can be helpful to families throughout the family life cycle.