Ask-A-Lawyer

Q. Can courts take race into account when they are making custody decisions?

A. The U.S. Supreme Court has ruled that a parent’s race is not a permissible factor in deciding a custody dispute between a mother and father.  In the 1984 case of Palmore v. Sidotti, a mother and father, both white, were divorced, and the mother and father agreed the mother would have custody of their three-year-old daughter. Sixteen months later, the father filed a petition to change custody based on changed circumstances. The change of circumstances was the mother’s cohabitation with a black man, who she married two months later.

The trial court found that there was no issue regarding the quality of home either parent could offer and no issue regarding the respectability of either parent’s new spouse. The trial court said that the father’s resentment of the mother’s choice of a black partner was not sufficient reason to take custody from the mother, but the court added that when the girl attained school age and was subject to peer pressure “it is inevitable that [the girl] will ... suffer from the social stigmatization that is sure to come.” On that basis, the trial court gave custody to the father. The Florida appellate court affirmed the trial court’s decision.

The United States Supreme Court agreed to hear the case.  In a unanimous opinion delivered by Chief Justice Burger, the Court reversed on the basis of the equal protection clause of the Fourteenth Amendment. The Court held that classifications based on race are “subject to the most exacting scrutiny; to pass constitutional muster, they must be justified by a compelling governmental interest and must be ‘necessary ... to the accomplishment’ of its legitimate purpose.” The Court acknowledged that a child living with a stepparent of a different race may be subject to prejudice. The Court went on to say, however, “The Constitution cannot control such prejudices but neither can it tolerate them. Private biases may be outside the reach of the law, but the law cannot, directly or indirectly, give them effect.” The custody decision, which was based on the race of the child’s stepparent, was reversed.

Answer by Jeff Atkinson, Professor
DePaul University College of Law, Chicago, Illinois