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Want Custody of Your Quarter-Korean Seven-Year-Old? Better Enroll Her in Martial Arts Class:

From what is otherwise a pretty standard "best interests of the child" analysis in a child custody case, Foster v. Waterman, 2007 WL 2119125 (Iowa App. July 25):

Harold argues that Anjela [who is now age 7 -EV] is a child of one-fourth of Korean heritage and it is important for her to be allowed maximum involvement with her heritage. He contends that Anjela's paternal grandmother, Song, is a Korean and she can expose Anjela to Korean cultures. We recognize the importance of Angela's ethnic heritage. However, Casey is very supportive to Anjela's relationship with Song and her interests in Korean cultures. At the time of trial, Casey was planning to enroll Anjela in martial arts instruction. She also rehearsed Korean language with Anjela. In addition, the areas where Casey and Harold live have approximately the same amount of diversity. We believe Anjela would have sufficient opportunities to be involved with her ethnic heritage under Casey's care.

Seems to me that courts have no business deciding, whether in a child custody case or elsewhere, how much and what sort of a connection a child should have "with her ethnic heritage." Some parents want their children to be closely connected to the culture of the child's ancestors (or of some of the child's ancestors). Others don't much care, because they reject the notion of bonds with ancestral ethnic groups; or they may even want to deliberately sever a link with a culture of which they disapprove. A court ought to remain agnostic between these approaches.

There may be some rare exceptions to this principle (though I'm not positive even about these): Perhaps in some situations there might be some serious evidence that one parent's approach to the child's racial background is against a child's best interests, for instance if a child who looks very different from other children is having serious social troubles as a result, but one of the parents isn't doing anything to try to deal with that. If an older child has herself developed some emotional connection with her ethnic background, and wants to continue that connection, a court might count in a parent's favor that parent's willingness to accommodate the child's preferences. And it may well be in a child's best interests to learn a foreign language, though learning Spanish (even in Iowa) is probably more in the child's interests than learning Korean.

But in general, a court shouldn't take the view that the ethnically quarter-Korean (or for that matter that the full-blooded Korean) should get more (or less) in touch with her heritage, or should live in a more (or less) "divers[e]" neighborhood. And it's just zany for a court to view a parent's willingness to enroll the quarter-Korean child in a martial arts class as remotely relevant to the child's best interests.

Rick Wilcox (www):
EV, from looking at this a few times, I can only surmise that the court took this position as a matter of absolute compromise. Since Harold (who I am assuming is the girl's father) is demanding that Anjela be allowed to have a good connection to her heritage, the court is stating that Casey (I'm assuming the mother) is capable of providing it; therefore, using exposure to heritage as a point of advantage in determining custody is moot.

On the other hand, my head spun a few times at the words "martial arts". Makes me wonder what martial art is involved; I would hope, since it's being brought up as a point of heritage, that it would be a strongly-Korean-oriented school of a Korean martial art (Tae Kwon Do, Tang Soo Do, etc.). Any word on this directly, EV?
7.26.2007 8:34pm
Dave N (mail):
I found it curious that the paternal grandmother was Korean (and thus, by implication, the father was half-Korean) but that martial arts classes seemed to balance the scales in deciding the child should be with her mother instead of her father.

I think it is admirable the mother wants her daughter to know of her Korean heritage and has taken some admirable steps to help her daughter understand her heritage. However, I am not sure an hour a week of Tae Kwon Do should count in that equation.
7.26.2007 8:42pm
Glacierbear:
Iowa has had a(ahem) remarkable history of goofy court rulings with regard to child custody. I remember the strange case of Hal "Mark,I Love You" Painter, a writer with a "bohemian" philosophy, fighting his in-laws for the custody of his motherless son in the provincial Iowa courts in the '60s. It doesn't look like their astuteness in assessing the best interests of children has improved much.
7.26.2007 8:42pm
Rick Wilcox (www):
Dave N:
I found it curious that the paternal grandmother was Korean (and thus, by implication, the father was half-Korean) that martial arts classes seemed to balance the scales in deciding the child should be with her mother instead of her father

I don't know that the martial arts classes were put forth as anything other than simply "Anything Harold can do to keep Anjela in touch with her heritage, Casey can do as well". Remember, it was stated that Casey was supportive of Anjela's continued relationship with Song, so I'm fairly certain it wasn't a matter of "Martial Arts = Korean Grandmother".
7.26.2007 8:45pm
Guest12345:
So what are the other three quarters of her ethnic heritage? One would assume that democratic attention to one's background would require support of that as well.
7.26.2007 8:45pm
Sean O'Hara (mail) (www):

So what are the other three quarters of her ethnic heritage?


I'm guessing at least one quarter is US Army, so in addition to martial arts she should be learning to shoot.
7.26.2007 8:51pm
Gaius Marius:
As a litigator, it has been my experience that judges in domestic courts tend to make questionable decisions compared to judges in other civil courts for various reasons including but not limited to lax adherence to rules of evidence and general court rules.
7.26.2007 9:05pm
theobromophile (www):

And it's just zany for a court to view a parent's willingness to enroll the quarter-Korean child in a martial arts class as remotely relevant to the child's best interests.

I can see it now. Little Anjela will decide that martial arts aren't at all her cup of tea; once she takes up field hockey, her father will sue for custody again. Casey will argue that, as her mother was part of a country club, Anjela ought to exposed to bluebloods.

If the "ethnic heritage" issue is with her paternal grandmother only, would it not make more sense simply to allow "grandparent's rights"?
7.26.2007 9:07pm
ReaderY:
Who really knows what the best interest of a child is? We all have theories.

The state's theories are doubtless not as good as the parents', but when people divorce, the state and its theories are all there is.

It's still better than flipping a coin.

Is there any constitutional reason why this shouldn't a factor? Or is it just a question of bloggers disagreeing and chiming in with yet another set of theories?
7.26.2007 9:29pm
tvk:
ReaderY, I absolutely agree with your premise that "the state and its theories are all there is," but somehow I have grave concerns about the conclusion that a single judge should simply get to pick whatever he feels like. Almost any theory has two sides: the father argues that exposing the child to her ethnic heritage is a good thing, the mother will argue that this will make the child less adjusted to mainstream society; the father argues that affording the child a lavish lifestyle is in her best interests, the mother argues that poverty builds character; the mother argues that a custodial parent who spends lots of time with the child is fitter, the father argues that children need independence. As a society we can often agree that certain traits are unambiguously bad (e.g. physical abuse), but close cases, by definition, turn on the factors where society is itself divided.

In these cases the family court judge makes the call. That call, however, necessarily takes one side and is therefore controvertial. Is a richer parent better? Is a doting parent better? Is a non-white ethnic parent better? Family law is necessarily close-and-personal, few things are out of bounds to family courts, and there is very little guidance on how to choose the "correct" side of a social debate. Professor Volokh's suggestion that ethnic connection should simply be out-of-bounds or neutral seems to start the road to a very slippery slope, because there are so many things that a substantial portion of the population believes "should not matter" in parenting, or come to dramatically different conclusions about their importance in parenting. If we agree that ethnic connection is not relevant, what about homosexuality, wealth, whether the parent (especially the mother) works, family social class, etc. etc.?
7.26.2007 9:58pm
Ex-Fed (mail):
Don't courts routinely get involved when one parent complains that the custodial parent has stopped taking the kid to church? How is that different?
7.26.2007 9:59pm
Public_Defender (mail):
Sometimes conservatives and libertatians have an irrational, nearly allergic reaction to any mention of race. EV's post is almost as funny as Stephen Colbert's "I don't see race" schtick, but I don't think it was intentionally funny.

Race and ethnicity sometimes matter in custody cases, a lot. Parents must decide how much ethnic culture to pass onto their kids. Divorced parents necessarily cede some of that decision-making to the court.

Look at what appears to be the case here. The dad argued, in effect, "We should teach her to appreciate her Korean heritage. " The mother argued, in effect, "He's right, and I can do a good job of it, too." The judge just tried to implement what the child's parents have decided is in the kid's best interest. He then weighed the factors that the parents deemed important to the child. That's not judicial activism. That's judicial restraint.

And it's zany to call it "zany."

I also sympatize with domestic relations judges. They must make tough, intrusive, life-changing decisions based on incomplete and frequently distorted evidence.
7.26.2007 10:03pm
TruePath (mail) (www):
Public_Defender:

Yes, parents must decide how much ethnic culture to pass on to their children. Of course in effect a judge in a custody class will end up deciding the same thing. However, this doesn't justify the judge groundlessly assuming that contact with one's ethnic heritage is good.

I mean do you think it would be acceptable for a mormon judge to award custody to the mormon parent because he believes that saving the child's immortal soul is important to her best interests? Could a judge give custody to an atheist parent just because he personally believes religion to be harmful? Similar hypotheticals involving race are easily possible as well.

Clearly 'the best interests of the child' is not meant to mean the judge gets to apply his own moral prejudices. Rather it is only meant to include those things that society uncontroversially recognizes as good, better grades, happiness, health etc.. So short of good evidence that lack of contact with her korean heritage will result in such a harm it isn't relevant to the 'best interests' analysis.

Now one might reasonably believe that the judge should take into account implicit agreements by the parents while married. Thus if both parents clearly agreed that it was important for the child to be involved with her korean ethnicity when they were married and one suddenly changed their mind you might think that was relevant but that is a very different issue.
7.26.2007 10:49pm
TruePath (mail) (www):
Ohh and on the substantive issue of whether a quarter korean girl would be better off in greater contact with her ethnicity my personal experience suggests no.

My girlfriend is half-chinese (via Taiwan) and was raised essentially entierly in an american fashion even though her mother didn't immigrate to the US till grad school. The net effect of this is that she is entierly integrated into mainstream US society who, if anything, view her being half-asian as a positive. She is certainly convinced being raised in this fashion was a benefit.

On the other hand one of my friends who was (unfortunately he passed away) half-japanese and was raised partially in japan seemed to have a much tougher time of it since he was never accepted by the japanese but yet still felt slightly out of place in US society. A similar thing was true of another half-asian girl my girlfriend knew.

When you get to only 1/4 asian the people are often indistinguishable from white and are going to find it particularly difficult to find acceptance in the sorts of ethnic communities in the states that are usually bound together by their differences from the rest of society.

Besides why is it any better for someone of korean descent to be in contact with korean culture than someone of italian descent?. Surely it isn't built into the genes.
7.26.2007 11:06pm
Public_Defender (mail):
Besides why is it any better for someone of korean descent to be in contact with korean culture than someone of italian descent?.

Because that's what the parents appear to believe. That's why. This judge is deferring to the choice of the parents. You are asking the judge to use the power of the State to frustrate the will of both parents. That's about as anti-libertarian as you can get.

All parents must chose how much and what ethnic culture to teach their children. The judge here appears to be honoring the parents' choice. Again, that's judicial restraint.

Of course, maybe you folks are just doing an imitation of Stephen Colbert's "I don't see race" routine. In which case, the joke's on me.
7.26.2007 11:20pm
LogicGuru (mail):
This is just plain racism. Period.
7.26.2007 11:31pm
PloniBenPloni (mail):
clearly the solution is for Noah Feldman to get custody.
7.27.2007 12:18am
Phantom:
I think Public_Defender has it right. The determination of the best interests of the child is, by its nature, an ad hoc and fact based analysis. There is no suggestion that either of the parents is unfit. Both of the parents agree that a connection with her heritage is in her best interests.

Why on earth would a judge depart from that stipulated fact?

If the parents agree on this aspect of the child's upbringing (and generally, isn't the right to control your children's upbringing and education considered fundamental?), and it's not obviously harmful (sorry TruePath, your two data points are not sufficient to establish to this court that it is harmful), what justification does the judge have for completely disregarding their position?

Given that the judge has a limited amount of familiarity with this particular child, displaying such patent disregard for the parents' understanding of the child's best interests seems foolish and imprudent.

--PtM
7.27.2007 1:17am
e:
Phantom &PD

Are the parents really agreeing to the importance of exposure to the culture, or is it more likely that the talk of classes is simply a prudent defense based on the one side's appeal to silly conventional wisdom which says that one should somehow be attached to ancestral ethnicity? If it were "stipulated" (maybe you are right, though I doubt it) then you've got a good point about leaving parenting decisions to the parents. But the court has been called to decide, and need not credit the claim that cultural confusion is in the child's best interest simply because it drew a response/tactical defense. It sets a stage where parents in the future will not be able to simply retort that "my home provides a more stable and nurturing environment, and my choice to focus on the child's current cultural milieu rather than ancestral ties is irrelevant."
7.27.2007 1:35am
Grange95 (mail):
As an attorney from Iowa, as well as one who has actually read the entire opinion, I don't see how your flippant reference to martial arts instruction actually bears any real connection the court's decision. My reading of the opinion is that the parties argued the issue of being able to expose the child to her ethnic background (including martial arts instruction) and the court simply referred to these arguments in a summary fashion. I strongly doubt the court would have included that reference in its opinion if the parties hadn't made it an issue in their briefs and/or oral arguments. So, feel free to poke fun by taking a sentence or two out of context if you feel you want to score some easy laughs, but surely there are better targets for your insightful legal critiques ... Frankly, I expected better out of the esteemed academics who post on this site.
7.27.2007 1:48am
CaDan (mail):
The esteemed academics, alas, tend to view trial courts as nothing rather plebian places far removed from the rarified atmosphere found in their lofty appellate courts.
7.27.2007 2:10am
Loophole (mail):
I agree with Grange95. Everyone is over-reacting. This would be a different matter altogether if the Court's ruling actually had been based on the heritage factor. But it wasn't. The trial court just used a factual finding (i.e., both sides would help foster Korean heritage) to neutralize an argument raised by the losing side (i.e., Korean heritage must be fostered). The bottom line is that the "heritage" argument failed on its facts, thus rendering moot any discussion of its legal significance. Trial courts do this all the time. It increases the likelihood of approval on appeal, given the deference that appellate courts must give to trial court factual findings.
7.27.2007 2:32am
Bill Poser (mail) (www):
This has been a significant issue here in Canada in cases where the child is of aboriginal background. The reason is that there was a period in which many aboriginal children were taken away from their parents and adopted by non-aboriginal families. Aboriginal people now regard this as a form of cultural genocide - reducing their population by raising Indians as white - and have pushed very hard for policies that keep children in the community if possible as well as for the creation of their own child welfare services. For some discussion see this article.
7.27.2007 3:25am
TruePath (mail) (www):
Public_Defender said (quoting me):


Besides why is it any better for someone of korean descent to be in contact with korean culture than someone of italian descent?.

Because that's what the parents appear to believe. That's why. This judge is deferring to the choice of the parents. You are asking the judge to use the power of the State to frustrate the will of both parents. That's about as anti-libertarian as you can get.


I'm not convinced your interpretation is correct but I agree it's a plausible interpretation. Looking back on what you said given your response I realize I misunderstood what you were saying. I (for some reason) thought you were saying that in a divorce situation the couple ceded to the court the right to make the value judgment about the benefits of contact with Korean culture. I see you were not so most of my criticism does not apply.

Really I think the judge's actual decision is more likely an attempt to sidestep a thorny issue than anything deeply significant but it is an interesting theoretical issue.
7.27.2007 5:45am
Porkchop:
So, being a martial artist myself (since 1970 -- I've got lots of belts and certificates in a drawer somewhere), I exposed my half-Korean children to the martial arts by sending them to classes taught by an African-American instructor who taught taekwondo, but who learned from mostly Japanese, but sometimes Korean, instructors. They learned to count to ten in Korean, not to mention "attention," "bow," and "fight." Does that count as culture? Apparently it would in Iowa. By the way, "taekwondo" is not an indigenous Korean martial art in any case -- it is an adaptation of the Japanese shotokan karate learned by many Koreans during the pre-WWII Japanese occupation of Korea. (Don't say that to a Korean, though, lest you offend his national pride, which would be un-PC.)

My wife (born in the United States) can't speak a word of Korean, because her parents consciously chose to speak only English to their children. "Cultural" exposure was only incidental during her childhood. It makes my head spin, though, when I think about what my mother-in-law could do with this case if I ever got divorced. :-0
7.27.2007 9:17am
DR Judge (mail):
Most state divorce statutes require the court to consider the wishes of the child's parents in deciding custody issues. Those include more than just 'I want custody'. Parenting plans often include provisions for religious upbringing, parochial education, days of special meaning, and access to family and ethnic relations. You need not read a constitutional issue into every parental decision.
7.27.2007 10:39am
Richard Aubrey (mail):
Given that the parents each seemed to think a cultural connection was a good idea, the judge seemed to have earned his pay on this one.
However, the idea that the cultural connection must be imposed--what if the kid doesn't want to go?--is silly.
We have a number of kids in our area who are adopted from Korea by white families. Some years ago, a bunch of well-meaning airheads decided they should be put in touch with their culture--well-meaning airheads and liberals think culture is carried by genes--and put together a Korean-food picnic.
A friend who attended said the expressions on the faces of the kids who were being strongly encouraged to eat kimchee for the first time in their lives was sad, and the view of the brainless, beaming smiles of the well-meaning airheads was priceless.
Leave the kids alone, for crissake.
7.27.2007 11:01am
Rhode Island Lawyer:
Porkchop,

I'm curious - what does your wife think now of her parents' conscious decision to limit her exposure to Korean language and culture? Has she taken any steps as an adult to learn more about Korean culture, or has it been totally a non-issue for her? I ask this in all serious.
7.27.2007 11:05am
Rhode Island Lawyer:
Damn, "seriousness".
7.27.2007 11:07am
Porkchop:
Rhode Island Lawyer:

That is a more complicated question than you might imagine. I think that she is somewhat ambivalent about it, but for the most part doesn't care. She has no real interest in getting in touch with her inner Korean. She is a child of the midwestern suburbs, through and through. She was the only Asian, let alone Korean, kid in her town for years, so she learned to get along with pretty much everyone. Her mother, who is divorced, in fact, told her never to marry a Korean -- I don't want to get into those cultural issues, though. I guess I should be grateful for that.

One of my daughters is about to start a Korean language class in college -- not because of some yearning for culture, though -- she just wants to know what Grandma is saying to her (G'ma's) sisters when she goes to visit G'ma.

The part that I really found bizarre about the case is that a 1/4-Korean child would probably be a reject in Korean society anyway. She most likely would not look Korean, and would be treated as something else. (My children vary significantly in their "racial appearance.") Biracial children have not been treated well in Korea as a general matter. (As far as that goes, the "pure" Korean kids (with Korean, as opposed to adoptive, parents) at our local high school in Northern Virginia looked down on my kids.) Why then should the parents and grandparents think that they should be concerned with a culture that would reject the child anyway?
7.27.2007 11:35am
David Cohen:
I, too, am amused by the reliance on martial arts as supplying a background in Korean culture. I'm eager to see the custody case in which the Jewish father argues that his daughter should live with him so she can attend schul, but the non-Jewish mother counters that that's not necessary because she's planning a high fat diet for her daughter.

As for the substance, the rule in custody cases is to use any argument you can think of, and the courts are used to dealing with much sillier arguments than this.
7.27.2007 11:46am
Special Guest:
It seems like people here don't understand the role of the family courts. When you get the courts involved in child custody, to a certain extent the courts stand in the role of parents as a decisionmaker because the parents are unable to make the decisions themselves. The court has to get involved in decisions that parents would usually make privately (i.e., what schools the kids should go to, what religion they should follow, where the kids should live). That's just the name of the game, and that's why family law is such a strange area of jurisprudence.
7.27.2007 11:49am
EconomicNeocon (mail):
Sadly, it appears that the trial judge may have simply been acting prudently by analyzing the ethnic culture factor instead of dismissing it as irrelevant.

Most likely faced with an abuse of discretion standard on appeal, ruling the ethnic culture factor out of bounds is more risky, appealwise, than deciding it. I would think any "Best Interests" test crafted by an appellate court would include a catch-all. It is certainly forseeable that an appellate court might send the case back because the judge failed to duly consider which parent would be more likely to expose the child to the Korean ethnic culture? Personally, I don't buy it, but if I represented mom in this case, I'd be a lot more comfortable presenting mom's martial arts training plan on direct -- declaring the parents equal in this area -- than arguing ethnic culture exposure is overrated in my close.

This judge simply elevated the ethnic culture factor as one consideration among many, finding mom's martial arts training plan to be a credible indicator that mom would expose the child to the Korean ethnic heritage in an adequate fashion. The judge essentially declared the parties even on this factor and decided the ultimate issue on other grounds. This judge's exposure on appeal, at least insofar as the ethnic culture factor is concerned, would appear to me to be zero.

The trouble with the case is that now there's a WestLaw cite to a case out there that says a determination of which parent is more likely to expose the child to his or her ethnic heritage is a factor in a best interests analyis. Lawyers representing the non-ethnic spouse need to make sure this base is covered, lest another judge seizes upon it as the basis to award custody.
7.27.2007 4:37pm
theobromophile (www):

Don't courts routinely get involved when one parent complains that the custodial parent has stopped taking the kid to church? How is that different?

That would be a situation in which the custody agreement requires that the custodial parent take the child to church. As such, it's like any breach of the agreement, such as non-payment of child support or a denial of visitation.
7.27.2007 5:10pm
Hans Bader (mail):
The court's decision creates a de facto racial preference, which can't be justified under strict scrutiny.

If a kid is even a quarter Korean or other minority, the minority parent gets a presumptive preference in getting custody of the child.

That's constitutionally problematic, just like the racial distinction in family law shot down by the Supreme Court in Palmore v. Sidoti.

Any number of Supreme Court justices have said that the "best interests of the child" is too standardless to qualify as a compelling interest.

But racial classifications can only be justified based on a compelling interest.

So "best interests of the child" can't be used to justify it, even if it did advance the "best interests of the child."

And it doesn't advance the best interests of the child.

There's no evidence that whites do a worse job of parenting than minorities.

Would Halle Berry have been better off with the white mother who took care of her, or the black father who abandoned her?
7.27.2007 5:20pm
Grange95 (mail):
Hans Bader wrote:


The court's decision creates a de facto racial preference, which can't be justified under strict scrutiny.

If a kid is even a quarter Korean or other minority, the minority parent gets a presumptive preference in getting custody of the child.



Ummm, the court said no such thing in its decision. The court merely noted that both parents felt eposure to Korean culture was good for their child, and both parents were able to provide that experience for their child; no ethnic-based legal principles were announced or applied. Had the court ruled that ethnicity of a particular parent was a "presumptive preference for granting custody" as a matter of law, then your argument would have merit. But your analysis will need to await another case for application.
7.27.2007 7:08pm