The Volokh Conspiracy

I quoted and criticize below an Iowa appellate decision that said (paragrpah break added):

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.

My view is that courts ought not take the view that children with some Korean blood ought to be taught Korean culture, or ought to live in places that have "diversity." These factors should not be considered in the best interests of the child analysis, absent extraordinary circumstances (which I briefly discussed in the original post).

Some commenters criticized my criticism, reasoning along these lines: "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." "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."

I agree that courts are often guided by what the parties argue. But it seems to me that if a court discusses a particular fact, it implicitly suggests that the fact is legally relevant, and that the case might have come out differently — not would surely have come out differently, but might have come out differently — had this fact been absent. And if it would be improper (or even unconstitutional) for a court to make such a fact relevant, then the court should be careful not to recite the fact in way that suggests that the fact is relevant.

Consider two analogous passages from hypothetical Iowa Court of Appeals opinions. First:

Harold argues that Anjela is an American and it is important for her to be taught a maximum of patriotic values. He contends that Anjela's paternal grandmother, Song, is a patriot and can expose Anjela to the glory of American greatness. We recognize the importance of Angela's patriotic upbringing.

However, Casey is very supportive to Anjela's relationship with Song and Anjela's patriotic education. At the time of trial, Casey was planning to enroll Anjela in the local Daughters of the American Revolution children's education classes. In addition, the areas where Casey and Harold live have approximately the same amount of strong pro-American feeling. We believe Anjela would have sufficient opportunities to learn patriotism under Casey's care.

Second:

Harold argues that Anjela is a grandchild of Christians and it is important for her to be raised Christian. He contends that Anjela's paternal grandmother, Song, is a Christian and she can expose Anjela to Christianity. We recognize the importance of Angela's being raised in the faith of her ancestors.

However, Casey is very supportive to Anjela's relationship with Song and her interest in Christianity. At the time of trial, Casey was planning to take Anjela to church often. In addition, the areas where Casey and Harold live have approximately the same amount of Christian population. We believe Anjela would have sufficient opportunities to be involved with her religious heritage under Casey's care.

I take it that we'd treat these hypothetical decisions as strongly suggesting that a parent's lack of patriotism and lack of willingness to raise a child Christian (or at least to raise a child in the child's ancestors' religion) would count against the parent in the custody decision. In this particular case, the parent avoided this by being suitably patriotic and suitably open to raising the child Christian. But we'd read this opinion as strongly suggesting that in another case, a parent might lose custody from being insufficiently patriotic or insufficiently willing to raise the child in the right religion.

If you were a lawyer who saw a court decision like this, would you advise your client, "Oh, never mind, if you're raising your child not to value patriotism [or religiosity], and your ex-spouse argues that this is against the child's best interests, a local court would just ignore that. Sure, in this decision the court mentioned these factors, but only in a summary fashion, and only to rebut one side's argument. If Casey hadn't been raising Anjela patriotic or Christian, the court would still have ruled for Casey, and dismissed Harold's arguments as irrelevant."?

Or would you believe that you should say, "It's hard to tell for sure, but it looks like this court thinks that whether a parent is giving the child a patriotic [or religious] upbringing is potentially relevant. After all, it did discuss these facts, rather than just dismissing Harold's arguments as irrelevant; and it ruled for Casey on the grounds that she was teaching the child patriotism [or religion], rather than on the grounds that it doesn't matter whether she was teaching the child this way. So if you want to improve your chances of keeping custody, you'd best show a willingness to teach the child patriotism [or religion]."?

I would say the latter: The court's decision would signal to me that there's a substantial likelihood that a court would prefer parents who are providing patriotic or religious upbringings over those who aren't. And if I'm right, then the same should be said about the real Iowa Court of Appeals decision that I quoted at the start of this post.

One could still argue that it's proper for the court to suggest that parents who teach their quarter-Korean children about their Korean "ethnic heritage" should be preferred (all else being equal) over those who don't want to teach their children this way, though I disagree (for reasons I mentioned in the earlier post). But I don't think the court's discussion can be dismissed as a merely passing reference to the parties' arguments, with no suggestion about the way the court might rule in future cases.