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Judicial Discussion of Facts as Endorsement of Their Relevance:

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.

Mary Katherine Day-Petrano (mail):
A long-winded thread, but clearly EV is passionate on the subject. Taking the idea to its extreme, one can only imagine a custody court being required to aculturate children with autism with autistic parents, friends, and teachers under the "best interests" standard. LOL.
7.27.2007 5:26am
Roger Schlafly (www):
Yes, EV is right, but the family courts routinely stick their noses where they don't belong, and consider all sorts of factors that ought to be irrelevant. The judges never really evaluate the "best interest"; that is just a code phrase to mask their own prejudices. Family court decisions are often zany when they do anything other than to defer to the parents.
7.27.2007 5:54am
byomtov (mail):
I don't see why EV writes that the court "implicitly suggests" that ethnic heritage is relevant. The last sentence of the first paragraph he quotes says, "We recognize the importance of Angela's ethnic heritage."

Sounds pretty explicit to me.
7.27.2007 8:54am
Little Loca (mail):
From EV's earlier post: "Others [other parents] 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."

I think you are missing the point. Who cares what the parents want, the question is what is in the best interest of the child. As for that point, your speculation that it shouldn't matter is a bit normative and not pragmatic. That is, when the ethnically Korean child goes out into the world, the world sees her as Korean, thus she is subjected to all the same external pressures that face any minority in this country. Now, on top of that, she has not been socialized with people like her and can't very well find comfort in a network of her peers.

The problem I think is this. White adoption of Korean babies creates a situation in which the child feels culturally white, but isn't given the white reception in the real world that whites get (i.e., white privilege). She is thus left with no cultural identity because she can't be and isn't white (outside of her home life) and can't be and isn't Korean (except superficially).

I think the problem is a lot clearer to minorities than it might be to white people because white people see themselves as part of a neutral culture.

That all said, I certainly don't think Taekwondo cuts it. Indeed, it's offensive on so many levels...
7.27.2007 9:55am
JB:
My impression of the case was like this:

Parents: We agree she should be exposed to Korean culture.
Dad: I can expose her to Korean culture better than her mother can.
Court: Actually, it looks like her mother's doing a good job of that, so we're going to side with her.

In which case, it's clear why it's relevant, and it has nothing to do with the court overprivileging diversity.
7.27.2007 10:38am
Zacharias (mail):
"the court should be careful not to recite the fact as if it was [sic] relevant" ???

A court's acting on "what's best for the kid" is a total scam. I suppose if the kid could be made blond and white to fit in better, the court would order that. Or order a circumcision if the mother is Jewish?

It's a good thing our nanny government hasn't yet perfected ordering us to drive the car that's best for us.
7.27.2007 11:02am
Zacharias (mail):
"the court should be careful not to recite the fact as if it was [sic] relevant" ???

A court's acting on "what's best for the kid" is a total scam. I suppose if the kid could be made blond and white to fit in better, the court would order that. Or order a circumcision if the mother is Jewish?

It's a good thing our nanny government hasn't yet perfected ordering us to drive the car that's best for us.
7.27.2007 11:02am
Zacharias (mail):
"the court should be careful not to recite the fact as if it was [sic] relevant" ???

A court's acting on "what's best for the kid" is a total scam. I suppose if the kid could be made blond and white to fit in better, the court would order that. Or order a circumcision if the mother is Jewish?

It's a good thing our nanny government hasn't yet perfected ordering us to drive the car that's best for us.
7.27.2007 11:02am
Eli Rabett (www):
Well, they ordered us to use seat belts. However to get to the point, the patriotism bit is a red herring and lots of cases have been argued on the basis that the kid was not being brought up in a properly religious environment.
7.27.2007 11:04am
A.G. (mail):
"Casey was planning to take Anjela to church often. She also rehearsed Korean language with Anjela. "

What kind of church is that?
7.27.2007 11:29am
Eugene Volokh (www):
A.G.: D'oh! Fixing.
7.27.2007 11:38am
Bryan C (mail):
If you're a counselor or a social worker then it's ok to discuss whatever random factors the parents can come up with. But I think judges writing legal decisions need to resist that temptation.

What's wrong with:

Parents: We agree she should be exposed to Korean culture.
Court: Actually, I don't care. Your choice of extracurricular activities are irrelevant to determining the best interests of the child and won't be a factor in this court's decision.

I'd certainly prefer that.
7.27.2007 11:39am
crane (mail):
A.G. - Christianity is big in Korea. At least 90% of the Koreans I've met have been Christians, and I mean serious Christians - the kind who go to Bible study at least once a week. I'd say there's a decent argument to be made that going to church is an important part of modern Korean culture.
7.27.2007 11:43am
crane (mail):
Oops, that'll teach me to comment without double-checking the original source.
7.27.2007 11:44am
American Psikhushka (mail) (www):
I'm looking forward to hearing how these clowns define "patriotism".

I'm quite patriotic, but I'm libertarian so I realize that the government is NOT the country. In other words, you can love your country while harshly criticizing your government. So where does that put me on the "patriotism" scale? Ultra-patriotic because I love my country despite government that betrays the founding principles? Or not patriotic enough because I don't agree with every action the figureheads take? Or none of that matters, it just depends on the judge's foibles, fetishes, prejudices, opinions, hobby horses, social engineering goals, etc.?
7.27.2007 12:07pm
paulm:
Mary Katherine Day-Petrano:

Actually, it is commonly argued in the deaf community that deaf children should be raised by deaf parents. Not just for practical reasons (e.g. facility with sign language) but also and primarily because there is a belief that hearing parents will be unable to teach the child deaf "culture" and more likely to treat the deafness as an illness to be corrected, an attitude that is forcefully rejected by many in the deaf community.

Little Loca:

Sigh. Look, I was brought up to believe in the development of a _shared_ culture as an important social project that is undermined by insistence on maintaining and policing perceived cultural differences. I still believe that. I know that this is considered at best naive and at worst a front for more sinister motives by many people who share your understanding of the world, but I don't see any way for me to overcome that presumption of bad faith, especially since you apparently believe that the color of my skin renders me incapable of even understanding your point. So I guess we leave it there.

Folks:

I actually can agree to disagree as to whether, all things being equal, a child might benefit from being raised by people who look like the child. I see the argument for a cultural "like with like" preference and, although on some basic level I disagree with it, I can live with it. _If_ the child's needs are being met. I worry when I start to fear that children's lives and well-being are being sacrificed to ideologies about culture.
7.27.2007 12:25pm
Philistine (mail):

What's wrong with:

Parents: We agree she should be exposed to Korean culture.
Court: Actually, I don't care. Your choice of extracurricular activities are irrelevant to determining the best interests of the child and won't be a factor in this court's decision.

I'd certainly prefer that.



What if the situation were, on the other hand, one parent saying it was important to the child's interest to be exposed to Korean culture, and the other just as vehemently saying it was important to the child's interest to be insulated from that culture?

All other issues about the parents are identical--what does a court decide, and why?

Count me in with the crowd that thinks this is a pretty innocuous issue--the Court taking an issue that is important to one parent, and holding that the other parent can also satisfy the issue--seems more like a sop to the father and insulation from reversal on appeal than an attempt to make an actual ruling on whether exposure to culture is actually in the best interest of the child (no one apparently disputing that issue).
7.27.2007 12:35pm
DiverDan (mail):
I think EV is being overly critical of the Judge in this case. He wants the Judge to rule as a matter of law that exposure to one's ethnic heritage or diversity is not legally relevant to the "best interests of the child" test. But, from a Trial Judge's perspective, that is a legal issue that is subject to de novo review on appeal, and, since both parties obviously argued the point, he is in a no win situation if the losing party takes him up on appeal. Since neither side claimed that the exposure to heritage was irrelevant, neither side will support his legal conclusion on appeal, and the case will most likely be reversed and remanded for consideration of that issue. However, since both parties were arguing for consideration of that issue, he can make himself bullet proof on appeal by discussing it and finding as a factual matter that the issue was a wash for both parties --factual findings are reviewed on a "clearly erroneous" standard, making it very hard to reverse the trial Judge. Even if the Judge agreed with EV that it was irrelevant, he was much better off handling the way he did.
7.27.2007 1:02pm
Kevin P. (mail):
Little Loca (mail):

I think you are missing the point. Who cares what the parents want, the question is what is in the best interest of the child.

LOL. I can't believe you just said that. Maybe parents should just butt out and let the nanny state bring up their children. After all, it would be in the child's best interest.


That is, when the ethnically Korean child goes out into the world, the world sees her as Korean, thus she is subjected to all the same external pressures that face any minority in this country... I think the problem is a lot clearer to minorities than it might be to white people because white people see themselves as part of a neutral culture.


Something about this leads me to believe that you are not a minority yourself. I am a brown skinned immigrant and perhaps you should stop assuming that all minorities think in a certain way, or that they all desire to keep certain things, including all aspects of their heritage. Heck, sometimes they come to America to get AWAY from some aspects of their heritage.
7.27.2007 1:04pm
neurodoc:
The child is one-quarter Korean, so three-quarters something(s) else? What are those other three-quarters parts of her heritage and how are they to be addressed, if at all?

Harold's father must have been other than Korean or Anjela would have been one-half, not one-quarter Korean. For the sake of a hypothetical, let's posit that the unmentioned paternal grandfather was African-American. And what about mother Casey's ethnic background, of which nothing is said (unless it is in the opinion, which I have not read), though we can infer that none of her forebears were Korean, since that would have made Anjela something greater than one-quarter Korean. For our hypothetical, let's posit that Casey's had a Native American parent and a Jewish one. (We could make one of them Japanese, but that might complicate matters too much for our purposes given the historic tensions between Japanese and Koreans.) Did Casey agree with Harold that the Korean antecedents, albeit already attenuated, were of substantially greater consequence than other three-quarters, or was this really about the relationship with grandmother Song (English-speaking or not?)?

Well, one could play with a hypothetical like that one all day. Which ethnic antecedent(s) would be trump over the others. Do the parents frame that question and the court adjudicates (arbitrates?) it, or in the interests of the child ought the court decide both the question and the answer? Ought the court entertain input from the three other grandparents? (I think that last question may be a legally settled one, with the grandparents effectively consigned to the bleachers. But then one of them is being invoked in a fairly significant way, so why not all of them, unless they are clearly irrelevant because dead, not in touch, etc.)

When divorcing parents are fighting over custody it's a mess, and it is up to the court how to make the best of it for the child's sake. I understand EV's concerns, but I don't see how the court can ignore what the parents are arguing about, even if that takes the court where we would prefer it didn't need to go. This court didn't go far off the path, if at all, with their scrutiny of the facts (no circus of psychologists and other "experts"). And as for court's approach somehow encouraging parties to be more disingenuous then they would otherwise be, I don't think a realistic possibility.
7.27.2007 1:18pm
DiverDan (mail):
Whoops - sorry - my comment assumed this was a trial court opinion, &I see that it's from the Iowa Court of Appeals. I still think that the comment is relevant, however, as the Appellate Court handled the issue in a way that precludes reversal by the Iowa Supreme Court - at least on that issue. Also, if neither side was arguing that exposure to heritage and diversity was legally irrelevant, why would an Appellate Court on its own reach a contrary conclusion? Isn't that a bit like an appellate court affirming (or reversing) a trial judge's decision based upon a legal issue that was never raised in the trial court &not briefed by either party? Most appellate lawyers (myself included) would argue that such a tactic is grossly inappropriate, if not downright unethical (and I have been burned by panels of the Fifth Circuit doing this in unreported opinions twice, even though en banc authority in the Fifth Circuit prohibits consideration of an issue neither raised nor briefed).
7.27.2007 1:18pm
AnonObserver:
With all due respect to Eugene Volokh, I think his critique represents a particularly impoverished perception of the role of a judge addressing a family law matter. Despite how it might look for the lofty rafters upon which constitutional scholars sit, family law at the level of practice involves blood and guts decisions that don't always set well when distilled to bloodless paper. Custody battles are often contentious and ugly, and if a judge can do anything to reduce the acrimony, he or she should do so. Assuring the losing party that their concerns, although perhaps not constitutionally appropriate, are at least being addressed may help to clean otherwise salted wounds. I don't know that Judge Eisenhauer intended his words to have that effect, but it's not unlikely.

(Further, it's far from clear that the martial arts lessons are irrelevant or, as Little Loca puts it, offensive. I studied a Korean martial art under a Korean-American instructor for four years in high school. He was fiercely loyal to his adoptive country, but with an undiminished fondness for Korea. I emerged from the lessons with the ability to count in Korean, speak simple pleasantries, and a working knowledge of the alphabet. Certainly it wouldn't get me a degree at Yale, but it wasn't shabby, particularly given the dearth of potential Korean cultural experiences in my area. I'm not Korean at all, but I emerged from the experience with a strong and enduring interest in Korean culture. No one here knows what was before the court, but it's far from clear that the martial arts course should be dismissed.)

If Judge Eisenhauer's decision had hinged on Anjela's contact with Korean culture, perhaps Volokh would have some reasonable grounds for complaint. But the idea that every phrase in a legal opinion solely serves the purposes of precedent ignores the fact that real human beings, with needs that often extend beyond the merely legal, come before a Family Court seeking justice, equity, and above all relief. If a bit of Con Law needs to be fudged, so be it. It may send the Federalist Society into a spell of the vapors, but Con Law isn't the be all and end all of human relations.

These two posts represent a rather academic, and indeed zany, view of law, and why I'm so happy to be quit of law school. The practice of law involves real human beings, and is infinitely better.
7.27.2007 1:33pm
Hattio (mail):
I didn't get a chance to wade through yesterday's comments, but I wonder if people really think extra-curricular activities don't matter. If one paret is exposing the child to dog-fighting at 3, and another wants to give the child music lessons. Or, if one parent wants to put the child in some kind of sport or lessons or something, and the other parent wants to do nothing but buy them a play-station.
7.27.2007 1:52pm
PatHMV (mail) (www):
Didn't we cover this issue at length not too long ago? Eugene, you're not trying to catch people at hypocrisy by bringing up the same issue with a different twist, are you? ;-)

At any rate, my position remains the same, the position that neurodoc made. When two basically decent people get divorced, there may not be any good, objective reasons to favor one parent or the other. The kid is going to wind up living with either the Baptist parent or the Catholic one, and that's going to impact how the kid grows up. Sometimes, the 2 bickering people just need somebody to make a decision, any decision, so live can continue. In our system, that's the role of the judge.

Mind you, I don't think such decisions should have any precedential value. That would turn decisions made for the sake of just having some decision into a rule of law, in an area where the law should not fundamentally be making such calls. In other words, when the judge is acting simply as a referee between two disputing parties on an issue like this, that's very different from having a rule of law requiring the same decision to be made in all like cases.
7.27.2007 2:39pm
Porkchop:
Little Loca wrote:



That is, when the ethnically Korean child goes out into the world, the world sees her as Korean, thus she is subjected to all the same external pressures that face any minority in this country... I think the problem is a lot clearer to minorities than it might be to white people because white people see themselves as part of a neutral culture.


Assuming that the other ethnicities involved are not also Asian, a 1/4-Korean child will not "look" particularly Asian. One of my 1/2-Korean daughters looks as "white" as any other "white" person; one of them looks "100%" "Asian;" and the third is kind of in-between.

I think you assume too much about the "perceptions" of the world. In addition, outside of Hawaii and a few mainland cities, in my experience most non-Asians pay little attention to what variety of Asian someone is. People tend to classify them as "generic Asians," not as a particular ethnicity.

That generic view in itself is somewhat galling to some Asian-Americans, since there is little cultural commonality among so-called Asian cultures. If I may rant for a moment (on behalf of my wife and children): Why other than "looks" and convenience in filling out census forms, would anyone conceive a "group" that comprises Indians and Pakistanis from south Asia, Mongolians and Siberian tribesmen from northern Asia, Samoans and other Polynesians (and maybe including Melanesians and Micronesians, too), Vietnamese, Cambodians, Thais, Koreans, Japanese, Chinese, as well as numerous indigenous groups subsumed within those groups' countries (Pashtuns, Uighurs, Ainu (who may, in fact, be more "Caucasian" than "Asian"), Tibetans, Hmong . . .). They have absolutely nothing in common, yet they are all "perceived" as"Asians"
7.27.2007 2:46pm
Henri Le Compte (mail):
Ironically, the high-minded quest by many to be sensitive to "diversity" and ethnicity is going to lead inexorably back to the worst, most dehumanizing conclusions of racism. Which are: 1) that something "special" and immutable is conveyed to one by one's racial heritage, 2) that by knowing a person's race, you know something essential about that person, and 3) that culture and race are somehow linked.

When this young lady grows up, marries a white guy, and they have children, surely it will be vital for their offspring to be raised with a steady exposure to their one-eighth Korean culture. Maybe the family should be forced to... what? Drive a Hundai? No? Why not? How is it possible to argue against this? Once you open the door to racial dissections-- and all the irrationality that attends this approach to people-- how do you plan on stopping it? At one eighth ancestry? Isn't that kind of... arbitrary?

And how long before we are having "high-minded" and oh-so-well-meaning arguments about whether or not "octaroons" are really "white"? Hmmmmm? And do you know the last time we seriously addressed that question socially? In the antebellum South, when being an "octaroon" could be used to deprive one of the benefits of "whiteness." Two hundered years later, and we have once again social benefits being handed out differentially on the basis of whether or not one is "pure white" or a "quadroon" or a "octaroon," or some other fragment of the racist imagination. And the enlightened progressives of our time are the ones that are carrying this banner!! Sorry, but I find that pathetic and deeply depressing.
7.27.2007 3:21pm
Grange95 (mail):
As one who criticized EV in his original post as perhaps reading too much into the decision, I do appreciate his efforts to expand on his concerns. However, I still think that EV's view of the decision puts far more emphasis on the factor of ethnic background than did the court itself. The question before the court was not, "Is it appropriate to base a custody decision upon consideration of ethnic background?" but rather was "Where both parents agree that exposure to a particular culture is important to the child, can one parent better provide that benefit to the child?" So I think it is important to keep in mind that the court never ruled one way or the other about any legal or constitutional concerns that may attach to use of ethnic background because no such arguments were ever raised by the parties.

To address the underlying concern raised by EV, however, I am not convinced that family law courts are constitutionally barred from consideration of parental concerns over ethnic background, religion, etc. when such factors touch upon how a child is to be raised. To take EV's religious example, it is not uncommon for divorcing couples to have divergent views as to which religious faith, if any, a child should be exposed to. Perhaps one parent wants a Christian upbringing, while the other wants a Jewish upbringing. Or maybe the dispute is Catholic vs. Protestant, or Christian vs. no church at all. A family law court confronted with a custody dispute where a non-custodial parent felt the custodial parent was not taking his/her religious concerns into account in raising their child, the court would almost certainly take that issue into account in fashioning a custody and visitation order. If, for example, the court ordered a custodial parent who was Christian to take their child to a synagogue on certain religious holidays because of the wishes of the non-custodial Jewish parent, the court would not be endorsing either Christianity or Judaism specifically, nor mandatory religious observance in general, as a legally significant factor to consider in awarding custody. Rather, the court would simply be attempting to balance the legitimate wishes of the parents as to the proper way to raise their child, which is an entirely appropriate role for the court.

Turning back to the Iowa case, the mere fact that the court in this particular case chose to consider an issue both parents were concerned about in raising their child (exposure to a particular culture) does not mean the court has somehow adopted a legal principle that ethnicity is a controlling or even a significant factor as a general rule of family law. At most, the court tacitly endorsed consideration of the parents' concerns about exposing their child to a particular culture as part of the court's general consideration of which parent is better able to serve as the custodial parent. This hardly qualifies as some sort of constitutional concern in my book.
7.27.2007 3:29pm
Bob from Ohio (mail):
The zany part of the decision is the idea that "martial arts instruction" is sufficent to expose a child to a culture. It is like using bocce classes for Italian culture or Taco Bell for Mexican culture.

Millions of Americans take martial arts instruction each year. Most are not Asian. My half-Puerto Rican, half-white european neighbor kids take martial arts, are they getting in touch with their Korean heritage?
7.27.2007 3:31pm
AnonObserver:
Bob From Ohio:

The even zanier idea is that anyone who read the decision came away from it with the sense that the judge felt martial arts instruction was sufficient to expose a child to a culture. The judge specifically mentions that Casey was rehearsing Korean language instruction and otherwise making contributions.

The idea that martial arts instruction might contribute, even in a small way, to a knowledge of a culture, on the other hand, is far from fantastic. And that's the most you can read from either the quotation above or the decision as a whole. Unless you'd like to show where the Judge made an argument regarding legal (or any other kind) of sufficiency?
7.27.2007 3:44pm
neurodoc:
If one paret (sic) is exposing the child to dog-fighting at 3...

Michael Vick is somehow implicated in this?
7.27.2007 4:45pm
David M. Nieporent (www):
I was initially inclined to agree with EV on this topic -- I have a visceral reaction to this notion (explicated by Little Loca above) that skin color determines cultural identity, and so I don't think a court should issue a decision which seems to adopt that worldview.

However, in this case, I don't think we ought to read the decision this way.

Assuming we're not dealing with anything which reaches the level of child abuse, parents generally have a right to decide what's in the best interests of their children. When there's a disagreement over that issue in the case of a custody dispute, it's unavoidable that courts will have to mediate that disagreement. But in the absence of a disagreement (and, again, in the absence of child abuse) -- and contra Little Loca -- it shouldn't be the business of the court to substitute its judgment of what's in the child's best interest for that of the parents' judgment.

So if the parents say that exposure to Korean culture is in the child's best interests, then a judge has no business declaring otherwise. (Similarly, if the parents agree that Korean culture is a bad thing and the child shouldn't be exposed to it, a judge should not overrule them and decide otherwise.)

If parents want to adopt a set of six frivolous criteria for evaluating BiotC, the court should apply those, not because the court agrees that those criteria are good ones, but because that should be the prerogative of the parents to determine.
7.27.2007 5:19pm
Porkchop:
Henri Le Compte:

Imagine, if you will a marriage between, say, the son of an Irish/Italian marriage, and the daughter of a French-Canadian/Canadian Indian (er, Native Peoples?) marriage . Their child then marries the daughter of a Danish/Norwegian father and a Korean/Mexican mother. Presumably any grandchild should participate in cross-country skiing, hurling, bocce, hockey, lacrosse, soccer, and taekwondo, all while wearing a horned helmet, of course, and then come home to a tasty dinner of lutefisk, kimchee, spaghetti, pemmican, tacos, kringle, boiled cabbage, and baked beans with molasses and salt pork. Mmm! Smells good! :-)

If one were to move past the octaroon level to the "one drop" standard, one could keep some kids really busy (not to mention well-fed) getting in touch with their heritage.
7.27.2007 6:10pm
Bob from Ohio (mail):
I guess I should not have used the term "sufficent".

I do think it "fantastic" that anyone thinks martial arts instruction contibutes even in a small way to showing that the child is being raised in accordance with her ethnic heritage. (Especially when it was just a plan to enroll her in a martial arts program.)

Unless by "small" one means "microscopic". Then I would agree.
7.27.2007 6:43pm
Dilan Esper (mail) (www):
Rules of thumb from reading too many judicial opinions and legal briefs.

If something (other than a very routine fact like a date or the like) is in the statement of facts, the author thinks its relevant.

If something is in the statement of facts and is not discussed in the legal argument, the author wnats the reader to consider it but knows the reader isn't supposed to under the proper legal standard.
7.27.2007 8:56pm
Anon Clerk:
Bob From Ohio:

See my original comment above about my personal experience. While not Korean myself, four years of martial arts lessons led to a semester and change of Korean language study at college, which isn't too bad.

In any event, you're shifting the standard. Does instruction in a martial art "contibute[] even in a small way to showing that the child is being raised in accordance with her ethnic heritage"? I have no idea, and the Judge doesn't suggest that it does. He merely suggests that the martial arts lessons, in combination with many other factors, will allow a showing of "support for [the child's] interests in Korean culture"? I'd submit that, given the right teacher, it would do so. It certainly did for me.

Maybe you find it "fantastic." Based upon your comments thus far, however, I think you're talking out of your hat.
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