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Child Custody Decisions and the Constitution:

Many comments on the recent child custody thread point out that judges are supposed to decide based on the best interests of the child, and that they may therefore evaluate parents' childrearing decisions in ways that government officials normally don't. And I agree that this is in considerable measure true.

But there should remain, I think, constitutional limits on what judges can do. The Supreme Court's 1984 Palmore v. Sidoti decision is an excellent example: The Equal Protection Clause bars a judge from granting custody to one parent instead of another based on the other parent's having entered into an interracial relationship (or marriage). And this is so even if the judge sincerely (and perhaps even reasonably) believes that a child might face more social problems if the child is reared in a mixed-race family.

Likewise, many state courts have held that judges can't restrict a visiting parent's exposing his children to his own religion, even when the custodial parent is teaching a different religion, at least in the absence of a showing of likely serious harm to the child. A judge may theorize, perhaps even plausibly so, that it's better for children to learn one religion rather than two rival ones. But he can't implement his theory through an order restricting one parent's teachings, since that would violate the Free Exercise Clause.

Several state courts have similarly held that judges can't hold a parent's lack of religion against him in a child custody proceeding -- again, even if the judge sincerely believes that it's in a child's best interests to grow up in a more religious home. The Establishment Clause bars such preferences.

It seems to me these courts are quite right. Indeed, a parent's Due Process Clause right to have custody of the child may have to give way in divorce cases, since both parents can't live apart and at the same time live together full time with the children, and since even joint legal decisionmaking for the child may be impossible when the parents are unable to get along; but this reason for restricting parental rights generally doesn't justify restrictions on Equal Protection Clause, Free Exercise Clause, Establishment Clause, and Free Speech Clause constraints on the government.

Likewise, perhaps even these constitutional constraints must give way when genuinely necessary to prevent likely serious harm to the child, on a sort of "compelling government interest" rationale; I'm skeptical of that in many instances (see my Parent-Child Speech and Child Custody Speech Restrictions, 81 NYU L. Rev. 631 (2006)), but I see the force of the argument. But I don't think that a simple desire to serve the child's best interests slightly better (in the family judge's view) justifies departing from the constitutional constraints.

That's why I'm so troubled when some family courts do prefer the more religious or churchgoing parent over the less religious or churchgoing parent, in my view a blatant violation of the Establishment Clause. That's why I'm troubled when some family courts restrict parents' teaching their children various disfavored ideologies, whether racism, Communism, support for the propriety of homosexuality, hostility to homosexuality, support for the propriety of polygamy, Wiccanism, and so on. And that's why I'm troubled when family courts suggest that parents could be penalized because they don't teach their one-quarter Korean children things that all-white children needn't be taught, or because they don't live in sufficiently "divers[e]" neighborhoods.

A family court judge necessarily has broad power over children's (and therefore parents') lives. It doesn't follow, though, that this power should be entirely free of the Equal Protection Clause, Establishment Clause, Free Exercise Clause, or the Free Speech Clause.

Public_Defender (mail):
And that's why I'm troubled when family courts suggest that parents could be penalized because they don't teach their one-quarter Korean children things that all-white children needn't be taught, or because they don't live in sufficiently "divers[e]" neighborhoods.

Give me a break. Ethnicity matters in the US. That's what many cities feature St. Patrick's day and Cinco de Mayo are celebrated more in the US than in Ireland and Mexico. San Francisco's Chinese New Year celebration rivals that of almost any city in China. And any major city has tons of Italian Festivals, Greek Festivals, Hispanic Festivals, etc.

Your "American Culture" comment on your last post weakens your case. Given that both parents in a US custody case are usually American, it's usually beside the point. But if one parent might take the kid abroad, I think it would be fair to ask how that parent would keep the kid in touch with his or her American background.

Some kids resent being dragged to ethnic events. But as I heard Jeff Gammage of the Philly Inquirer say, he'd rather his 16 year-old-Chinese-born daughter be mad at him for that than for depriving her of that link to her past.

Some kids reject parts of their ethnicity when they grow up. That's their right. But not teaching them about their background deprives them of that choice.
7.27.2007 7:47pm
dearieme:
How do many of these arguments sound if you go through them, striking out the relevant racial adjective and inserting "Aryan"?
7.27.2007 8:01pm
Public_Defender (mail):
EV, what evidence do you have that says that it's generally in a child's best interest to ignore the child's ethnicity in making child rearing decisions?

Most parents dearly value the right to try to transfer their ethnic identity (however they define it) to their kids. I would hope that domestic relations judges reflect that nearly universal parental value in their decisions.

And again, your posts about ethicity still strike me as poor imitations of Stephen Colbert's I-don't-see-race schtick. You usually do better than that.
7.27.2007 8:05pm
Public_Defender (mail):
How do many of these arguments sound if you go through them, striking out the relevant racial adjective and inserting "Aryan"?

So your argument is that teaching a kid to appreciate her Korean culture is as bad as teaching her to be part of a criminal gang?

No, wait. You're being Stephen Colbert I-don't-see-race sarcastic. You almost had me fooled there. Good one.
7.27.2007 9:01pm
Brian K (mail):

But not teaching them about their background deprives them of that choice.


No it doesn't. The child can always choose to learn about their heritage when they become adults.
7.27.2007 9:29pm
Grange95 (mail):

And that's why I'm troubled when family courts suggest that parents could be penalized because they don't teach their one-quarter Korean children things that all-white children needn't be taught, or because they don't live in sufficiently "divers[e]" neighborhoods.


Aaarrgghh! You clearly insist on reading into the decision in question something that was not there. The court did not say that it was awarding custody based on any ethnic or culture basis. The court did not state that lower courts could deny custody to a parent based on ethnicity, either in this case or in future cases. The court merely acknowledged that the parents in this particular case agreed that exposure to Korean culture was important for their child, and that both parents could provide that clutural experience to their child, thus making the issue a wash in deciding custody.

I don't disagree that a family law court could easily slip across constituionally protected lines in considering religious, ethnic, or similar issues in setting custody. For example, if the court in this case had ruled that custody was being awarded becaused one parent was half Korean and the other parent had no Korean heritage, or if the court had even intimated that such a consideration was permissible under the law, then I would agree that the court had gone too far. But that did not happen in this case. If the violation of constituional rights in the family law arena is an issue you want to raise, by all means raise it. But please stop (mis)using this particular decision as your straw man to start the debate.
7.27.2007 9:29pm
David M. Nieporent (www):
Some kids resent being dragged to ethnic events. But as I heard Jeff Gammage of the Philly Inquirer say, he'd rather his 16 year-old-Chinese-born daughter be mad at him for that than for depriving her of that link to her past.
What do you mean, "her past"? Since when is culture a genetic trait?

I don't know anything about the background of Jeff Gammage's kid, but if one was raised by American parents in the U.S., in what sense is Chinese culture part of one's past?
7.27.2007 9:31pm
Elliot Reed:
What do you mean, "her past"? Since when is culture a genetic trait?
People do sometimes care a lot about their biological ancestry for some reason. Kids who get adopted sometimes go to great lengths to find their adoptive parents as adults. Other people compile genealogies, try to learn about their ancestors' cultures, etc. I am not one of those people, but they exist in significant numbers.
I don't know anything about the background of Jeff Gammage's kid, but if one was raised by American parents in the U.S., in what sense is Chinese culture part of one's past?
Well, if one's American parents were born in China, or one's American grandparents were born in China, I should think it quite likely that Chinese culture would be part of one's past.
7.27.2007 10:01pm
Public_Defender (mail):
I don't know anything about the background of Jeff Gammage's kid, but if one was raised by American parents in the U.S., in what sense is Chinese culture part of one's past?

Um. She was born there.

No it doesn't. The child can always choose to learn about their heritage when they become adults.

So there's no reason for parents to teach their kids anything. They can learn it as adults. Jewish parents shouldn't teach their kids about Jewish culture. Parents with Italian heritage shouldn't teach their kids about Italian culture. No pasta allowed! That would be like sending your kid to an Aryan Brotherhood camp. Parents with Greek heritage shouldn't teach their kids about Greek culture. Taking your kid to a Greek Festival is like taking her to a Nazi rally. Teaching a kid with Korean heritage a traditional form of Korean martial arts is like joining the Council of Concerned Citizens (a Trent Lott favorite). Etc. Etc. Etc.

Volokh Conspiracy posts and comments are usually thought provoking. But these posts and comments are just plain stupid, and borderline racist. Let parents with strong ethnic ties pass those on to their kids.

And if you won't allow parents to pass their ethnic heritage to their kids, what values would you allow parents to pass on to their kids?

One thing that makes the US great is that we have a mix of cultures that generally try to get along, not to wipe each other out. Government-mandated ethnic cleansing is not exactly a libertarian value.
7.27.2007 10:19pm
Public_Defender (mail):
No it doesn't. The child can always choose to learn about their heritage when they become adults.

One more point. One thing an adult cannot learn as well as an a child is language. Children's brains just do a better job. Very few people who start learning a language after ages 8-12 ever speak the language like a native (I forgot the specific range of the cut off, but I'm close).

Childhood is a unique opportunity for parents to put all sorts of ideas and values (including information about ethnic heritage) into their child's sponge-like and developing brain. The ideas and values don't always stick, but most people look back much more fondly on lessons learned from Mom and Dad than from cold facts they learn from books in college.
7.27.2007 10:38pm
Bill Poser (mail) (www):
I'm not impressed by people who condemn EV for not recognizing that ethnicity or race matters. The question is, precisely how do these things affect the best interest of the child. Most of the points mentioned are irrelevant in that they involve the desires of the parents, not the best interests of the child. So far the one point that seems to me to have some value is that, perhaps irrationally, children themselves, when they get older, often seek out the culture of their biological origin.
7.27.2007 11:40pm
Brian K (mail):

So there's no reason for parents to teach their kids anything. They can learn it as adults.

That's not what I said at all. Parents shouldn't be required to teach their kids any specific culture. The decision should be left to the parents and the child. Obviously parents will always teach their kids about some culture...but custody decisions should not be based on what that culture is.


Volokh Conspiracy posts and comments are usually thought provoking. But these posts and comments are just plain stupid, and borderline racist.

You've obviously never read one of the discussions on islam or homosexuality.


One more point. One thing an adult cannot learn as well as an a child is language. Children's brains just do a better job. Very few people who start learning a language after ages 8-12 ever speak the language like a native (I forgot the specific range of the cut off, but I'm close).

While that is true, it is irrelevant. The only way to truly become fluent is to immerse yourself in a language. I don't possibly see how 2 parents that don't speak korean do that.


Childhood is a unique opportunity for parents to put all sorts of ideas and values (including information about ethnic heritage) into their child's sponge-like and developing brain. The ideas and values don't always stick, but most people look back much more fondly on lessons learned from Mom and Dad than from cold facts they learn from books in college.

This doesn't matter. We're talking about if the parents should be required to teach the child about korean heritage. We're not talking about which method would give the child more fond memories when she grows up. Besides, as long as we're discussing hypotheticals, many children also grow up to dislike/hate/despise their parents for repeatedly making them do stuff that they don't like.
7.27.2007 11:48pm
Bill Poser (mail) (www):

The only way to truly become fluent is to immerse yourself in a language. I don't possibly see how 2 parents that don't speak korean do that.


If the parents can afford it, hiring a nanny who speaks the language is a good way to add a language to the child's repertoire. A comparatively cheap way to do this is often to find an au pair from the appropriate country.
7.28.2007 1:25am
Roger Schlafly (www):
There is a line of court opinions saying that recognizes the fundamental constitutional right of parents to make decisions concerning the care, custody, and control of their children. (See Meyer v. Nebraska 1923, Pierce v. Society of Sisters 1925, Troxel v. Granville 2000.) Every time a family court awards primary custody of a child over the objections of a fit parent, the court is violating constitutional rights.

Yes, it is wrong for courts to based child custody decisions on race and religion. But most of the other factors in common use are just as wrong.
7.28.2007 4:46am
Public_Defender (mail):
We're talking about if the parents should be required to teach the child about korean heritage.

The parents here wanted to teach their kids about Korean heritage, and Volokh and many commentators criticized that choice.

If you doubt the importance of teaching heritage to kids, do some research on how the anger of many of the early Korean adoptess (1950's) that their adoptive parents were told not to teach them anything about their heritage.

Another reason for parents to guide the teaching is that it allows the parents to define the culture. The parents can teach the kid what parts of the culture are especially important, and what parts are not (and what parts are negative). The kid can't learn the parents' perspective from books.

In the professor's case, the parents thought traditional Korean martial arts were something they wanted to pass on, but Volokh mocked that choice. I'm glad he's a commentator on constitutional law. He's very good at that. But he'd be a dreadful domestic relations judge.

The consensus of child care professionals (and I hear the scoffing) is that it's in the best interest of kids to understand their ethnic background. If you are one of the people scoffing, do you have any evidence that they're wrong?

Besides, as long as we're discussing hypotheticals, many children also grow up to dislike/hate/despise their parents for repeatedly making them do stuff that they don't like.

But for the most part, after kids become adults, they grudgingly appreciate what their parents did. No always. But for the most part.
7.28.2007 7:33am
dearieme:
Oh well, if "Aryan" doesn't make the point, how about Wahhabi? P.S. And as for Korean culture, would that be North or South?
7.28.2007 11:25am
Eugene Volokh (www):
Public_Defender: Please find one place in which I criticized any parents' choice to teach their children about any culture. My criticism was of the court's suggestion that it could impose such requirements, by considering a parent's willingness to teach the culture as a factor in deciding whether the parent should have custody.

Here, for instance, is what I said in the first post:
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.
How is that remotely criticism of parents' choice to teach children their ancestral culture (something that I neutrally describe as "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)," and say that courts should be agnostic about?
7.28.2007 12:54pm
unhyphenatedconservative (mail):
"Yes, it is wrong for courts to based child custody decisions on race and religion. But most of the other factors in common use are just as wrong."

Roger, cite some examples. I do family law and the factors used by our judicial officers relate to domestic violence against the other parent, siblings or the child in question, suitability of home (i.e. clean, hygenic, try to have separate rooms for the kids and definitely for kids of opposite sex), parent's mental health and compliance with any treatment regimen, willingness of custodial parent to facilitate continuous and frequent contact with non custodial parent (unless NCP is dangerous), drug abuse, whether one parent has let the kid's grades slide and/or whether the custodial parent disparages NCP or allows others to do so in kid's presence. Naturally this is not an exclusive list, as there are always crazy cases and parties but it is pretty representative of the normal analysis. These seem reasonable to me.

So are your judicial officers doing these analyses, something else or do you disagree with me that these are valid criteria?
7.28.2007 5:40pm
Anon Clerk:
Once again, an incredibly impoverished view of what law, and this Judge, was doing. Has EV every actually sat in on (or better yet, tried) a child custody case?

Simply put, if EV is so worried, he should offer to appeal the case on the grounds that it violated any of the constitutional clauses he so casually trots out. The Judge did nothing that EV suggests, and he'd lose. The Court recognized that both parents agreed on a factor of importance in raising their child, and discussed it relatively briefly. But hey, if he's got the free time...
7.29.2007 1:49am
Public_Defender (mail):
Please find one place in which I criticized any parents' choice to teach their children about any culture. My criticism was of the court's suggestion that it could impose such requirements, by considering a parent's willingness to teach the culture as a factor in deciding whether the parent should have custody.

"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."

It's "zany" for a judge to consider the wish of parents' to treach their kid about her heritage but not "zany" for parents to place a high value on it in the first place?

If parents nearly universally consider it important to pass on their heritage, it should not be "zany" for a court to consider that factor. As a result, the custody decision will be made based on factors that may or may not correlate to at least one factor that both parents (and most other parents) agree is important.

Do you have any evidence that it might be in a child's interest to ignore her ethnic background? Do some research into early adoptees from Korean (1950's). Does anyone say it was good for the kids that their parents raised their kids without any regard for their heritage?
7.29.2007 11:28pm
ReaderY:
7.30.2007 4:36am
ReaderY:
"Activities such as the regular commission of sexual acts in the home by unmarried people, failing and refusing to counsel the children against such conduct while acknowledging this conduct to them, allowing the children to see unmarried persons known by the children to be sexual partners in bed together, keeping admittedly improper sexual material in the home, and the partner taking the children out of the home without their father knowing their whereabouts support the trial court's findings of improper influences which are detrimental to the best interests and welfare of the children."

The Pulliam court reversed, 6-1, a Court of Appeals decision which had found otherwise.
7.30.2007 4:40am
Eugene Volokh (www):
Public_Defender: It's zany for a court to treat martial arts education as relevant to the best interests decision, for the same reason that it would be a zany for a court to count in a mother's favor that she is exposing her quarter-Japanese child to manga cartoons, or that she is promising to feed her quarter-Italian child lasagna once a week. Plus what happens if the girl decides that she likes karate better than tae kwon do? Is the mother supposed to say no, because the girl is quarter Korean and not quarter Japanese, so karate isn't as culturally appropriate? Given that the court mentioned the willingness to engage in martial arts training as a factor in the mother's favor, on the theory that this exposes the daughter to Korean culture, must the mother now get the court's clearance, or at least worry that the judge will count stopping the tae kwon do against her? Or is any martial arts good enough, on the theory that it's "Asian," even though Korean and Japanese cultures have had some, er, differences?

I am perfectly happy to see parents expose their children to their culture; as I've said, nowhere in this thread have I criticized parents for doing so (nor would I criticize parents for choosing not do so). I'm teaching my boys Russian, and exposing them to Russian children's works (though to me the main advantage is teaching them some other language, and the only other one I know is Russian). On the other hand, my wife, who is quarter Polish, quarter Portuguese, quarter English, and quarter Scottish was not systematically taught about those cultures, and she came out just fine, too.

What I have constantly opposed is courts suggesting that it is proper for courts to make custody decisions turn in part on each parent's choices on the subject. That is no more proper than having a court choose which religion is in the child's best interests (at least absent a showing that teaching certain religious practices actually poses an imminent risk of serious harm to the child), or whether it's in the child's best interests to be raised Socialist, Democrat, Republican, or Buchanan-Nativist.
7.31.2007 1:29pm