Race and Child Custody

Religion, education, extracurricular activities, and medical decisions - these are all common sources of contention between divorcing parents when it comes to deciding how disagreements between parents will be resolved post-divorce. But, what about issues concerning a child's racial identity?

For example, an African American Mother and a White Father are divorcing. Mother and Father have agreed on all other issues of child custody, except issues concerning their child's racial and cultural identity. Specifically, Mother and Father disagree on the types of cultural events to expose their child to, and on how to explain to their child her cultural heritage. Does this matter? Put plainly, does race and racial identity have any impact on child custody determinations in Georgia?

According to Georgia law, the duty of a judge presiding over a child custody case must make his or her determination with the child's best interest in mind. In determining what custody arrangement will benefit the best interests of the child involved, the court may consider any relevant factor, including the following factors:

1. The love, affection, bonding, and emotional ties existing between each parent and the child;
2. The love, affection, bonding, and emotional ties existing between the child and his or her siblings, half siblings, and step-siblings and the residence of such other children;
3. The capacity and disposition of each parent to give the child love, affection, and guidance and to continue the education and rearing of the child;
4. Each parent's knowledge and familiarity of the child and the child's needs;
5. The capacity and disposition of each parent to provide the child with food, clothing, medical care, day-to-day needs, and other necessary basic care, with consideration made for the potential payment of child support by the other parent;
6. The home environment of each parent considering the promotion of nurturance and safety of the child rather than superficial or material factors;
7. The importance of continuity in the child's life and the length of time the child has lived in a stable, satisfactory environment and the desirability of maintaining continuity;
8. The stability of the family unit of each of the parents and the presence or absence of each parent's support systems within the community to benefit the child;
9. The mental and physical health of each parent;
10. Each parent's involvement, or lack thereof, in the child's education, social, and extracurricular activities;
11. Each parent's employment schedule and the related flexibility or limitations, if any, of a parent to care for the child;
12. The home, school, and community record and history of the child, as well as any health or educational special needs of the child;
13. Each parent's past performance and relative abilities for future performance of parenting responsibilities;
14. The willingness and ability of each of the parents to facilitate and encourage a close and continuing parent-child relationships between the child and the other parent, consistent with the best interest of the child;
15. Any recommendation by court appointed custody evaluator or guardian ad litem;
16. Any evidence of family violence or sexual, mental or physical child abuse or criminal history or either parent and
17. Any evidence of substance abuse by either parent.

O.C.G.A. §§ 19-9-3(a)(3)(A)-(Q).

Notably, none of the factors listed above refer explicitly to race or the racial identity of the child involved. However, Georgia law does not confine a presiding judge to the factors listed above. The above listed factors are meant as a guide. Judges may consider all the circumstances of the case at hand in order to come to the correct child custody determination.

Although it goes without saying that a judge will in no case made a child custody determination solely on the basis of race or racial identity, and will definitely not give one parent preferential treatment simply because of that parent's racial identity, a judge may consider what physiological or emotional impact a parent's decisions concerning a child's cultural exposure or racial identity will have on the child involved.

Your Atlanta Divorce Team understands that issues concerning child custody and divorce are often very sensitive and difficult to discuss. If you have questions about divorce, child custody or any other Georgia family law issue, please contact one of our compassionate and understanding family law professionals at Meriwether & Tharp for a confidential consultation.