Custody battles occur when two parents have different parenting styles. Naturally, two parents from two different cultures will be prone to different parenting styles and the subsequent conflict that can create. While the parties may have looked past or embraced each other’s racial differences in the marriage…they may make issue of those racial differences during their divorce. Race can be a factor in an Illinois custody determination but race cannot be the only factor.

Custody in Illinois is now split into the twin, usually parallel concepts of parenting time and parental responsibilities. Illinois divorce courts determine the parenting time and parental responsibilities of each parent based on the “best interests of the child.”

“The court shall allocate decision-making responsibilities according to the child’s best interests” 750 ILCS 602.5(a)

AND

“The court shall allocate parenting time according to the child’s best interests.” 750 ILCS 602.7(a)

“In determining the child’s best interests for purposes of allocating significant decision-making responsibilities, the court shall consider all relevant factors, including, without limitation, the following:” 750 ILCS 602.5(c)

AND

“In determining the child’s best interests for purposes of allocating parenting time, the court shall consider all relevant factors, including, without limitation, the following:” 750 ILCS 602.7(b)

The factors for parenting time and parental decision-making are largely the same and are listed as follows.

  • Wishes of the child. 750 ILCS 5/602.5(c)(1) and 750 ILCS 5/602.7(b)(2)
  • Child’s adjustment to his or her home. 750 ILCS 5/602.5(c)(2) and 750 ILCS 5/602.7(b)(6)
  • The mental and physical health of all individuals involved. 750 ILCS 5/602.5(c)(3) and 750 ILCS 5/602.7(b)(7)
  • Wishes of the parents. 750 ILCS 5/602.5(c)(7) and 750 ILCS 5/602.7(b)(1)
  • The child’s needs. 750 ILCS 5/602.5(c)(8) and 750 ILCS 5/602.7(b)(8)
  • The distance between the parents’ residences, the cost and difficulty of transporting the child, each parent’s and the child’s daily schedules, and the ability of the parents to cooperate in the arrangement. 750 ILCS 5/602.5(c)(9) and 750 ILCS 5/602.7(b)(9)
  • The willingness and ability of each parent to facilitate and encourage a close and continuing relationship between the other parent and the child. 750 ILCS 5/602.5(c)(11) and 750 ILCS 5/602.7(b)(13)
  • The physical violence or threat of physical violence by the child’s parent directed against the child or other member of the child’s household. 750 ILCS 5/602.5(c)(12) and 750 ILCS 5/602.7(b)(11)
  • The occurrence of abuse against the child or other member of the child’s household. 750 ILCS 5/602.5(c)(13) and750 ILCS 5/602.7(b)(14)
  • Whether one of the parents is a sex offender, and if so, the exact nature of the offense and what, if any, treatment in which the parent has successfully participated. 750 ILCS 5/602.5(c)(14) and 750 ILCS 5/602.7(b)(15)
  • Any other factor the court expressly finds to be relevant. 750 ILCS 5/602.5(c)(15) and 750 ILCS 5/602.7(b)(17)

On the surface, all of these factors appear to be race neutral. But, it wouldn’t take too much imagination to see how the issue of race could seep in or even dominate each factor.

A parent could argue that the child wishes to speak Spanish at home, that a child feels more comfortable in a diverse neighborhood, that the parents wish to expose the child to their culture, etc.

An Illinois divorce court is supposed to be looking at the content of each parent’s character not allocating custody based on racial stereotypes.

“No unit of State, county, or local government in Illinois shall…utilize criteria or methods of administration that have the effect of subjecting individuals to discrimination because of their race, color, national origin, or gender.” 740 ILCS 23/5(a)(2)

Still, race cannot be ignored in an Illinois custody battle.

“[T]he question of race alone can overweigh all other considerations and be decisive of the question.” Fountaine v. Fountaine, 133 NE 2d 532 – Ill: Appellate Court, 1st Dist., 2nd Div. 1956

While race can be considered, race cannot be the primary focus of an Illinois divorce court.

“Illinois case law provides that race may be considered, but that it may not outweigh all of the other relevant factors.” In re Marriage of Gambla and Woodson, 853 NE 2d 847 – Ill: Appellate Court, 2nd Dist. 2006

The United States’ Supreme Court has deemed that acknowledgment of race in custody disputes is constitutional.

“A core purpose of the Fourteenth Amendment was to do away with all governmentally imposeddiscrimination based on race. Classifying persons according to their race is more likely to reflect racial prejudice than legitimate public concerns; the race, not the person, dictates the category. Such classifications are subject to the most exacting scrutiny; to pass constitutional muster, they must be justified by a compelling governmental interest and must be “necessary . . . to the accomplishment” of their legitimate purpose.

The State, of course, has a duty of the highest order to protect the interests of minor children, particularly those of tender years. [M]ost states…mandate[] that custody determinations be made in the best interests of the children involved. The goal of granting custody based on the best interests of the child is indisputably a substantial governmental interest for purposes of the Equal Protection Clause.

It would ignore reality to suggest that racial and ethnic prejudices do not exist or that all manifestations of those prejudices have been eliminated. There is a risk that a child living with a stepparent of a different race may be subject to a variety of pressures and stresses not present if the child were living with parents of the same racial or ethnic origin.

It would ignore reality to suggest that racial and ethnic prejudices do not exist or that all manifestations of those prejudices have been eliminated. There is a risk that a child living with a stepparent of a different race may be subject to a variety of pressures and stresses not present if the child were living with parents of the same racial or ethnic origin.

The question, however, is whether the reality of private biases and the possible injury they might inflict are permissible considerations for removal of an infant child from the custody of its natural mother. We have little difficulty concluding that they are not. The Constitution cannot control such prejudices but neither can it tolerate them. Private biases may be outside the reach of the law, but the law cannot, directly or indirectly, give them effect. Public officials sworn to uphold the Constitution may not avoid a constitutional duty by bowing to the hypothetical effects of private racial prejudice that they assume to be both widely and deeply held.” Palmore v. Sidoti, 466 US 429 – Supreme Court 1984 (citations omitted)

The issue is whether a court considered NOTHING BUT race when allocating custody.

When “[a] court took into consideration all relevant factors and did not allow the matter of race alone to overweigh all other considerations and did not regard the racial factor as decisive. Instead, [if] the court simply acknowledged that social pressures could develop that would be difficult or detrimental for [the child, the balanced considerations would be acceptable]. In re Custody of Russell, 399 NE 2d 212 – Ill: Appellate Court, 5th Dist. 1979

Deciding “custody based solely on race is an impermissible exercise of the court’s discretion.” In re Marriage of Gambla and Woodson, 853 NE 2d 847 – Ill: Appellate Court, 2nd Dist. 2006

In reality, race is rarely brought up as a primary issue in any Illinois domestic relations court. The issue is simply too politically charged. Courts will, instead, make findings that parallel a possibly unsaid racially based finding. Example: “Mom lives in bad neighborhood.”

The one time when race gets brought up explicitly in open court is when a Guardian Ad Litem is appointed. Guardian Ad Litems are attorneys who represent the best interests of the child.

“The guardian ad litem shall investigate the facts of the case and interview the child and the parties.” 750 ILCS 5/506(a)(2)

That investigation becomes a report that an Illinois divorce court will rely on when making custody determinations.

“The guardian ad litem shall testify or submit a written report to the court regarding his or her recommendations in accordance with the best interest of the child.” 750 ILCS 5/506(a)(2)

Guardian Ad Litems are allowed to consider ANYTHING including race.

“In discharging his or her duty, the GAL will review or consider all kinds of information regarding the child, both admissible and inadmissible at trial. Such information assists the GAL in determining the existence of problems that might cause the child psychological or physical harm. We fail to see any prejudice where the GAL listens to information that may be inadmissible at trial.” In re Marriage of Karonis, 296 Ill. App. 3d 86, 91 (Ill. App. Ct. 1998)

Because of this enormous contextual flexibility in both investigation and reporting, courts will be eager to appoint a Guardian Ad Litem who understands the context of the family dynamic. This means that Guardian Ad Litems are commonly appointed to families who share the same ethnic group as the Guardian Ad Litem.

While the idea of a court appointing an attorney because they are African-American, Jewish or speak Spanish may be unseemly to some, the investigation and report are probably clearer and more accurate because of that ethnic preference.

While a Guardian Ad Litem’s report may consider racial, cultural and religious factors, the court’s final findings cannot be exclusively based race or ethnic considerations.

The judge “is the ultimate fact finder in a child custody case, not the…witness.” In re Marriage of Saheb & Khazal, 377 Ill. App. 3d 615, 628 (2007).

Therefore, a Guardian Ad Litem’s findings about the race of the parties can be adopted by the court so long as they are balanced by other factors as enumerated in 750 ILCS 5/602.5(c) and 750 ILCS 5/602.7(b)

We live in a racial society but the domestic relations courts should endeavor for us not to live in a racist society. Race should be handled in context with the many other facets that courts consider when determining the custody of a child.

To speak candidly about the issues race poses in an Illinois divorce, contact my Chicago, Illinois family law firm to speak with an experienced Illinois divorce attorney.