Black Identity and Child Placement: The Best Interests of Black and Biracial Children
UVA Law Faculty Affiliations
The purpose of this Note is to question whether racial matching by courts and child-placement agencies serves the best interests of Black children. The principle that guides this Note's analysis is that racial matching is justified only if such a policy better serves that interests of Black children than a policy in which race is not a factor in a child-placement determination. This Note also questions whether racial matching serves the interests of biracial children and those of Black people as a cultural group.
This Note does not focus on the equal protection concerns raised by the use of race in child placement. This is not to suggest that the Constitution is not implicated or important. Rather, by concentrating on the interests of Black children, this Note recognizes that, unless and until Congress or the Supreme Court forbids the consideration of race in child placement, many courts and agencies will continue to view the issue only with reference to the best-interests standard.
Part I of this Note examines caselaw regarding the permissible use of race in child custody and adoption proceedings and finds that many courts permit the consideration of race in placing a Black child. Part I further finds that courts and agencies view a biracial child as Black and, consequently, favor placing a biracial child with her Black parent after a custody dispute and with Black parents in the adoption context. Part II considers various ways in which the use of race in the placement process harms Black children.
Part II concludes that, even assuming that transracial placement entails risks, the harms of racial matching – both in the adoption and custody context – counsel against race-conscious placement. Part III evaluates the assumptions underlying the NABSW's position against transracial placement. It first considers the interests of Black children generally and concludes that not only is there insufficient evidence that transracial placement harms Black children, but transracial placement may also carry its own benefits over inracial placement. Part III then focuses on biracial children and finds that additional reasons support the abandonment of Black-preferred placement for these children. Finally, Part III considers the interests of Black people as a group. Contrary to the position of NABSW, this Part argues that transracial placement does not threaten Black culture and may in fact contribute to Black culture's ability to survive and adapt.
This Note concludes that, in light of the harm caused by racial matching and the benefits offered by transracial placement, the use of race in the child-placement process is not justified. Courts and agencies should instead limit child-placement determinations to nonracial criteria. Alternatively, if courts or agencies insist on considering race, the perceived risks involved in transracial placement, the costs of racial matching, and the benefits of transracial placement should inform their decisions.