DuPage Custody Case: Ethnic Identity a Factor?
Despite the recommmendations of two custody evaluators that a DuPage County father have the primary residential custody of a two year old daughter, the court awarded custody to the mother, based in part, on the fact that the mother and child shared an African-American heritage.
The question arises in all custody cases as to what is in the developmental best interest of a child. Which parent, the court must find, is best suited to provide a parenting environment to meet the developmental best interests of the child? Most courts will, on petition of the parties, appoint a specially trained psychologist to evaluate the factors that the court must consider in an award of custody. Section 602(a) of the Illinois Marriage and Dissolution of Marriage Act (Act) (750 ILCS 5/602(a) (West 2004)) provides that the court shall consider all relevant factors, including:
"(1) the wishes of the child's parent or parents as to his custody; (2) the wishes of the child as to his custodian; (3) the interaction and interrelationship of the child with his parent or parents, his siblings and any other person who may significantly affect the child's best interest; (4) the child's adjustment to his home, school and community; (5) the mental and physical health of all individuals involved; (6) the physical violence or threat of physical violence by the child's potential custodian, whether directed against the child or directed against another person; (7) the occurrence of ongoing abuse ***; and (8) the willingness and ability of each parent to facilitate and encourage a close and continuing relationship between the other parent and the child"
In the case of Gambla v. Woodson, the court found that the mother's African American heritage was a factor to consider in awarding custody to her of the parties' biracial child. The Illinois Appellate Court (2nd Dist.), when faced with the appeal by the father of the custody award to the mother, held that the mother's racial heritage was a factor that the court could rightfully consider, despite the recommendations of the court appointed psychologists that the father have custody.
The Gambla case raises interesting questions. What role do the clinical opinions and recommendations of the custody evaluators play in the judge's decisions on custody? Should the trial judge in this case have set aside the court's own experts' opinions, and found that the mother's racial heritage to be a deciding factor?
What makes the Gambla case interesting is the way the trial and appelate court viewed the role of the two clinicians involved in the case. Roger Hatcher, Ph.D. and Daniel Hynan, Ph.D., the court's 604.5 and 604(b) evaluators, respectively, both felt strongly that the father should have custody of the child. Both custody evaluators in this case are exceptionally well trained and qualified, and enjoy universal respect in DuPage County.
The majority of the the appellate court held that the trial judge in a custody case can consider, but is not bound by, the recommendations of the evaluators. However, Justice McLaren makes an interesting point in his dissent:
A court generally seeks an expert's opinion to assist it in making a custody determination, and a court cannot disregard medical testimony that is not countervailed by other competent testimony. In re Violetta B., 210 Ill. App. 3d 521, 535 (1991). The trial court cannot second-guess an expert's opinion, without basis. To do so would be contrary to the evidence before the court. The best interest of the child is the paramount consideration, and qualified and competent medical testimony concerning the child for whom the custody decision is being made must not be disregarded when determining what is in that child's best interest. In re C.B., 248 Ill. App. 3d 168, 179 (1993). Both Dr. Hynan and Dr. Hatcher, who were certainly experts qualified to opine as to the best interest of Kira, did render opinions regarding the health, and possible medical, concerns for Kira if Kimberly were to be awarded custody. Both experts recommended that Christopher be awarded custody of Kira, without condition or similar concerns for Kira if Christopher had custody.
What do you think? What level of authority should the courts place on the recommendations of its own well qualified clinical experts? In a case involving expert clinical issues (ie the developmental best interest of a child) can a trial court reject the custody recommendations of the clinicians without an opposing clinical review? Should racial heritage be a substantial factor in a custody case?