The Evolution of Interracial Marriage and How It Can Affect Custody Determination

The landscape of news headlines that have been popular in recent months, including news centered on the election, has had a heavy focus on race. It is even more a topic of discussion now than it has been in the U.S. in recent years. The movie Loving, which was released earlier this month, touches on the topic of race and marriage, and the legal landscape of it all, but in the 50’s and 60’s. But what about today? What impact can race have on divorce cases or even custody nowadays, or does it even have an impact at all? These are very important questions to ask, and even more importantly, to look for answers for.

The answers to many questions about race and marriage begin with the lovely love story of Mildred and Richard Loving. Less than 60 years ago, in our neighboring state of Virginia, and in 23 other states, including Maryland, interracial marriage was illegal. So, when the interracial couple of Mildred and Richard Loving (so conveniently named) went to Washington, D.C. to get married and returned to Virginia in 1958, they were arrested on felony charges. This arrest set in motion the events of the Supreme court case of Loving v. Virginia, and changed the fabric of marriage in the United States forever. The result of the case was that the court found that it was in violation of the Fourteenth Amendment to have miscegenation laws, or laws that restricted marriage rights based on race. The original laws stated that is was illegal for anyone considered to be “white” to marry someone considered to be “colored” under the “one drop rule.”

Nowadays, especially considering the diversity of the U.S., interracial marriage is defined as the marriage of any two people of different races, even if one is not considered to be “white.” In modern times, interracial marriage is much more common, thanks to the Loving v. Virginia case.

Shortly after the verdict was confirmed…

• Interracial marriages were about 0.4% of all marriages
• By the 1980’s, interracial marriages were 3.2% of all marriages
• Now the current rate is at about 8.4% in the U.S.

Within this 8.4%…

• The most common interracial marriages are between Whites and Hispanics at 37%
• Followed by Whites and Asians at 13.7%
• Whites and Blacks are last at 7.9%

…and with time these numbers will surely continue to climb.

Usually for interracial couples, their rate of divorce is higher than White couples, except in the case of an interracial couple with a White male and Black female, in which the chance of a divorce is 44% less likely. At the end of the day these are just the stats, and anyone can have a successful marriage regardless of differences in race or any other factors. Custody cases for interracial couples with interracial children can sometimes be approached differently by the courts than non-interracial cases.

When an interracial couple has a child, and then ends up getting a divorce, the question of which parent would be a better fit to raise the child is always an important one. In Maryland, the judge in a case bases this decision on several factors and what is in the best interest of the child.

These factors are thoroughly evaluated, but race can and has come into play, and influenced the outcome of the court’s decision. Most people would think that race playing a role in a court’s decision is unconstitutional, but some have argued that it has an impact on the well-being of the child, with things like identity or prejudice, especially when you consider what it means to be multi-racial in the U.S. There is precedent within the U.S. court system that supports these arguments, but most courts will not allow it to be the sole deciding factor in a case. A popular example is the court case of Raysor v. Gabbey in New York, where a Black father was looking to win custody of his mixed-race daughter from her Caucasian grandparents. The court heavily considered race as a factor within the case, because the father argued that dealing with racial difference was essential for the well-being of the child. Even though he ended up not getting custody, this argument had a large impact on the case.

Race has always been a big part of U.S. history and continues to influence the path of the country, affecting everything from politics to marriage. The revolution of interracial marriage in the U.S. sprouted from the feeble tale of the Loving couple and their historic court cases in the 60’s. Now, more than 50 years later, their story continues to change the fabric of marriage and family law in the U.S.