PALMORE v. SIDOTI

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ORAL ARGUMENT OF ROBERT J. SHAPIRO, ESQ., ON BEHALF OF THE PETITIONER

Chief Justice Warren E. Burger: Thank you gentlemen the case is submitted, we will hear arguements next in the case of Palmore against Sidoti.

Mr. Shapiro, I think you may proceed when you are ready.

Robert J. Shapiro: Thank you, Mr. Chief Justice.

May it please the Court, this case is here on a writ of certiorari to the Second District Court of Appeal of the State of Florida.

The question presented is whether the equal protection and due process clauses of the Fourteenth Amendment prohibits a court from considering or from relying upon a subsequent interracial marriage of the custodial parent as a ground for ordering a change of custody.

Now, if I may, the facts are straightforward in this case, and I would like to go through them very quickly and get right to the argument.

Unidentified Justice: Is it your contention that that's the only ground on which the judgment is based?

Robert J. Shapiro: Yes, sir.

In this case, absolutely.

And I'd like to explain how that occurred.

We had a final judgment of dissolution of marriage in this case between the petitioner and the respondent, both of whom are white.

The custody of their three-year-old daughter was awarded to the petitioner, the mother here.

Subsequently, the husband... the father, I'm sorry... filed a petition for modification.

He alleged in his petition that the mother was living with a black man who she later married, that the child had two bouts of head lice, and that the child had been seen wearing a mildewed dress.

Now, at the hearing on this matter, the final hearing, the parties and their new spouses testified, and the report of the Circuit Court counsel was accepted.

The Order which the Circuit Court entered on March 1, 1982 changed custody and awarded it to the father.

There were no findings made regarding the father's secondary allegations... and it was called "secondary allegations" by the trial judge... of the mildewed dress or the head lice.

The court noted that she had lived with man before marrying him.

But the court also held that each of the parents, the father and the mother here, were devoted parents and that each had remarried respectable spouses.

And then in the important phrase in this case, the court stated:

"This Court feels that, despite the strides that have been made in bettering relations between the races in this country, it is inevitable that Melanie will, if allowed to remain in her present situation and attain school age and, thus, more vulnerable to peer pressures, suffer from the social stigmatization that is sure to come. "

Now, it's important to note that this is not a neglect case.

There was no finding of neglect, contrary to respondent's arguments in his brief.

There was no finding about lack of health care, lack of hygiene, lack of clothing or any type of neglect, and certainly no finding of any inability to cope on the part of the mother.

It's important to remember that in Florida, once a custody decree has been entered, the noncustodial parent has an extraordinary burden in order to change that.

That person must, by competent substantial evidence, show that there has been a substantial change in circumstances, and, No. 2, that there have been adverse effects on the child.

And this is because the focus is the best interest of the children, the best interest of the child.

And if it cannot be shown that there was a substantial change in circumstances and an adverse effect on the child, then it has not been shown that the original determination as to what was in the best interest of the child should be disturbed.

And the reason for this is that the custody determinations are not res judicata, but they must be given some measure of finality.

Otherwise, people would be changing custody on a regular basis.

Justice Sandra Day O'connor: How old is the child today?

Robert J. Shapiro: The child is six years old today.

Justice Sandra Day O'connor: And is presently living with the natural father?

Robert J. Shapiro: Yes, Ma'am.

Living with the natural father in Texas, where he moved immediately after the custody determination was made in March of '82.

Now, our position is, and I believe that it's clear from the plain meaning of the words in the Order, that the Order was tainted with race, racial consideration, which renders it presumptively invalid.

No other case so clearly rests a custody determination on racial considerations, at least that I can find in my search of cases.

The child court took the remarriage of the mother into consideration solely because her new husband was black.

He did not consider the impact of the father's remarriage because his new wife was white.

Bear in mind that this was foreshadowed by the fact that the court ordered a social investigation only of the mother, despite the fact that a motion for social investigation requested a social investigation of both parties.

Having taken consideration of the remarriage, he, then, assumed that certain consequences would occur as a result of the interracial marriage.

And by this, I mean that the child would suffer social stigmatization as a result of the interracial marriage.

There is not one scintilla of evidence, nor is there a finding of fact that there is any adverse effect as a result of this interracial marriage.

The Equal Protection Clause of the Fourteenth Amendment embodies the belief that all persons are created equal.

Racial hatred and prejudice have no place in our system of law, but when this trial court held that Melanie, the child, would suffer social stigmatization as a result of the interracial marriage, he gave the racial bias of few the force of law.

Now, it's clear from this Court's cases, such as Cooper v. Aaron, Shelley v. Kraemer, Watson v. City of Memphis, that a court cannot bow to pressure, public pressure to protect potential victims of race discrimination from prejudice; that the desire to protect a person from racial prejudice does not justify departing from the fundamental command of the Constitution that there be equal justice under law.

And the concept of equal justice under law is so central to this country that it is engraved, carved into the stone of this building.

Justice Sandra Day O'connor: Mr. Shapiro, do you think that a state could, in placing a child for adoption, consider the biological characteristics of the adoptive parents in an effort to place the child in a family with similar characteristics of the baby or child being placed?

Robert J. Shapiro: Of course, as you know, Your Honor, the question of adoption is much different than we have here because--

Justice Sandra Day O'connor: I know that.

Robert J. Shapiro: --Yes, Ma'am.

Justice Sandra Day O'connor: What is your position?

Robert J. Shapiro: All right.

My position is that with... and I think the courts have said this... that the concept of adoption is different, because the state is conferring a right upon a person who is not a biological parent and, therefore, as long as there is no racial slur involved in taking that into consideration, that it may... and as long as this is not automatic, as it was here, consideration of race... that it may take race into consideration.

And this was in the Drummond case, which was the Fifth Circuit case, which made reference to this Court's case in Smith v. Foster Family case, O-f-f-e-r.

And there's a very, very big distinction between the biological relationship and the state-conferred relationship.

Unidentified Justice: Of course, if your client regains custody, Mr. Palmore may seek to adopt, might he not?

Then you would have the problems that Justice O'Connor has suggested.

Robert J. Shapiro: Well, but the problem there is, there would be, then, a conflict between the two biological parents.

And he is free to petition for modification again in the state courts at the conclusion of this proceeding, but we ask that the slate be wiped clean.

That's what we're asking for.

Unidentified Justice: Does he have other children, incidentally?

Robert J. Shapiro: Who are we talking about:

Unidentified Justice: Mr. Palmore.

Robert J. Shapiro: --Yes, he does.

Unidentified Justice: By a prior marriage?

Robert J. Shapiro: I don't think it was a marriage.

I'm not absolutely certain.

I know that he does have another biological child of his.

But I can say that whatever is in this trial court's Order determined this custody determination.

And he found the man to be respectable, as was the spouse, the new spouse of the father.

There's no question, he says in the first paragraph, about the respectability of these new spouses.

Now, the other major point in this case, aside from importing racial prejudice of society into the Order of a court, is the aspect that the mother was being punished for having exercised her right to marry a person, without regard to race.

In Loving v. Virginia, this Court stated that a statute which provided imprisonment for interracial marriage violated the Equal Protection Clause.

In that case, the interracial remarriage itself triggered the penalty of imprisonment.

In this case, the interracial marriage itself triggered the forfeiture of the child, with no facts to justify the penalty.

The respondent misconstrues the Loving case by suggesting that the mother here is... cannot invoke the Equal Protection Clause because she is not black.

The fact of the matter is, Loving makes it very clear that either party of an interracial marriage can invoke the Fourteenth Amendment if the marriage is being infringed upon.

Now, we're not asking this Court to substitute its discretion for the trial court regarding any fitness determination or any determination of the like.

The trial court has already made these findings regarding the fitness of the parties.

There is no doubt about this.

We seek a ruling that the Circuit Court's Order applied an unconstitutional rule of law by relying on the fact of the interracial marriage and by allowing the existence of racial prejudice in society to dictate the nature of this custody proceeding and the Order it produced.

We're not asking for a ruling that the mother should be the custodial parent for all time.

This we cannot have, because of what I indicated earlier about the fact that custody determinations are not res judicata.

But again, we ask that the slate be wiped clean, and again the father is entitled to file another petition for modification if he so desires, but one which does not contain racial grounds, and contains other legitimate grounds for change of custody, if he so desires.

Therefore, we seek an Order revising and vacating this case, with instructions to the Second District Court of Appeal to set aside the trial court's Order on modification, thus restoring the parties to their original status under the original dissolution of marriage final judgment.

I have some more time, and I'd like to reserve it for rebuttal, if I may, unless you have some questions of me right now.

Chief Justice Warren E. Burger: Mr. Hawtrey.

ORAL ARGUMENT OF JOHN E. HAWTREY ON BEHALF OF THE RESPONDENT

John E. Hawtrey: Mr. Chief Justice, and may it please the Court, I think before we can determine that there is an impermissible classification in this particular case, there's at least six questions that have to be answered in favor of the petitioner's position... the first one being, and probably the most important... is what relationship was before the trial court?

The second one is, to what extent did the state have any interest in that relationship?

The third, did the trial court classify the relationship?

The fourth, did the classification, if any, result in some form of action by the state without reasonable relation to the classification?

Fifth, and alternatively to the last question, was the classification, if any, suspect as the rules dealing with suspect classes tell us?

And, if suspect, was there a compelling state interest to classify?

As I've indicated, I think that the most important question to determine whether this is an impermissible classification is the first one: What relationship was before the trial court?

We would suggest that the relationship before the trial court was the parent-child relationship; that the parent-new spouse relationship was collateral, was secondary.

The cases that deal with the relationships in custody cases, in adoption cases, in the foster care cases, all seem to indicate that the parent-new spouse relationship is secondary.

I think the best one is the situation that existed in the Smith v. the Organization--

Justice John Paul Stevens: May I just ask, Mr. Hawtrey, if the parent-new spouse relationship is secondary, as you argue, it nevertheless was what controlled the decision in this case, wasn't it?

John E. Hawtrey: --I believe that the position of the petitioner is that it controlled in this case.

Justice John Paul Stevens: Well, isn't that what the trial judge said?

John E. Hawtrey: I differ from that opinion.

I think that the trial judge was dealing with more facts than merely the fact of race.

But he was dealing, was he not, with the new spouse relationship as the reason for changing custody?

The mother's new relationship with the man who moved into the home and then later married her.

It would be the respondent's position, Your Honor, that the relationship was how the mother treated that new relationship as regards to the child, and not the new relationship per se.

I think it's clear from the reading of that paragraph that counsel refers to, that there are three parts to that paragraph.

The first part takes the new relationship out of consideration per se... the relationship per se out of consideration.

The middle part deals with how the mother reacts to that relationship, and the third one is how the mother reacts to the child, or how the court expects the mother to react, the interplay between the mother and child as it relates to the new marriage.

I think that's significant, in that the court is progressing, if you would, through the requirements of classification.

Justice John Paul Stevens: I must say I'm puzzled.

I thought your brief had, in essence, assumed that that was what caused the change of custody, the new marriage.

But you now seem to be saying that, really, there are other factors involved.

And I had read the sentence that your opponent read,

"The Court feels about the strides in race relations. "

and the like, as indicating that the judge was concerned about the fact that the child would be living in a home with a mixed marriage, an interracial marriage.

You don't think that influenced his decision?

John E. Hawtrey: I think it influenced his decision--

Justice John Paul Stevens: Well, then, isn't it... don't we have the question whether it is a proper factor for him to have considered?

Isn't that before us?

John E. Hawtrey: --In part.

It's a very secondary part, however.

Justice John Paul Stevens: What was the primary part?

John E. Hawtrey: The court... the trial court's primary, in our opinion, the primary feeling was that the mother couldn't cope with the new relationship.

Justice John Paul Stevens: You think he said that in his opinion?

John E. Hawtrey: I think that that paragraph, when read together as a single paragraph, says that.

Yes, Your Honor.

Unidentified Justice: I see.

Would you mind telling me where... we're looking at paragraph 5 of page 26.

Is that what you have reference to?

John E. Hawtrey: The father's evident resentment?

Unidentified Justice: Yes.

John E. Hawtrey: Yes, Your Honor.

Unidentified Justice: Well, where is it... the paragraph there is the interpretation that you just suggested?

Where is that?

John E. Hawtrey: I think that the--

Unidentified Justice: That he was concerned that the mother could not cope with the new relationship.

Where does that appear?

John E. Hawtrey: --Your Honor, I'm reading that into that paragraph because--

Unidentified Justice: Well, that's what I'm asking.

Where are you reading it in?

John E. Hawtrey: --Because the court first struck the respondent... my client's resentment to the mother's choice.

That's the first sentence.

The second sentence--

Unidentified Justice: The first simply says that his resentment of the mother's choice is not sufficient to rest custody.

John E. Hawtrey: --Precisely, Your Honor.

The court was saying that we're not going to consider this on a racial ground, purely racial ground.

Unidentified Justice: And then he goes on to consider it on purely racial grounds.

John E. Hawtrey: And the second--

Unidentified Justice: Doesn't he?

Doesn't he?

John E. Hawtrey: --Excuse me?

Unidentified Justice: Then the judge goes on to consider it on purely racial grounds.

John E. Hawtrey: I don't think so.

The second and third sentences both deal with the mother's conduct and the mother's ability to cope.

The third sentence, or the fourth sentence is the one that deals with the future.

But if we relate it to the first... one of the first three sentences... we have to, in my way of thinking, relate it to the two immediately preceding sentences, rather than relating it back to the first sentence.

It doesn't logically go with the first sentence.

Unidentified Justice: I understand your argument.

Justice William H. Rehnquist: But Mr. Hawtrey, in view of the opening... if we're going to parse this thing, in view of the opening clause of the fourth sentence, I would think your argument is rather difficult to sustain.

If this is the... is it the fourth sentence that begins the fourth line from the bottom of page 26?

"This Court feels that, despite the strides that have been made in bettering relations between the races in this country, it is inevitable that Melanie will, if allowed to remain in her present situation and attain school age, and thus more vulnerable to peer pressure, suffer from the social stigmatization that is sure to come. "

Now, if the circuit judge was talking about the things mentioned in sentences one, two, and three, rather than the race business in sentence one, why would he begin the fourth sentence with about

"Despite the strides that have been made in bettering relations between the races? "

John E. Hawtrey: Because I think he's referring back to the mother's incapability of handling that.

Unidentified Justice: Where, specifically, does he speak to the mother's incapability?

John E. Hawtrey: I don't think he... he definitely doesn't say it say it specifically.

But when he talks about... first talking about the mother bringing the man into the home, and the business about carrying on sexual relationships with him, the court goes on to say,

"Such action tended to place gratification of her own desires ahead of her concern with her children's future welfare. "

And then the court immediately talks about the child's future welfare.

And it seems evident to me... I wasn't at the trial court level, but it seems to me, in reading the decision, that when the court talks about the mother's intending to place her own gratification before her child's future welfare, and then talks about the future welfare, the court is saying, in essence, that there is an ability of the mother to cope, and therefore the child will suffer.

I think additionally, that the relationship, the parent-spouse relation... new spouse relationship... hasn't, to my way of thinking, a recognized liberty interest or a right in family privacy, both of which are dealt with in the cases dealing with classification of family interests.

I don't think there's been a showing that there is either a recognized liberty interest or a recognized right to family privacy.

Unidentified Justice: Well, but you don't need a recognized liberty interest if your claim is under the Equal Protection Clause, rather than the Due Process Clause, do you?

John E. Hawtrey: That's correct.

But the way that I have read the briefs that have been filed for the mother, there lacks a distinction between due process and equal protection; that the tendency is, is to create, I think it's been classified as a per se impermissible classification, which I would classify in the nature of a suspect class, rather than merely investigating whether or not there was a classification.

At this point in time, when I'm dealing only with... when I'm dealing with the relationship before the court, I'm trying to isolate that question.

I think that it's clear that if we look at a scales of justice analogy in this particular case, and we put the parent-child relationship on one side, we can put either the best interests doctrine or the material and substantial change doctrine, as it applies in the Florida law, on the other scale.

But if you put the parent-new spouse relationship in one scale, I don't think that there has been a showing at least of what we're weighing that against, what the trial court was weighing that against on the other side.

Unidentified Justice: If you suggest that this judgment really didn't substantially rest on a racial consideration, you must inevitably claim that there were nonracial grounds for the action.

And if that's the case, you should be able to win another custody case where it's made perfectly clear that there's no racial factor be involved.

John E. Hawtrey: That's correct, Your Honor.

Unidentified Justice: Is that right?

John E. Hawtrey: That's correct.

Unidentified Justice: I take it your colleague on the other side suggests that there could be another custody case here.

And you seem to think there are ample nonracial grounds for leaving custody where it is now.

John E. Hawtrey: I believe that's correct.

There's no question that ongoing litigation in this area could take place.

Justice Thurgood Marshall: Well, what nonracial matter were you talking about when you said she couldn't cope?

John E. Hawtrey: Justice Marshall, I understand that there was... that the thing that she was coping with was a racial matter.

But as regards to the parent-child relationship, it was her inability to relate to her child, not her inability to relate to the marriage.

I think that her ability or inability to relate to the marriage falls in the category of the Loving case.

Justice Thurgood Marshall: I thought you admitted that she couldn't cope with the racial problem.

Now, do you or do you not take that position?

John E. Hawtrey: I don't think that she can relate that to her child.

I think that's what the court was saying.

Since I wasn't at the--

Unidentified Justice: If we don't agree with you as to the reading of the judge's remarks, and if there is really a racial slur, as your colleague says, in the case... let's just assume that we disagree with you and say, counsel, we just disagree with that reading.

Now... and just assume that we're right in reading the judge's remarks that way.

What would be your suggestion to us as to what we ought to do?

John E. Hawtrey: --I think the next step is to look to see if there is either a compelling or rational reason for the court's action, whether there has been a showing that there has been an adverse... I think it's been characterized as coercion not to marry or a penalty for marriage... whether or not there is anything in the trial court's decision or in the record of the state courts of Florida to show that.

Unidentified Justice: No.

If we read what the judge said as saying the mother loses custody here because she married a black man... suppose we just read it that way.

What should we do about it?

John E. Hawtrey: If that's the sole question before this Court, that the sole reason, that there was no others, then the trial court has classified the mother.

Unidentified Justice: Has made a racial... has used a racial reason, anyway, for determining the case.

John E. Hawtrey: Determining... yeah.

She's been put into a classification.

The next question is whether there's any showing in the case or not, has there been a adverse or a state action that does not either have a rational relationship to the classification, or a compelling state interest.

Unidentified Justice: Would you apply the arguments you're advancing to every interracial marriage, without respect to what races were involved?

Suppose, to take an extreme, you had American citizens, one of China Mainland, and one of... or Taiwan... and an American, or Korean, or Vietnam, or Thailand, whatever.

Would you advance these same arguments?

John E. Hawtrey: I think that the question is, if we're going to classify, then how are we going to use that classification?

In an adoption suit or a state custody suit, where it is the state taking custody, or as in the Smith case where we're dealing with foster families, I think that there are... there has been shown to be reasonable state relationships, that the best interest of the child is a compelling state interest that override the classification.

Unidentified Justice: Well, isn't your argument, when it's boiled down, really almost this: that assuming, accepting the idea that this is a racially-based decision, it is... it should be approved because of the interests of the child in the present attitudes that you suggest in your brief exist about these problems?

John E. Hawtrey: That the state may justifiably classify that relationship, yes.

I believe that's true.

And I believe it would apply to any mixed race marriage.

Unidentified Justice: Don't you think the court in this case thought so, too?

John E. Hawtrey: I'm not sure of your question.

If the question is do I think that the court changed the relationship merely because of the interracial marriage, and that the best interests of the child would not be served but for that decision, I don't agree with that.

I think that the court can classify the relationship and still consider the child.

After all, the court was... had the opportunity to view the mother, to listen to arguments, to listen to all the evidence, and to read that in as a adverse relationship, that the modification was an adverse relationship, in other words, it was either coercion or a penalty, it isn't in the record and it certainly isn't in the judgment of the court.

Justice Sandra Day O'connor: Mr. Hawtrey, I don't think I understand yet.

If all that we had was a finding by the court of the interracial marriage, and that alone was the basis for changing custody, do you support that and think that any of our cases would permit that?

John E. Hawtrey: I hope I'm not supporting that.

What I am suggesting is, is that unless there is--

Justice Sandra Day O'connor: It sounded like you were.

And do you think any of our cases permit that?

John E. Hawtrey: --To answer your second question, no, I don't believe that any of the cases support that.

But what I think that there has to be is a showing that that is a adverse effect on the child or a penalty or coercion to the mother.

This is... we don't have a case here we have a state action that's going to throw the mother in jail or fine her.

We have to read into--

Unidentified Justice: No.

All you're going to do is take her child away.

John E. Hawtrey: --We have to read into it that that is a penalty or coercion--

Justice Sandra Day O'connor: And that's not as important, is it?

Taking the child away from the mother?

Are you suggesting that's not an important interest?

John E. Hawtrey: --I think it's secondary to the interest between the parent and the child.

Justice Thurgood Marshall: Mr. Hawtrey, let's try it another way.

Using a scale of 1 to 10, what number would you put on race in this case?

John E. Hawtrey: Ten being the highest and 1 being the lowest?

Unidentified Justice: Yes, sir.

John E. Hawtrey: From the standpoint of classification between the mother and the child, I'd say 5.

Unidentified Justice: That's a substantial point, isn't it?

John E. Hawtrey: I would say it was equal towards the mother... between the child and the mother.

The extent of the relationship, when we look at it between the parent and the child, and not the parent and the new spouse, I think, is the interest that the state has.

I think that the parent and the new spouse relationship was one of either quality or quantity that relates to the parent-child relationship.

We're only dealing with one-half of it.

The classification, if any, that we have in the case is, again, a classification of the spouse... new spouse-parent relationship... and it would fall into the same category, I believe, in this type of custody as a custody by state, as in the Smith v. Organization of Foster Families.

I think that it's the same type of consideration as we have in the Drummond case, which is an adoption case.

We're not dealing with the marriage per se.

It's not a relationship like we have in Loving.

The court is not... the trial court is not making the same type of presumptions.

I don't believe that the court is making the same type of presumptions as in the Kramer v. Kramer case, which is probably very close in factual, in the factual basis.

Unidentified Justice: Kramer against Kramer was a movie, wasn't it?

[Laughter]

John E. Hawtrey: Your Honor, it's the case out of Iowa that's reported in 297 N.W. 2d 359... is the one I'm referring to.

[Laughter]

In that case, I believe there was an effort to exclude race entirely from the case, but the judge then inserted it in a similar fashion as in this case.

But the court, in the Kramer case, was making presumptions.

I think that the court, in the Kramer case, was making the same kind of presumptions that we had in the Stanley v. Illinois case, where we were going to decide... where Illinois decided that an unwed father was presumptively incapable of having or fathering or being the father of the child, and that he would have to seek his child in some other fashion.

I think, in addition to looking at what may have been a classification, we have to look at what is the action taken by the state court.

The action taken by the state court was a modification.

As counsel for the petitioner has pointed out, we can go back in and review this again and again, I guess from the time the child is age six till the child is age 18, but unless there is a showing, and I don't believe at this point in time that there's been a showing of either coercion or penalty, that the state action taken necessarily is anything other than what is permissible under the state law.

The Arlington Heights v. Metropolitan Housing case indicates to us that if we're... if we're going to have an allegation of racial discrimination, that there has to be a showing of intent and purpose in the racial discrimination or classification that I don't believe has been shown in this particular case.

I think one of the elements necessary to show an impermissible classification lacks in that instance.

The other alternative view could be that the classification is suspect, but all of the custody cases seem to take that type of classification or racial classification out of the suspect nature and place them in a framework of rational relationship between the classification authorities.

Finally, again looking at the Kramer case and quoting from it:

"It is best said, just as no assumptions are automatically warranted based on gender of parent or child, we believe no assumptions are automatically warranted by racial identify. "

Unidentified Justice: Have you cited the Kramer case in your brief?

John E. Hawtrey: I don't believe I have, Your Honor.

Unidentified Justice: What's its citation again?

John E. Hawtrey: 297 N.W. 2nd 359.

Unidentified Justice: Iowa Supreme Court?

John E. Hawtrey: It's Iowan Supreme Court, 1980.

Unidentified Justice: Not the Court of Appeals?

John E. Hawtrey: Excuse me, Your Honor?

Unidentified Justice: Not the Court of Appeals, the Intermediate Court in Iowa.

John E. Hawtrey: I'm not sure, Your Honor.

Unidentified Justice: You don't know.

Chief Justice Warren E. Burger: Do you have anything further, Mr. Shapiro?

Robert J. Shapiro: Mr. Chief Justice, unless one of the members of the Court has another question from me, I don't have any further comments.

Chief Justice Warren E. Burger: Thank you, gentlemen.

The case is submitted.

We'll hear arguments next in the Limbach against Hooven & Allison Company.