Inequity in Private Child Custody Litigation

This article explores the history and implications of a two-tiered system for adjudicating matrimonial-as opposed to nonmatrimonial- custody matters. As the author uncovered by calling every clerk\u27s office in every major city in the country, matrimonial matters are under a different jurisdiction or part of court in nine states.\u27 This differential treatment has implications for the outcome of private custody cases. It also reflects a bias in the administration of justice, based on race and socioeconomic class. Perhaps most importantly, it causes the government and other outside parties (such as court appointed guardians ad litem) to be more involved in the private lives of poor families and families of color than they are with middle and upper-middle class families. Part I of the article discusses the demographics of marriage rates, showing that the majority of unmarried parents with custody disputes are poor and/or are people of color. This is in contrast to married parents with custody disputes, who are more likely to be white and middle or upper middle class. Part II starts by exploring the history behind the two-tiered system for adjudicating matrimonial versus non-matrimonial custody matters, and then describes the current lay of the land. Part II also paints a picture of the culture of Family Courts throughout the country. Part III is an overview of the substantive nature of private child custody cases, including the best interest standard and the use of guardians ad litem. Part IV takes two states, New York and Virginia, to show how jurisdictional difference manifests itself in practice in private child custody cases. Part V concludes that our country\u27s family law system is reflective of bias against poor families and families of color. The jurisdictional differences between matrimonial and non-matrimonial custody cases are not based on the best interests of the child and should be eliminated. All custody matters in every state should be heard by the same level of state court