A judge recently ordered a New York woman to remove a Confederate flag-adorned rock from her home or risk losing custody of her biracial child. In a 5-0 decision, justices in New York State’s Supreme Court’s Third Department allowed a couple to keep joint custody of their biracial child but ordered the mother to remove the Confederate flag-adorned rock by June 1.
“As such, while recognizing that the First Amendment protects the mother’s right to display the flag, if it is not removed by June 1, 2021, its continued presence shall constitute a change in circumstances and Family Court shall factor this into any future best interests analysis,” Justice Stanley Pritzker wrote in the ruling on May 6.
The parents, who were only identified as Christie and Isiah in the ruling, were ordered to have joint custody of the child in 2017, but when an attorney for the child recommended that the mother’s home be the child’s primary residence, the father appealed. While the ruling did not name the child, it did state that she was born in 2014 and currently attends school in Ithaca, New York’s Dryden Central School District.
The ruling states that while it was not addressed during by Family Court or the child’s attorney, the mother admitted to having a rock with the Confederate flag on it but “testified that she has never used any racial slurs in front of the child or at all.”
“Given that the child is of mixed race, it would seem apparent that the presence of the flag is not in the child’s best interests, as the mother must encourage and teach the child to embrace her mixed-race identity, rather than thrust her into a world that only makes sense through the tortured lens of cognitive dissonance,” the ruling stated. “Further, and viewed pragmatically, the presence of the confederate flag is a symbol inflaming the already strained relationship between the parties.”
The ruling also included testimony from the father, who stated that he and the mother “struggle to communicate” and that the child has behavioral issues such as “kicking, spitting, hitting, and swearing a lot.”
The child’s attorney, Jason Leifer, suggested that the judges “pulled something out of a hat” by focusing on the rock, because it was never the subject of the parents’ disagreements over the child. In an statement, Leifer wrote, “The legal standard in a child custody case is ‘best interests of the child.’ A trial court weighs all of the evidence and legal arguments, then determines legal custody, placement, and visitation based upon what it feels is in the child’s best interests. The problem with this appellate decision is that it fails to set a standard for determining actual harm in cases where a parent holds an opinion that the other parent (or the Court) does not approve.”
“This part of the appellate decision was itself made upon an assumption that the mother (despite having a biracial child) held racist views, which was not supported by the evidence in the record,” Leifer said. “By making a ruling based upon this assumption, this Appellate Court simply opened the door for litigants in the Third Department to argue that a parents’ political views and opinions are harmful to a child without having to demonstrate actual harm.”
In his email, Leifer also stated, “While this decision does not apply statewide, the Court of Appeals may need to step in to address this issue so that there won’t be a chilling effect on free speech.”