LINDA SIDOTI PALMORE, PETITIONER V. ANTHONY J. SIDOTI

   No. 82-1734

   In the Supreme Court of the United States

   October Term, 1983

   On Writ of Certiorari to the District Court of Appeal of Florida,
Second District

   Brief for the United States as Amicus Curiae supporting Petitioner

            TABLE OF CONTENTS
   Interest of the United States
   Statement
   Summary of argument
   Argument:
      The Florida court violated petitioner's right to
      equal protection of the laws by removing her child
      from her custody on account of her interracial
      marriage
      A. Consideration of a custodial parent's subsequent
         interracial marriage as a ground for
         modifying a custody order constitutes a
         presumptively invalid racial classification that
         can be justified only if precisely tailored to serve
         a compelling state interest
      B. The state court's racial classification is not
         precisely tailored to serve a compelling state
         interest
      C. No independent and adequate state ground supports
         the judgment below
   Conclusion

                          QUESTION PRESENTED

   Whether the Equal Protection Clause of the Fourteenth Amendment
prohibits a state court from considering or relying upon the
subsequent interracial marriage of a custodial parent as a ground for
ordering a change in custody.

                     INTEREST OF THE UNITED STATES

   State-imposed racial classifications, such as that involved in this
case, strike at the very heart of the Fourteenth Amendment's guarantee
of equality before the law.  As a general matter, the federal
government has no interest in child custody proceedings.  But the
federal government does have a special interest in ensuring that the
states exercise their regulatory powers without infringing upon
fundamental rights guaranteed to every individual by the Constitution.
 Thus, the United States has participated as amicus curiae in cases
such as Brown V. Board of Education, 347 U.S. 483 (1954), and Shelley
V. Kraemer, 334 U.S. 1 (1948).  Moreover, Section 5 of the Fourteenth
Amendment empowers Congress to enact appropriate legislation to
enforce the Fourteenth Amendment against the states.  Pursuant to
Section 902 of Title IX of the Civil Rights Act of 1964, 42 U.S.C.
2000h-2, the United States may intervene in any federal suit "seeking
relief from the denial of equal protection of the laws under the
fourteenth amendment to the Constitution on account of race (or)
color." The United States therefore has a substantial interest in the
Court's resolution of the equal protection issue raised in this case.
/1/

                               STATEMENT

   Petitioner and respondent, both white, were divorced on May 29,
1980, by order of the Circuit Court of the Thirteenth Judicial Circuit
of Florida (Pet. 3).  At that time, petitioner was awarded custody of
their three year-old child, Melanie (ibid.).  On September 20, 1981,
respondent filed a petition to modify the divorce decree, seeking to
have custody of the child awarded to himself (ibid.; Pet. App. 23).
Petitioner was then living with a black man whom she married a short
time later, on November 21, 1981 (id. at 24).  Respondent's principal
argument in support of his petition to modify the custody order was
the fact that petitioner was living with a black man, thereby
allegedly creating a bad environment for the child (ibid.).
Respondent also alleged that Melanie had had head lice on two
occasions and that he had found her wearing mildew-stained clothing
(ibid.).

   On February 1, 1982, the Circuit Court held a hearing on
respondent's petition for a change in custody.  The evidence at the
hearing consisted of the testimony of both parties and an
investigative report prepared for the court by a Circuit Court
Counselor (Pet. App. 23).  On March 1, 1982, the Circuit Court issued
an order awarding custody to respondent (id. at 23-28).  The court
made no findings with respect to what it termed respondent's
"secondary" allegations concerning the head lice and the
mildew-stained clothing (id. at 24).  The court did find that
petitioner had cohabited with her present husband before marriage and
that one other male had been at her house on one occasion (id. at
24-25).  The court also noted, however, and apparently accepted,
petitioner's testimony that no sexual activity ever took place in the
child's presence (ibid.).  In addition, the court found that "both
parties have remarried, and there is no issue as to either party's
devotion to the child, adequacy of housing facilities, or
respectability of the new spouse of either parent" (id. at 24).

   The court relied on the report of the Circuit Court Counselor who,
the court noted, had "made a(n) (earlier) report in a case coming out
of this Circuit also involving the social consequences of an
interracial marriage.  Niles V. Niles, 299 So. 2d 162" (Pet. App. 25).
 The counselor's recommendation was the same in both cases-- custody
of the child should be taken away from the mother because the mother
"'had chosen for herself and therefore for herself and her children, a
life style unacceptable to the father of the children, a life style
unacceptable to the father of the children and the society in which we
live'" (id. at 26 (citation omitted)).  /2/

   The court agreed with the counselor's recommendation and ordered
the change in custody (Pet. App. 26-27):

      The father's evident resentment of the mother's choice of a
      black partner is not sufficient to wrest custody from the
      mother.  It is of some significance, however, that the mother
      did see fit to bring a man into her home and carry on a sexual
      relationship with him without being married to him.  Such action
      tended to place gratification of her own desires ahead of her
      concern for the child's future welfare.  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 attains
      school age and thus more vulnerable to peer pressures, suffer
      from the social stigmatization that is sure to come.

   Petitioner appealed to the Florida District Court of Appeal, Second
District, which affirmed without opinion (Pet. App. 29).  Because the
Court of Appeal did not issue an opinion, the Supreme Court of Florida
was without jurisdiction to review the case.  See Fla. Const. Art V,
Section 3(b);  cf. Golden Leaf Bakery, Inc. V. Charles W. Rex
Construction Co., 334 So. 2d 585 (Fla. 1976).

                          SUMMARY OF ARGUMENT

   A. The state court's decision in this case explicitly classifies on
the basis of race by treating the custody determination differently
than would have been the case had petitioner married a white man.
Such explicit racial classifications are "presumptively invalid"
(Personnel Administrator V. Feeney, 442 U.S. 256, 272 (1979)), and
they may be sustained only upon an "extraordinary justification"
(ibid.) demonstrating the existence of a compelling governmental
interest.

   This stringent standard of review is not altered by the possibility
that the state courts might apply the racial classification at issue
to whites as well as blacks.  "Equal application" of discriminatory
classifications was rejected by this Court in Loving V. Virginia, 388
U.S. 1, 8 (1967), and it cannot save the racial classification at
issue in this case.

   B. The state interest asserted in support of the racial
classification employed in this case is in preventing the social
stigmatization that the court believed was "sure to come" (Pet. App.
27) if petitioner's child were raised in an interracial home.
Notwithstanding the strong interest of a state in safeguarding the
best interests of children whose homes must be designated by the
state, prior decisions of this Court firmly establish that states may
not accommodate their decisions to the continued existence of racial
prejudice in our society, whether to prevent racial unrest generally
or to protect the potential victims of such prejudice in particular.
See, e.g., Lee V. Washington, 390 U.S. 333 (1968);  Watson V. City of
Memphis, 373 U.S. 526 (1963);  Cooper V. Aaron, 358 U.S. 1 (1958).

   Florida law provides that in all custody matters its courts are to
be guided by the "best interests of the child." Fla. Stat. Ann.
Section 61.13(2)(b)(1) (West Cum. Supp. 1983).  In recognition of the
fact that it is no business of government to accommodate actual or
perceived popular prejudice, other states employing the same standard
have held that the racial considerations that formed the basis for the
decision below are irrelevant to the "best interests" determination.
See cases cited at pages 11-12, infra.  This is so not only because no
valid evidence exists to support the proposition that living in an
interracial home is inherently harmful to a child, but also because
consideration of race in custody proceedings would as effectively
penalize a parent's right to marry freely regardless of race (Loving
V. Virginia, supra) as if the state continued to maintain an outright
ban on interracial marriages.  Moreover, the strength of petitioner's
interest in retaining custody of her child (cf. Santosky V. Kramer,
455 U.S. 745 (1982)) makes the employment of racial classifications
all the more impermissible.  In short, race must be altogether
stricken from consideration in custody determinations.

   C. There is no merit to respondent's contention (Br. in Opp. 3-7)
that the decision below rests on adequate and independent state
grounds.  Although the Circuit Court noted that petitioner had
cohabited with her present husband prior to marriage, that finding is
insufficient under state law to support the order changing custody.
Under Florida law, a custodial parent's sexual conduct is relevant to
a change-of-custody proceeding only to the extent that it has had a
demonstrable adverse effect on the child.  No such finding was made in
this case;  on the contrary, it is clear from the Circuit Court's
opinion that no change in custody would have been ordered absent the
fact of petitioner's remarriage to a black man.  Accordingly,
petitioner's Equal Protection challenge is squarely before this Court.

                               ARGUMENT

 THE FLORIDA COURT VIOLATED PETITIONER'S RIGHT TO EQUAL PROTECTION OF
THE LAWS BY REMOVING HER CHILD FROM HER CUSTODY ON ACCOUNT OF HER
INTERRACIAL MARRIAGE

   A. Consideration Of A Custodial Parent's Subsequent Interracial
Marriage As A Ground For Modifying A Custody Order Constitutes A
Presumptively Invalid Racial Classification That Can Be Justified Only
If Precisely Tailored To Serve A Compelling State Interest

   The power to regulate marriage, divorce, custody, and child welfare
resides in the states, but that power is subject to the commands of
the Fourteenth Amendment.  Loving V. Virginia, 388 U.S. 1, 7 (1967).
The state court's decision in this case /3/ explicitly classifies
according to race by deciding the custody issue on the basis of
petitioner's remarriage to a black man.  /4/ See Loving V. Virginia,
388 U.S. at 11;  see also McLaughlin V. Florida, 379 U.S. 184, 188
(1964).  "Distinctions between citizens solely because of their
ancestry are by their very nature odious to a free people whose
institutions are founded upon the doctrine of equality." Hirabayashi
V. United States, 320 U.S. 81, 100 (1943).  These distinctions are
odious because they are premised on the arbitrary and irrelevant basis
of skin color-- a basis for state action that the Fourteenth Amendment
was specifically intended to eliminate.  See Loving V. Virginia, 388
U.S. at 10;  Strauder V. West Virginia, 100 U.S. 303, 307-308 (1880);
Slaughter-House Cases, 83 U.S. (16 Wall.) 36, 71 (1873).  Accordingly,
when such racial classifications are at issue, the state must
"demonstrate that its classification (is) precisely tailored to serve
a compelling governmental interest." Plyler V. Doe, 457 U.S. 202, 217
(1982).  "A racial classification, regardless of purported motivation,
is presumptively invalid and can be upheld only upon an extraordinary
justification." Personnel Administrator V. Feeney, 442 U.S. 256, 272
(1979).

   This stringent standard of review is not in any way relaxed, as
respondent contends (Br. in Opp. 11), by the possibility that the
state courts might also consider the effects on a black child of being
raised in an interracial household.  /5/ That a particular racial
classification does not operate uniquely to the detriment of one race,
but rather spreads disadvantage indiscriminately among all races, is
without constitutional significance.  Loving V. Virginia, 388 U.S. at
9 ("the fact of equal application does not immunize the statute from
the very heavy burden of justification which the Fourteenth Amendment
has traditionally required of state statutes drawn according to
race");  McLaughlin V. Florida, 379 U.S. at 188-192.  The Equal
Protection Clause does not "protect" certain racial classes to the
exclusion of others;  it protects all persons from invidious racial
classification.  As the Court stressed in Shelly V. Kraemer, 334 U.S.
at 22, the Equal Protection Clause creates "personal rights,"
"guaranteed to the individual." It is thus no answer to say that the
rights of individuals of both races may be infringed.  "Equal
protection of the laws is not achieved through indiscriminate
imposition of inequalities" (ibid.).

   The Circuit Court treated petitioner's sexual relationship with a
black man and her subsequent marriage to him differently than it would
have had the man been white.  Petitioner's right to marry freely
regardless of race was thus burdened in a way that the same right of
other custodial parents is not.  This differential treatment of an
interracial marriage constitutes a presumptively invalid racial
classification.

   B. The State Court's Racial Classification Is Not Precisely
Tailored To Serve A Compelling State Interest

   1. The state interest asserted in support of the racial
classification established below is in preventing the social
stigmatization that the court believed was "sure to come" (Pet. App.
27) if Melanie continued to live in an interracial home.  It cannot be
denied that the State of Florida has a valid interest in safeguarding
the best interests of children whose homes are to be designated by the
state's divorce courts.  Nor can it be denied that racial prejudice
still exists in our society and that children subjected to such
prejudice may be adversely affected.

   Nevertheless, this Court has made it clear in a variety of contexts
that bowing to popular prejudice, whether to protect the potential
victims of such prejudice or to avoid racial unrest generally, cannot
constitute a sufficient justification for departing from the
constitutional command of equal protection.  In Buchanan V. Warley,
245 U.S. 60 (1917), the Court unanimously invalidated an ordinance
barring blacks from acquiring residences in predominantly white
neighborhoods and barring whites from acquiring residences in
predominantly black neighborhoods.  The Court stated (id. at 81) that:

         It is urged that this proposed segregation will promote the
      public peace by preventing race conflicts.  Desirable as this
      is, and important as is the preservation of the public peace,
      this aim cannot be accomplished by laws or ordinances which deny
      rights created or protected by the Federal Constitution.

   See also Watson V. City of Memphis, 373 U.S. 526, 535 (1963)
(rejecting claim that gradual "facility-by-facility" desegregation of
municipal parks was "necessary to prevent interracial disturbances,
violence, riots, and community confusion and turmoil");  Cooper V.
Aaron, 358 U.S. 1, 16 (1958) ("(L)aw and order are not here to be
preserved by depriving the Negro children of their constitutional
rights.").  Even in the prison context, in which racial unrest is
often intense and the threat of violence ever present, the Court has
indicated that the Fourteenth Amendment does not permit prison
officials to make blanket celling classifications according to race to
accommodate the prejudices of inmates or to prevent racial conflict
assumed to be inevitable.  See Lee V. Washington, 390 U.S. 333 (1968);
 see also id. at 334 (Black, J., concurring).

   The governing principle of these cases was cogently stated by
Justice White:  "Public officials sworn to uphold the Constitution may
not avoid a constitutional duty by bowing to the hypothetical effects
of private racial prejudice that they assume to be both widely and
deeply held.  Surely the promise of the Fourteenth Amendment demands
more than nihilistic surrender." Palmer V. Thompson, 403 U.S. 217,
260-261 (1971) (White, J., dissenting).  In short, the existence of
racial prejudice in our society cannot serve as a permissible basis
for employing racial classifications.

   2. Florida law provides that in all custody matters the courts are
to be guided by the "best interests of the child." Fla. Stat. Ann.
Section 61.13(2)(b)(1) (West Cum. Supp. 1983).  In other states
employing the same standard, the racial considerations that formed the
basis for the decision below have been held irrelevant to the "best
interest" determination.  See In re Marriage of Kramer, 297 N.W.2d
359, 361 (Iowa 1980) ("(c)ommunity prejudice, even when shown to
exist, cannot be permitted to control the makeup of families");
Potter V. Potter, 372 Mich. 637, 648, 127 N.W.2d 320, 326 (1964)
(citation omitted) (possible future effects on child of mother's
interracial marriage "'are matters wholly of speculation and
conjecture, and as such may not affect the present (custody)
determination'");  Edel V. Edel, 97 Mich. App. 266, 293 N.W.2d 792
(1980) (white mother's relationship with and plans to marry a black
man irrelevant to custody determination);  In re Brenda H., 305 N.E.2d
815, 819 (Ohio C.P. 1973) (white mother's marriage to a black man is
of "no significance" in custody determination);  Commonwealth ex rel.
Myers V. Myers, 468 Pa. 134, 144, 360 A.2d 587, 591 (1976) (father's
concern that his children might have "racial problems" due to mother's
relationship with a black man "is not relevant" in custody
determination);  Commonwealth ex rel. Lucas V. Kreischer, 450 Pa. 352,
299 A.2d 243 (1973) (interracial marriage cannot be sole reason for
denying custody).

   These decisions correctly recognize, contrary to the state court's
decision in this case, that the custodial parent's subsequent
interracial marriage is simply an impermissible consideration in a
change-of-custody proceeding.  As one court has noted (In re Brenda
H., 305 N.E.2d at 819 (emphasis added)):

         Irrespective of the chances for success or failure of
      bi-racial or other "mixed" marriages and in spite of abounding
      prejudice of all kinds (racial, ethnical (sic) and religious)
      the American "melting pot" will continue to bring about the
      marital union of persons of different racial, religious and
      cultural backgrounds.  The law wisely does not and should not
      interfere with this process.

   It is of course settled that a state may not criminally prosecute
those who choose as their spouse a person of a different race.  Loving
V. Virginia, supra.  It necessarily follows that a state may not
penalize the right to marry freely regardless of race by taking away
the children of persons who exercise that right.  Indeed, in light of
the strength of petitioner's interest in keeping her child (cf.
Santosky V. Kramer, 455 U.S. 745 (1982)), permitting race to be
considered in change-of-custody proceedings burdens petitioner's right
to marry as effectively as if the state had attempted to prohibit the
marriage altogether.

   In addition to Florida, one other state allows consideration of a
subsequent interracial marriage so long as race is not treated as the
"controlling" factor in custody determinations.  /6/ Russell V.
Russell, 80 Ill. App. 3d 41, 43, 399 N.E.2d 212, 215 (1979)
(permissible for trial court to acknowledge potential social pressures
attributable to interracial marriage so long as race alone is not the
decisive factor);  Langin V. Langin, 2 Ill. App. 3d 544, 547, 276
N.E.2d 822, 824 (1971) (quoting Fountaine V. Fountaine, 9 Ill. App. 2d
482, 486, 133 N.E.2d 532, 535 (1976)) ("'race alone can(not) outweigh
all other considerations and be decisive of the question (of
custody)'").  /7/ It is our view that these decisions are erroneous.
Once race is held to be a "relevant" consideration, it is virtually
impossible to prevent it from becoming the "controlling" consideration
in any particular case.  If, for example, the natural parents are each
found equally fit, then consideration of one parent's subsequent
interracial marriage necessarily will be converted into the decisive
factor.  Moreover, even if it could be confined to "relevant" rather
than controlling status, considering race at all in the custody
decision would be unconstitutional.  As one court has recognized, "(t)
he very act of considering race as a factor, and then disregarding it
as a controlling factor, requires that the state admit contrary to the
Constitution, that there are differences in human beings because of
their color." DeLander V. DeLander, 37 U.S.L.W. 2139, 2139 (Cal.
Super. Ct. Aug. 14, 1968).  /8/ We therefore submit that race should
be altogether stricken from consideration in change-of-custody
proceedings.  /9/

   C. No Independent And Adequate State Ground Supports The Judgment
Below

   There is no merit to respondent's contention (Br. in Opp. 3-7) that
the decision below rests on independent and adequate state grounds.
Respondent relies primarily (id. at 5) on the Circuit Court's finding
that petitioner had cohabited with her present husband prior to
marriage (Pet. App. 24-25, 26), but that finding is insufficient under
state law to support the order changing custody.

   Florida law grants the trial court broad discretion in making
initial custody determinations.  Culpepper V. Culpepper, 408 So. 2d
782, 784 (Fla. Dist. Ct. App. 1982).  Mothers and fathers are to be
given equal consideration in such determinations.  Fla. Stat. Ann.
Section 61.13(2)(b)(1) (West Cum. Supp. 1983).  Once a custody
determination has been made, however, a party seeking a change in
custody carries an "extraordinary burden" (McGregor V. McGregor, 418
So. 2d 1073, 1074 (Fla. Dist. Ct. App. 1982)), and the court has less
discretion to modify a decree than it does when making the initial
custody determination.  Culpepper, 408 So. 2d at 784.  A change in
custody may be ordered only upon "competent, substantial evidence"
showing (1) that there has been a "substantial or material change" in
the parties' circumstances and (2) that the best welfare of the child
will be promoted by a change in custody.  Stricklin V. Stricklin, 383
So. 2d 1183, 1184 (Fla. Dist. Ct. App. 1980).

   Petitioner's relationship with a man and her subsequent marriage to
him undoubtedly constitute a "substantial or material change" within
the meaning of the first prong of the test.  But the extramarital
sexual conduct of a custodial parent is not automatic grounds for a
change in custody.  Such conduct may support an order changing custody
only if there is evidence that it adversely affects the welfare of the
child.  Lisenby V. Lisenby, 419 So. 2d 354, 355 (Fla. Dist. Ct. App.
1982);  Culpepper, 408 So. 2d at 784-785.  In Lisenby, the court
reversed an order removing a child from a mother who, like petitioner
here, had engaged in sexual activity with men, including her
subsequent husband, but never in her child's presence.

   The Circuit Court opined (Pet. App. 26) that petitioner's sexual
conduct "tended to place gratification of her own desires ahead of her
concern for the child's future welfare," but the court did not
conclude that Melanie was, in fact, adversely affected by petitioner's
sexual conduct.  Thus, under Florida law, petitioner's sexual conduct
cannot support the order removing the child from her custody.  Indeed,
but for the court's concern for the anticipated effects of
petitioner's interracial marriage on the child, nothing in the opinion
suggests that a change in custody would otherwise have been ordered.
/10/ The court found "no issue" as to petitioner's "devotion to the
child, adequacy of housing facilities, or respectability" of her new
spouse (id. at 24).  The judgment therefore necessarily rests
primarily, if not exclusively, on the court's concern for what it
perceived to be the inevitable "social stigmatization" to be suffered
by Melanie because her mother had married a black man.  /11/

   Even if the Circuit Court's statement about petitioner's conduct
tending to place her own interests ahead of her child was meant to be
a finding of adverse effect on the child, this Court would still have
jurisdiction.  The Circuit Court explicitly rested its judgment on the
perceived effects of the interracial marriage as well, and it never
indicated that petitioner's sexual conduct standing alone was of such
import as to warrant the change in custody.  The Equal Protection
Clause is violated whenever racial purpose is among the motivating
factors for an official decision if other grounds standing alone are
not adequate to support it.  Village of Arlington Heights V.
Metropolitan Housing Development Corp., 429 U.S. 252, 265-266, 270-271
n.21 (1977);  Mt. Healthy City School District Board of Education V.
Doyle. 429 U.S. 274, 285-287 (1977).

                              CONCLUSION

   The judgment of the District Court of Appeal of Florida should be
reversed.

   Respectfully submitted.

   REX E. LEE

      Solicitor General

   WM. BRADFORD REYNOLDS

      Assistant Attorney General

   LAWRENCE G. WALLACE

      Deputy Solicitor General

   CHARLES J. COOPER

      Deputy Assistant Attorney General

   KATHRYN A. OBERLY

      Assistant to the Solicitor General

   BRIAN K. LANDSBERG

   JOAN A. MAGAGNA

   MICHAEL A. CARVIN

      Attorneys

   DECEMBER 1983

   /1/ Relying on Loving V. Virginia, 388 U.S. 1, 12 (1967),
petitioner also argues (Pet. 14-15) that the state court's decision in
this case violates substantive due process.  Because we believe the
equal protection issue is dispositive, we do not address the due
process issue.  See Caban V. Mohammed, 441 U.S. 380, 394 n.16 (1979).

   /2/ Although the Circuit Court Counselor's report mentioned other
factors bearing on the custody issue, the court relied only upon the
counselor's comment about petitioner's choice of life style.

   /3/ It is well established that "the action of state courts and
judicial officers in their official capacities is to be regarded as
action of the State within the meaning of the Fourteenth Amendment."
Shelley V. Kraemer, 334 U.S. 1, 14 (1948).

   /4/ It is clear from the record that race was the primary (and
probably the exclusive) basis for the state court's decision.  See
pages 17-18 & notes 10-11, infra.

   /5/ Commentators have observed, however, that consideration of race
in custody proceedings typically occurs in the situation presented
here, in which the white mother of a white child subsequently marries
a black man.  Grossman, A Child of a Different Color:  Race as a
Factor in Adoption and Custody Proceedings, 17 Buffalo L. Rev. 303,
304 (1968);  Note, Race as a Consideration in Adoption and Custody
Proceedings, 1969 U. Ill. L.F. 256, 257, 263.  The observation is
borne out by the cases cited at pages 11-12, infra.

   /6/ In the instant case, it appears that racial considerations were
given controlling weight (see pages 17-18 & notes 10-11, infra).  But
the Circuit Court relied (Pet. App. 25) on a prior Florida case
holding that the "effect of an interracial marriage upon a particular
child is but one of many factors which may be considered in
determining the person in whose custody the child's best interest
would be served." Niles V. Niles, 299 So. 2d 162, 162-163 (Fla. Dist.
Ct. App. 1974).  In light of this language, and because there were
other factors present in Niles that arguably supported a change in
custody, one commentator has suggested that Niles, if strictly
construed, authorizes consideration of racial factors only to the
extent that demonstrable harm to a particular child can be shown.
Comment, Child Custody-- Interracial Marriage May be Considered in
Framing Custody Modification Orders, 3 Fla. St. U.L. Rev. 290, 293
n.6, 300 (1975).  So construed, Niles does not support the decision
below.  See page 15 note 9, infra.

   /7/ Similar results have been reached by courts considering custody
disputes following the divorce of an interracial couple.  See Beazley
V. Davis, 92 Nev. 81, 545 P.2d 206 (1976) (unconstitutional to deny a
white mother custody of her children solely because they share the
physical characteristics of their black father);  Fountaine V.
Fountaine, 9 Ill. App. 2d 482, 133 N.E.2d 532 (1956) (race alone
cannot outweigh all other factors in the custody determination);
Tucker V. Tucker, 14 Wash. App. 454, 542 P.2d 789 (1975) (declines to
follow an earlier decision of the Supreme Court of Washington, Ward V.
Ward, 36 Wash. 2d 143, 216 P.2d 755 (1950), and rules that race is
relevant but not controlling).

   /8/ In adoption proceedings, which also are governed by the "best
interests of the child" standard, many courts have concluded that race
may be considered but cannot be controlling.  See Drummond V. Fulton
County Dept. of Family & Children's Services, 563 F.2d 1200 (5th Cir.
1977) (en banc), cert. denied, 437 U.S. 910 (1978);  In re Adoption of
a Minor, 228 F.2d 446 (D.C. Cir. 1955);  Compos V. McKeithen, 341 F.
Supp. 264 (E.D. La. 1972) (three-judge court);  In re R.M.G. & E.M.G.,
454 A.2d 776 (D.C. 1982);  In re Adoption of Baker, 117 Ohio App. 26,
185 N.E.2d 51 (1962);  Rockefeller V. Nickerson, 36 Misc. 2d 869, 233
N.Y.S.2d 314 (Sup. Ct. 1962);  see also In re Gomez, 424 S.W.2d 656
(Tex. Civ. App. 1967).

   In the adoption area, therefore, courts appear to be more willing
to allow serious consideration of racial factors than in child custody
disputes between natural parents.  Whether or not these decisions are
correct (a question not now before the Court), various rationales have
been advanced to justify a distinction between adoption proceedings
and custody proceedings.  In the adoption context, the prospective
parents ordinarily have no legal claim to the child.  Cf. Smith V.
Organization of Foster Families for Equality & Reform, 431 U.S. 816,
838-847 (1977).  In addition, the nature of the state's interest in
regulating adoptions is different.  Traditionally, the object has been
to find a couple that could have biologically parented the child in
order to provide, as nearly as possible, the family environment he or
she might otherwise have had.  There has thus been an effort to
"match" the physical characteristics, including race, of children and
their prospective parents.  See Drummond, 563 F.2d at 1205-1206.  The
wisdom of race matching has been the subject of some controversy (see
Grossman, supra note 5, at 318-319), but most commentators agree that
race should be considered.  Note, supra note 5, at 261;  Grossman,
supra note 5, at 346.  But these factors have no bearing in custody
disputes between a child's natural parents, each of whom has an equal
claim to the child.

   /9/ Even if we were to assume, arguendo, that the existence of
racial prejudice could ever serve as a permissible basis for employing
racial classifications, such a justification is clearly inadequate in
this case because there has been no finding that Melanie would in fact
be adversely affected by community reaction to petitioner's
interracial marriage.  The only "evidence" of detriment to Melanie was
respondent's testimony to his own feelings that the mixed marriage
would put a strain on the child and the Circuit Court Counselor's
conclusion that petitioner's choice of a life style unacceptable to
respondent and to society was a ground for changing custody.  The
court rejected respondent's "resentment" of petitioner's choice of a
black partner as a basis for changing custody, but rested its decision
on the speculation that social stigmatization was sure to come.  The
court heard no expert testimony on this subject, and the commentators
have found no authoritative evidence that an interracial home life is
inherently harmful to a child.  See Note, supra note 5, at 263;
Comment, supra note 6, at 296-299;  Note, Custody Disputes Following
the Dissolution of Interracial Marriages:  Best Interests of the Child
or Judicial Racism?, 19 J. Fam. L. 97, 102 (1980).

   /10/ Respondent also argues (Br. in Opp. 5) that the Circuit Court
"referenced" testimony to the effect that Melanie had had head lice on
two occasions and that she spent eight hours each day in a day-care
center.  But the Circuit Court made no findings with respect to the
head lice, nor did it give any indication that that matter or the day
care issue played any part in the ultimate decision.

   /11/ We have shown that petitioner's pre-marital sexual conduct,
irrespective of the race of her partner, is insufficient, under
Florida law, to support the judgment below.  We note, however, that
even on this issue the Circuit Court seems to have taken note of
petitioner's pre-marital sexual relations with her present husband
only because of his race.  The court's statement (Pet. App. 26) about
petitioner's having placed her own gratification ahead of her concern
for her child's future welfare appears in the middle of a paragraph
otherwise devoted solely to the issue of race.  Moreover, the court's
concern with petitioner's pre-marital sexual conduct related to the
future welfare of the child rather than to any concern for her present
welfare (ibid.).  Because the court apparently did not believe that
Melanie would suffer from the "social stigmatization" of living in an
interracial home until she reached school age (id. at 27), the most
natural reading of the court's comment about petitioner's pre-marital
sexual relations is that it too was based on the race of petitioner's
partner.