Bias in the Family: Race, Ethnicity, and Culture in Custody Disputes

• Author: Solangel Maldonado
• DOI: http://doi.org/10.1111/fcre.12274
• Published date: 01 April 2017
• Date: 01 April 2017

BIAS IN THE FAMILY: RACE, ETHNICITY, AND CULTURE IN

CUSTODY DISPUTES

Solangel Maldonado*

This essay examines the role of racial, ethnic, and cultural bias in custody cases. It analyzes cases where the court explicitly

considered the parents’ racial, ethnic, or cultural background and cases where the court did not acknowledge these factors but

where it is clear from the court’s opinion that biases influenced its decision. It then briefly describes the literature on implicit

bias to demonstrate how biases may influence the assessments of custody evaluators, lawyers, and judges despite best efforts to

make fair and impartial decisions. Drawing on studies suggesting that individuals can reduce their implicit biases and their

effects on decision making, the essay explores individual strategies and institutional reforms to address bias in custody

disputes.

Key Points for the Family Court Community:

Custody evaluators, lawyers, and judges are influenced by the racial, ethnic, and cultural backgrounds of the parents

and the child in custody disputes.

Implicit biases may influence how custody evaluators, lawyers, and judges interpret parents’ behaviors and testimony.

Preferences for parenting styles favored by middle-class families disproportionately disadvantage racial and ethnic

minorities and low-income families.

The best interests of the child standard increases the risk of intuitive and biased assessments.

Acknowledgement of racial, ethnic, and cultural differences is necessary to reduce bias.

Individual strategies and institutional reforms may help reduce bias and its effect on assessments and decision making

in custody cases.

Keywords: Best Interests of the Child; Cultural Bias; Custody Disputes; Ethnicity; Implicit Bias; Interracial; Multiracial;

and Race.

INTRODUCTION

In the vast majority of cases, divorcing or separating parents come to an agreement on their child-

ren’s custodial arrangements.

1

However, parents who cannot agree rely on judges to make those

decisions for them based on the best interests of the child.

2

When making child custody determina-

tions, courts look to their state’s statutory best interest factors which may include, among other fac-

tors, the child’s preference if s/he is old enough to express one, which parent has been the primary

caregiver, the emotional bond between each parent and the child, the mental and physical health of

the parents and the child, the parents’ employment responsibilities, any history of domestic violence,

and each parent’s willingness to encourage a close relationship between the child and the other par-

ent.

3

Custody statutes generally do not expressly authorize courts to consider the parents’ racial, eth-

nic, or cultural background. Furthermore, although the statutory best interest factors are

nonexhaustive and the court can consider “any other factors it finds relevant,”

4

most legal commenta-

tors agree that courts should focus on the child’s best interests without regard for the parents’ racial

or cultural background. The American Law Institute’s (ALI) Principles of the Law of Family Disso-

lution reflect this position and prohibit consideration of the race or ethnicity of the parents or the

child.

5

The American Psychological Association’s (APA) Guidelines for Child Custody Evaluations

Correspondence: solangel.maldonado@shu.edu

FAMILY COURT REVIEW, Vol. 55 No. 2, April 2017 213–242

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C2017 Association of Family and Conciliation Courts

in Family Law Proceedings advise psychologists (who often make custody recommendations to the

court) to be “aware of their own biases, and those of others, regarding age, gender, gender identity,

race, ethnicity, national origin, religion, sexual orientation, disability, language, culture, and socio-

economic status.”

6

The Guidelines further caution that “[b]iases and an attendant lack of culturally

competent insight are likely to interfere with data collection and interpretation and thus with the

development of valid opinions and recommendations.”

7

The ALI Principles and APA Guidelines do not always reflect what takes place in courtrooms. In

custody disputes involving interracial or interethnic couples, some judges explicitly consider the

parents’ racial, ethnic, and cultural backgrounds.

8

Judges also consider a parent’s language ability or

immigrant status—factors that are often proxies for race, ethnicity, or culture. These considerations

may be appropriate in certain scenarios, such as when interpreting personality tests and other assess-

ment tools that may favor the cultural norms of the majority or when assessing the home environ-

ment or how a parent plans to address the child’s multiracial identity.

9

However, there is a risk that

judges, custody evaluators, and practitioners will assess parenting attitudes and behaviors in accor-

dance with dominant, predominantly White middle-class norms. There is also the risk that judges

and custody evaluators will place inordinate weight on the racial, ethnic, or cultural background of

the parents. Such focus may not necessarily further the child’s best interests.

10

Despite evidence that custody decisions are influenced by the racial and cultural backgrounds of

the parents and the child, many judges do not believe that they or their colleagues are influenced by

these considerations. As shown below, appellate courts are often reassured by the trial judge’s asser-

tion that race, ethnicity, or cultural background played no role in the custody determination. Howev-

er, studies have shown that implicit biases—biases that individuals are not consciously aware of—

may affect outcomes in employment, criminal, immigration, bankruptcy, environmental, and person-

al injury cases, among others.

11

While few scholars have examined the role of implicit bias in family

law decisions,

12

unconscious biases may influence a judge’s or custody evaluator’s perception of a

parent’s behavior as defensive, passive, or impulsive based on racial or cultural stereotypes.

13

Because these biases are often the result of deeply rooted stereotypes learned at a young age, judges

and custody evaluators may not recognize their biases despite genuine efforts to be impartial and

fair.

14

Implicit biases are especially difficult to detect because individuals unconsciously attempt to

reconcile their explicit and implicit beliefs. Judges, like all human beings, are likely to search for and

process information that is consistent with their preferences.

15

Thus, a judge or custody evaluator

assessing two parents may find nondiscriminatory reasons to justify a preference for one parent even

though his/her evaluation was influenced by race, ethnicity, culture, or one of their proxies. The

amorphous best interests standard further increases the risk that the implicit biases that influence cus-

tody disputes will go unnoticed.

16

This essay exposes the role that race, ethnicity, and culture play in custody disputes.

17

While it

recognizes the risks created by courts’ consideration of the racial, ethnic, and cultural backgrounds

of the parties, it concludes that, in at least some cases, it is foolhardy to make custody decisions with-

out explicit regard for these considerations. First, as demonstrated by the cases below, judges and

evaluators are influenced by these factors even when they claim (and genuinely believe) otherwise.

Implicit biases influence custody evaluators’ and judges’ interpretation of parents’ behaviors and tes-

timony, and denying the existence of implicit preferences does not eliminate their influence. In fact,

studies suggest that a colorblind approach, whereby racial, ethnic, or cultural differences are not

acknowledged, is more likely to result in biased decisions.

18

Second, in some cases the parents’

racial, ethnic, or cultural background is relevant to the child’s well-being and its consideration would

further the child’s best interests.

19

The challenge, of course, is determining when these factors are rel-

evant. How can legal actors distinguish between appropriate and inappropriate considerations of race

and culture? How do we determine how much weight these considerations should be accorded? How

do we ensure that judges and evaluators recognize their implicit biases and minimize their effect on

their decision making?

This essay proceeds as follows. The first part analyzes cases in which the court explicitly consid-

ered the parents’ racial, ethnic, or cultural background and the circumstances that warrant

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