Biased Custody Decisions or Common Sense: When Are Race, Ethnicity, and Cultural Norms Relevant to a Child's Best Interests?

• Author: Solangel Maldonado, Jonathan Ross
• Pages: 42-46

42 FAMILY ADVOCATE www.shopaba.org

Biased Custody

Decisions

or Common

Sense

inuenced by implicit biases than judges who address these

dierences. Although we are unlikely to completely

eliminate our biases, researchers have developed a number

of techniques that may help to reduce their eects in

custody decisions.

Unconscious Bias

e human mind must constantly interpret vast amounts of

information, requiring us to rely on shortcuts by way of

heuristics—strategies that utilize judgments to solve prob-

lems quickly and eciently. When interacting with others,

we often make unconscious assumptions about a person

based on their race, ethnicity, or cultural background. For

example, we may assume that African Americans have

natural athletic ability, or that Asian Americans have excep-

tional aptitude in mathematics. Although we recognize that

not all members of a group t into these categorical assump-

tions, these implicit associations can inuence our attitudes

towards members of dierent groups.

Studies have shown that the majority of Americans,

including trial court judges, have implicit biases—uncon-

scious stereotypical associations—toward dierent groups.

eses biases may aect decisions in the courtroom. Indeed,

studies have found that implicit biases may aect immigra-

tion, environmental, and personal injury cases, among

others, and that a party’s race and gender may trigger

cognitive biases that lead to harsher treatment and less

favorable outcomes in the courtroom.

Family law scholars have written extensively about

racial, ethnic, and cultural bias in the child welfare

system. ey have also examined the child support

system’s disparate impact on African American

fathers. Few scholars, however, have examined the

role of race, ethnicity, and culture in custody disputes. What

role do race, ethnicity, and cultural norms play in these cases?

Should they play any role at all?

Our racial, ethnic, and cultural identities are crucial to a

healthy self-image. Parents shape children’s identities

(especially when children are young), and interracial,

interethnic, and intercultural parents (like all t parents)

have virtually unfettered discretion to determine which

aspects of their child’s identity to develop and nurture.

When parents cannot agree on a custody and parenting

plan, courts sometimes explicitly or implicitly consider the

parents’ and the child’s racial, ethnic, and cultural back-

grounds as part of the best interests of the child analysis.

Courts have also considered a parent’s immigration status

or whether a parent speaks English to the child—consider-

ations that may be based on racial, ethnic, or cultural

biases. ese considerations may be pertinent to a child’s

best interests in some cases, but there is a risk that legal

actors will place undue weight on these factors or will

evaluate parental decisions based on white middle-class

norms, especially when they are unaware of their biases. In

fact, judges who do not acknowledge racial, ethnic, or

cultural dierences may be more likely to make decisions

When Are Race,

Ethnicity, and

Cultural Norms

Relevant to

a Child’s

Best Interests?

BY SOLANGEL MALDONADO AND JONATHAN ROSS

Published in Family Advocate, Volume 44, Number 3, Winter 2022. © 2022 by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof

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