Immigration Bias in Family Law Practice
| Author | George Phelan, Annelise Araujo, Donald G. Tye |
| Pages | 29-34 |
WINTER 2022 29
the professional guidance of lawyers and the rulings handed
down by judges, but also in the administrative operations
and attitudes of the court itself—the provision of translation
services and documents in litigants’ native languages and the
assumption that litigants understand the mechanisms of the
court and regard systems of justice as inherently trustworthy,
as examples.
To consider the potential sites of anti-immigrant bias, and
how we can eliminate these responses, we share the following
case example—a composite of multiple clients whom we
have represented or who have come before our court. After
introducing this immigrant family, the lawyers will share
their thoughts on potential pitfalls, and strategies to ap-
proach the matter with sensitivity and equitability. e judge
will follow to explain the perspective from the bench.
The Parties
A husband and wife, both practicing Muslims originally
from Iran, are seeking a divorce after three years of marriage.
e relationship has produced two-year-old twins. Both
spouses were educated as doctors in Iran, where they owned
a home together before emigrating to the United States. e
husband is employed stateside as a physician and pays for all
the family’s expenses. e wife, who speaks only Persian, is
no longer employed outside of the home but serves as
primary caretaker to their children. e couple’s marriage
contract, a feature of many such unions in the Middle East,
calls for the husband to pay the wife 300 gold coins.
e husband led the petition for divorce. e wife,
Lawyers and judges who identify as white, cisgender,
heterosexual men have long been overrepresented in
the family law bar. Meanwhile, immigrants, rst-
generation Americans, and LGBTQ+ people are
appearing before the court more often. As these
demographic shifts continue, family law practitioners are
more likely than ever to encounter parties whose values,
experiences, and cultural assumptions are far dierent from
their own.
is variety of perspectives bodes well for our future as a
vibrant and inclusive country, but it also creates the potential
for miscommunication, ineective legal assistance, and
judicial resolutions that do not adequately address the issues
litigants see as paramount.
e widening cultural gap increases the risk of biases that
disadvantage immigrant litigants in court. How can we avoid
such inequities? is question is rarely discussed; when we do
talk about bias against immigrants in family court, it is most
often in the narrow context of a litigant’s legal status. For
instance, a lawyer or judge may conclude that a mother without
legal residency in the United States cannot be a custodial parent,
due to the possibility of deportation, and instead award custody
to a U.S. citizen father whose job demands or temperament
make him ill-suited for such responsibility.
Avoiding bias predicated on immigration status is critical,
but our discussion here will focus on a more insidious type of
prejudice, which arises from a lack of familiarity with and
understanding of the immigrant litigants the court is
designed to serve. is disconnect manifests itself not only in
Immigration
Bias in
Family Law
Practice
BY THE HON. GEORGE PHELAN, ANNELISE ARAUJO, AND DONALD G. TYE
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
may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.
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