The UCLA Law Review article, Implicit Bias in the Courtroom, discusses implicit racial bias in the courtroom in a criminal context as well as civil litigation context. 59 UCLA L. Rev. 1124 (2011-2012). The article follows the various steps in the processes for a criminal defendant and a civil plaintiff or defendant, from arrest to sentencing, and identifies which actors may have implicit bias toward the defendant and whether that bias matters in the context of justice. Finally, the article discusses what, if anything, can be done to combat the negative effects of racial bias in the court. Though the Family Court system is not included in this article’s discussion, California Family Law brings some unique challenges where implicit bias can significantly impact the outcome of a case.

The Family Law Setting

In the Family Law context, there are no juries and often cases do not even go to trial. Police involvement and the arrest process are sometimes, though not often, part of the typical Family Law case. The judge has a substantial amount of discretion and control, and unlike other areas of law, the judge might have to preside over multiple trials in the same case all on different issues (domestic violence, support, property division, etc.). A significant number of Family Law parties are pro per. Family law parties are diverse in terms of race, age, immigration status and socio-economic status.  Some parties were married in other states, or even foreign countries, and are now subject to divorce regulations pursuant to California law. Lawyers, judges, and even the court resource offices (clerk office, etc.) all affect Family Law case participants and if any of those actors are influenced by implicit bias, it can affect the outcome of the case.

Judges’ Implicit Bias

In Implicit Bias in the Courtroom, the article references a study revealing that “97 percent of judges believes that they were in the top quartile in ‘avoid[ing] racial prejudice in decision-making’ relative to other judges.” 59 UCLA L. Rev. 1124, 1172 (2011-2012). A majority of judges feel they are not racially biased in their capacity as judges, and better at avoiding bias than their peers. Though the study does not specify, presumably this pattern extends to Family Court judges as well. As the article emphasizes, the issue with this mindset among judges is “when a person believes himself to be objective, such belief licenses him to act on his biases.” 59 UCLA L. Rev. 1124, 1173 (2011-2012). In summary, judges might be less likely to evaluate their own performance for bias because they already believe they act without any bias.

How does Implicit Bias Affect Family Law?

The effects of implicit bias as discussed in the article can certainly apply to the Family Courtroom. Judges who are subconsciously biased toward a certain race might be less inclined to believe them or to rule in their favor. Because judges can play a significant role in ongoing trials for a case, a judge’s implicit bias can certainly impact that case. However, there are unique ways that implicit bias can affect family law.

If a couple is married in another country, or married in the United States but strongly adheres to the traditions of their non-US heritage, once they decide to get divorced in the United States they will be subject to United States Family Law which might conflict with their traditions. What the typical family home environment should look like, and what the typical marital relationship should look like, can differ dramatically among different cultures and countries. For example, a woman’s role in the household as primary caretaker for the children is not a consistent view throughout all cultures. A man’s exclusive control over finances can be considered the norm. Corporal punishment for children can be considered a norm. If a judge in California, for example, has a subconscious notion of what the family environment should look like in her view, then she might be implicitly biased towards parties who are trying to adhere to their traditions in conflict with the local precedent. A judge might rule in favor of a parent who adheres closer to the judge’s biased view of what the family should do, rather than looking at how the parties actually conducted their home life during the marriage. A judge might decide that a husband is being abusive by excluding the wife from financial decisions, for example, when that arrangement is a traditional norm for the parties during the marriage. This is not a comment on what produces a better outcome for the parties, but rather a note about how bias plays a role. Additionally, though many Family Law parties are pro per, those who have lawyers may be affected by the lawyer’s implicit bias in the same manner as addressed above.

Conclusion

While the different proposals for combating racial bias in the courtroom, as discussed in Implicit Bias in the Courtroom, are certainly applicable to the Family Court setting, the diversity of the typical Family Court litigant and the Court’s intrusion into the extremely personal home setting can increase the effect racial bias can play in the case. Attorneys practicing Family Law should ensure that they have a strong understanding of their client’s family dynamics, their cultural traditions, and knowledge of how their client’s traditions might vary from the local judge’s perspective. This knowledge will help attorneys better advocate for their clients in the face of implicit bias.

Allison Nunes