BY IMANI SHANNON AND SUNITHA ANJILVEL
The term “implicit bias” was coined in 1995 by University of Washington Professor Anthony Greenwald and Yale University Professor Mahzarin Banaji.11 https://faculty.washington.edu/agg/pdf/Greenwald_Banaji_PsychRev_1995.OCR.pdf. In recent years, the term has been increasingly used as a stepping stone for legal professionals to understand how unconscious attitudes or stereotypes can affect our understanding, leading to actions and decisions based on those biases. Our brains process associations from the media we consume, family, friends, and others into shorthand schemas, or mental shortcuts. These schemas can consist of either positive or negative associations.
Throughout the nation, demographic data (such as gender identity and race) shows that the legal profession is not representative of the broader population.22 www.theiilp.com/resources/Pictures/IILP_2016_Final_LowRes.pdf. Review of the anonymized demographic data the WSBA collects indicates that our members with lived experiences from systemically marginalized populations are also underrepresented in the WSBA membership. Experts suggest that part of this lack of representation is due to implicit biases. For people from underrepresented communities, these biases can lead to barriers to entry into the legal profession, and, for clients, can also lead to barriers to access to justice. 33 www.law360.com/articles/795764.
HOW BIAS MAY PRESENT IN FAMILY LAW PRACTICE
But what are some of the ways bias shows up in family law specifically?
The authors’ experiences in family law court proceedings, one as an attorney representing clients and one as a support person and advocate accompanying clients, is that bias presents in different ways. Bias against an attorney in court affects how the client feels about the overall court process and outcome. For example, women attorneys, gender-diverse attorneys, attorneys of color, and/or disabled attorneys might be slighted by opposing counsel or court staff.
Clients also face bias as to who is perceived to be or who should be the caregiver to children. Associations we may have developed from media stereotypes support the characterization of caregivers as typically comprising cisgender women44 www.verywellhealth.com/what-does-it-mean-to-be-cisgender-3132607. and femme-presenting people. (Cisgender is defined as someone whose gender corresponds to what they were assigned at birth.) This stereotype affects both heterosexual and LGBTQ couples, but it can disproportionately impact LGBTQ couples.
Nuclear family structures have been normalized in our society to default to structures consisting of the parents, typically a cisgender man and cisgender woman, and the children. This type of nuclear family also presumes cis heteronormativity. Cis heteronormativity is the assumption that people you meet are both cisgender and heterosexual. When at least one of the caregivers in a family openly identifies under the trans umbrella of gender identities, this goes against normalized cis heteronormativity and can lead to bias and stigma.
Heteronormative assumptions exclude non-traditional family structures such as same-gender parents, multi-parent custody agreements, and nontraditional family contracts. They also exclude multi-generational and extended families living in one home and playing a large role in raising the children, a cultural upbringing common to many families of color.
Other biases in family law manifest in the areas of domestic violence and trauma. Society has developed schemas surrounding domestic violence, from media portrayals of domestic violence focusing solely on physical violence to the ways violence is talked about in family and friend groups. This unconsciously influences our perceptions of abusers, commonly leading to victim blaming and expectations for survivors to act a certain way, especially after the relationship has ended. These implicit biases surrounding intimate partner violence are compounded by biases we have toward or against other social identities: race, gender, socioeconomic status, age, ability, sexual orientation, and immigration status.
The behavioral definition of intimate partner violence, used by community-based advocacy programs, shows how domestic violence is a pattern of coercive control, with behaviors including physical, psychological, and sexual attacks, and economic coercion that someone uses against their intimate partners. The intent and context of the behaviors help to indicate whether the behaviors are being used to assert control or to protect oneself.55 https://endgv.org/wp-content/uploads/2016/03/Domestic-Violence-Definitions-03-14.pdf. When domestic violence is present in a relationship, it can make the survivor feel smaller and reduce their access to support. Surviving this trauma can include myriad responses, such as creating new and/or exacerbating existing mental health issues, difficulties with self-regulation, and problems setting boundaries and/or forming attachments with others. It also shows up in family court in a variety of ways, such as a survivor being triggered by having to see and stand physically close to their abuser, the perception that the survivor is unable to keep the child safe and protected, and the opposing party engaging in abusive litigation throughout the custody process.
MITIGATING BIAS IN FAMILY LAW PRACTICE
There are actions you can take as a legal professional to mitigate the effects of bias for your clients. It is not enough to learn about our implicit biases. To ensure equity throughout the legal process, we need to be more proactive in countering bias and challenging what has been normalized.
It could be argued that family law, more than most other areas of law, involves making decisions on the basis of assumptions that lend themselves to the potential for negatively impactful bias. Family court judicial officers are asked to identify and measure parenting capabilities based on assessments where subjectivity cannot help but creep in as the elusive legal fiction “the best interests of the child” is applied to identify an appropriate custody determination. Judges, too, can be biased. Studies of judicial bias confirm that not all judges are impartial, and are influenced by their identity and experiences.66 www.americanbar.org/content/dam/aba/events/state_local_government/2021/midyear/peekingbehind.pdf.
While our statutes enumerate standards and factors for assessment, the application of those standards is fact-specific, case-dependent, and vulnerable to biased assumptions. Some biases are firmly rooted in legal history. In the 19th century, common law courts embraced the “doctrine of tender years” in family law, which supported an assumption that it was in the best interests of children under four to be in the custody of their mother. The doctrine was favored for over a century, and exemplifies a type of bias that certainly may have negatively impacted generations of capable fathers seeking custody of their children.
In this millennium, the question arises as to whether we should continue to rely on outdated biased assumptions about what family structures are, and whether cis heteronormative perspectives dominate our family courts in a way that allows no room for those who fall outside the so-called norms. Families come in all shapes and sizes, and other cultures recognize extended family as a vital part of family structure. If these “non-traditional” aspects of family present in a case and can be of positive benefit to children, it is critical that our legal system acknowledges the benefit.
WHAT LEGAL PROFESSIONALS CAN DO
The good news is that some of the most effective methods for mitigating bias are actually part of good lawyering in family law. Presenting a case in a family law custody case is always about telling your client’s story and how your client will maximally support the child’s emotional, developmental, and material needs. For the judge to make informed decisions that are as bias free as possible, you as an attorney need to present the court with a picture of your client’s life within the context of their community and their “family.” Below is a non-exhaustive list of suggestions:
- Educate yourself about anticipated issues in your case relating to bias. When you have a client from a diverse or underrepresented background, learn what you can about where your client is coming from. Do you have preconceived assumptions about your client that you need to examine? Are you assuming things about your client without actual knowledge? Ask your client frank questions about their background and how their background informs their own perspective of their case. If your client does not speak English, spend time connecting with them through a translator or interpreter. Recognize that nuances in language may be lost in translation, and you must take your time so that you and your client understand each other. If your client comes from a non-heteronormative background, learn about what family and community mean to them specifically. Does your case involve interracial or cross-cultural issues? Identify and examine these issues.
- Educate the court about who your client is. When presenting your case, be mindful of how you present your client’s identity. Use your client’s correct pronouns, pronounce their full names even if—and perhaps especially if—you think their name is difficult to pronounce. Use the correct pronouns in court pleadings and intake forms, using a footnote to explain if you think the pronouns will be unfamiliar to the court. A person’s name and pronouns are fundamental pieces of their identity. Lead by example in respectfully acknowledging your client’s full nomenclature and pronoun choices.
- Present the individual family structure of your client to the court. Educate the court about what family specifically means to your client and how they are engaged with family, whether it is their chosen family or family of origin. Show why your client’s chosen family or family of origin supports the best interests of the child. If you are dealing with non-heteronormative family structure, tell your client’s story in the context of that structure and how it relates positively to benefitting the child.
- Present the relevant cultural context of your case. In cases involving cultural diversity, be sensitive to issues of language, religion, and the belief systems that affect your case and your client. Don’t assume that because your client and the opposing party are from the same country that they subscribe to the same cultural beliefs. Be sensitive and respectful about issues as you recognize that there are cultural clashes between the parties.
We are in a world of shifting norms, particularly with respect to the concepts of family and culture. The arena of family law is vulnerable to historical biases that favor a static and stereotypical status quo. As our populations continue to increase with respect to cultural diversity as well as non-heteronormative diversity, understanding, appreciating, and educating ourselves and our courts about our clients is imperative.