Judicial Bias - A Variable That Is Often Overlooked in Family Law Litigation

“It is generally agreed that a litigant is entitled to have her case decided by a judge who can approach the facts in a detached and objective manner; indeed, the protection of the integrity and dignity of the judicial process from judicial bias has been hailed as ‘the palladium of our judicial system.’” In fact, California Code of Judicial Ethics provides in part as follows: "A judge shall perform judicial duties without bias or prejudice. A judge shall not, in the performance of judicial duties, by words or conduct, manifest bias or prejudice, including but not limited to bias or prejudice based upon race, sex, religion, national origin, disability, age, sexual orientation, or socioeconomic status." In an effort to accomplish such a result, "judges are trained to be sensitive to problems of bias." This is a quote from a Judicial Officer in California in response to a Discussion on LinkedIn entitled, "IS THERE GENDER BIAS IN OUR FAMILY LAW COURTS?" That same Judicial Officer also stated, "I can say that one does not undergo an instantaneous transformation from whatever one may have thought or believed as an attorney just by being sworn in as a judge or commissioner."

In his book "Mediating Dangerously - The Frontiers of Conflict Resolution", Kenneth Cloke made the following statement regarding bias: "[T]here is no such thing as genuine neutrality when it comes to conflict. Everyone has had conflict experiences that have shifted his or her perceptions, attitudes, and expectations, and it is precisely these experiences that give us the ability to empathize with the experiences of others. Nor are there any genuine neutrals in courts, including judges, CEO's, managers, and human resources representatives, all of whom have biases and points of view, including the bias of wanting to protect the organization from being disrupted by conflict. Judges have the most intractable bias of all: the bias of believing they are without bias." [emphasis added]

After a recent experience in court wherein the Judge’s ruling was either based upon her lack of experience in family law or her personal biases, I started the following Discussion in various groups on LinkedIn: “DOES ANYONE REALLY BELIEVE THAT IT IS POSSIBLE FOR A FAMILY LAW JUDGE TO BE UNBIASED?”

In order to encourage discussion, I commented as follows: “With the divorce rate what it is, everyone has been touched in some way by divorce and/or custody and support issues. We may have been impacted by our own family law matter, our parents' family law matter or our child's family law matter. It is pretty well established that with few exceptions, everyone feels as if they paid too much, received too little, obtained a custody/visitation result that was "unfair" to them, etc.

EVERY judicial officer has their own personal biases in the family law court. We therefore try to determine whether the judge assigned to a particular case is biased for or against our client. We select custody evaluators that are hopefully biased in favor of our particular client. The same exact case would have incredibly different results from one court to the next. The bias impacts the judge's factual findings, the great discretion they are given and how they opt to apply the law. This bias exists in no other area of law to this degree. No amount of bias elimination training can educate a judge to forget about their life experiences, assumptions, personal beliefs/views and biases.

This issue alone makes family law litigation very unfair and inequitable. In reality, the only unbiased family law judges are those who have never been personally impacted by family law. This is very unlikely and becomes increasingly more unlikely over time.”

With very few exceptions everyone who commented was of the opinion that judicial bias in family law litigation is a serious concern. However, what I found most interesting was how people's responses tended to vary based upon their involvement in the legal system.

Three forensic accountants who testify as expert witnesses in on financial matters family law court in various parts of the country made the following comments.

"Mark - This is a great post, which highlights a variable that is often overlooked in family law litigation." [emphasis added] In a subsequent phone conversation, he told me that on a Monday, he can be testifying on behalf of a husband before a judge who is known to be biased against husbands and he will notice that the judge pays very little attention to his testimony (because the judge was going to rule in favor of the wife regardless of his testimony). He can return to the exact same courtroom on the following Wednesday (only two days later) on a completely different case and notice that the same judge will pay very close attention to his testimony because he happens to be the expert for the wife in that case (and the judge needs to grasp the testimony that will allow him/her to rule in favor of the wife).

"I have noticed judicial bias come into play." [emphasis added]

"It is ironic in a way. In most litigation, one of the great unknowns (and therefore great concerns) is the jury. You must distill complex legal, commercial or scientific issues to a basic enough level for the least common denominator of a, largely, inexperienced group of people to follow in a short time frame. In family law (and these days some commercial matters in jurisdictions following the Delaware model), we eliminate that concern by putting the matter before a, presumably, intelligent, experienced jurist. What gets lost is the balance that comes from decisions reached through consensus of multiple points of view.” [emphasis added]

Two mental health care professionals who stopped doing custody evaluations for family law court had the following comments.

That was my experience in NJ 15 years ago. Ex Parte communication, churning cases, corruption among expert witnesses, etc. I simply stopped practicing in the family courts and never looked back…. I recall when I complained to my attorney that something was "not fair" he said, "What make's you think the system is fair?" As a trained cognitive-behavior psychotherapist, it would have been better of me to have known that.” [emphasis added]

“I have to agree with you. As a former custody evaluator AND as a father who got his parental rights constructively terminated (4 hours with my daughter twice a month, 3000 miles away) because the judge didn't like me, I speak from experience.

I think the real problem is that family law judges, at least in California, have far too much discretion. They can basically do nearly anything they like, and very few people have the money to file and pursue an appeal. Removing much of that discretion would serve to control the bias to some extent.

There is no way you are going to find unbiased judges or teach judges to be unbiased.

I stopped doing custody evaluations when I realized that the judges didn't care one bit what my opinion was, and no matter what it was, it always made one of the parties VERY angry.

Mental Health custody evaluators are at extremely high risk for malpractice lawsuits, medical board complaints, and bodily injury.

I can make money in many other less risky ways.” [emphasis added]

A therapist made the following remark: “I know for fact that here in NM the corruption is so wide spread that even when the judge is related to someone appearing before them, the judge does not recuse him or herself in order to provide an unbiased judgement. After all, they are just lawyers. What do they know? We have really screwed up as a culture to allow a specific segment of professionals think that they are the Solomon of our society. Not only are judges not accountable for their bone head decisions but the poser that they feel is incredibly ludicrous. We have to change this system quickly.” [emphasis added]

A psychotherapist commented as follows: “Of course judges cannot be unbiased. They are human beings and lawyers who are biased by training and practice. they may be able to assist in deciphering information to degree that decisions might be fair, but let's be realistic.” [emphasis added]

Another therapist stated, “I treat the trauma people experience as they are going through that process. Despite what I tell them to expect they just come in week after week more deflated. Evidence doesn't get entered into the process despite information being provided by the child's therapist. They are dumfounded by how the system is so willing to give the wrong parent primary custody.” [emphasis added]

A family law consultant commented as follows: “All human beings are born with bias and we often do not recognize it even when it is obvious to others around us.” [emphasis added]

Those family law attorneys were very forthright about the problem with judicial bias in the family law courts made the following comments:

Makes a lot of sense to me.” [emphasis added]

“Even when the trial lawyer has done a good exposition of the case, there are judges that are so traumatized with their own issues, they cannot be unbiased. Some judges are so clearly biased that you can basically read their minds and know the outcome before it is rendered.” [emphasis added]

[T]here are those [judges] who think they already know what 'these people' [the parties testifying] are really like, so they don't bother with listening to them." [emphasis added]

“Judges are biased. Custody evaluators are biased. Lawyers are biased. Teachers are biased. Friends and family certainly are biased. And the parents themselves are biased. While they know their children best, in the emotional turmoil of a divorce, it is difficult for many to separate their own needs and desires from what is the best thing from the children's perspective (which is often to have the parents deal with their marital issues and stay together).

There is previous little empirical evidence telling us what parenting plans will work for any given family. There are simply too many variables. About the only robust research findings there are suggest that kids don't do well when their parents remain bitterly conflicted, and that kids do best when their parents are mature, loving, consistent presences in their lives. But that says nothing about what parenting time should look like. I do believe that a lot of the 50-50 custody time share orders are an easy cop out done more to be "fair" to the parents.

I am a custody lawyer who does NOT try to get custody evaluators who are biased in favor of my adult clients. I am clear to my clients that I will refer them only to people who are trying to figure out what plan will best serve the child, maximizing each parent's strengths and minimizing their weaknesses as they look for the best fit with these children's specific needs.

Custody decisions will always be more art than science, and given the unique circumstances of every family, no legislation or protocol or standardized test will ever be able to arrive at the optimal parenting plan. So we are left with a bunch of flawed adults making decisions about kids' lives. The best we all can do is to try to keep the entire process (whether in litigation, mediation, evaluation, or collaborative process) as child-oriented as possible and to return as often as we can to objective criteria. If the parents can do that themselves, terrific. If they can't we can just do the best we can. But awareness of our own biases is an important first step.” [emphasis added]

While we may see it (personal bias) most in family law cases, the same is true about every area of the law. People need to remember that people are people and the fact that he or she is a judge doesn't change that. Stressing the "pot luck" nature of going to court is important as soon as possible to have would be litigants get a reality check, IMHO..." [emphasis added]

The bias of judicial officers certainly extends to attorneys in their courtroom. Early in my career, I was arguing a motion in Ventura. The opposing counsel had done something really unethical, which would prejudice our client. I filed a motion explaining the situation in detail; opposing counsel filed a reply with a one-line declaration denying all. At the hearing, the judge denied my motion, saying, "I've known Mr. X for many years, and simply don't believe he would do that." He wouldn't be dissuaded, and thereafter became the presiding judge. In LASC Central, an otherwise well-respected judge often took an immediate dislike to a client, and his rulings reflected it. In each case, complaints would have been meaningless, given the stature of the judges.” [emphasis added]

“Here in New Jersey family Judges frequently have no family law experience whatever. It is rare to get a judge who actually practiced family law before being appointed to the bench. There is an attitude among legislators and judicial administrators that any fool can be a family judge. That coupled with the biases that new judges bring from their personal lives frequently reeks havoc with client's lives.... I don't have any great answers, but the system is a disaster. I'm equally cynical about guidelines. It is a tribute to the lack of fairness in the system, that we have to use a chart to restrain the bad, biased often irrational decisions you would otherwise get. I wonder if you lessened the discretion that the family judge has if you might get a better quality of decision in general.” [emphasis added]

“These are great points by everyone. Mark, thank you for posting this. You're right. We've all seen the judges and lawyers where you just groan knowing you have to deal with this person. First, my bias, I have a close friend who is a judge in Germany and I know how hard she works and how much she believes in justice, understands its history, and wants to do her best. And she has a really tough job. My personal opinion is that the judicial system is like any other. It's a system that depends on people to make it work. That includes the judges and the lawyers and the higher the quality of both, the better it is for everyone. With that being said, the quality of both run the gamut. I don't know that there's anyone who doesn't have preconceived notions of the judicial system, lawyers or people in general (some are just more aware of it than others). As an example, a judge could be raised a certain way or have a childhood experience that colors their view of certain kinds of people (eg., blondes). This is my example because it's relatively tame. They see a scenario unfold in a courtroom, we'll assume here well prepared, and their preconceived notions still affect their decisions in ways they don't understand. I hope that this isn't too wordy and clear to everyone. My point is, even the best judges and lawyers can really only do their best. My personal opinion is that's a good start.” [emphasis added]

Other family law attorneys acknowledge judicial bias, but tried to minimize the problem by commenting as follows:

“I recall a talk that District Judge Willers of the now defunct Hitchin County Court once gave to the Hertfordshire Family Law Association some years ago. She told the audience that what went on in her private life inevitably impacted on and informed her judgments. Although she managed in the vast majority of cases to reach her judgment based on the facts before her, the fact is that occasionally her own life experiences impacted on the judgments she handed down.

That said, surely the job of an effective advocate is to overcome these biases, to enable the tribunal to refocus or reframe their preception and opinion of the case.

As has already been said, mediation and the collaborative process put the parties in the driving seat and hopefully give them the resources to arrive at arrangements for them and their children that work best for their family.” [emphasis added]

“Everyone has their own prejudices based upon background and life experiences. Judges are no different, although their job is to try and put that aside and deal with what is appropriate in each specific case. A good attorney is aware of this and will find a way to present things to this judge to get an appropriate result for his/her client.” [emphasis added]

“I'm not sure I totally agree, Mark. Yes nearly everyone has been impacted in some way by someone's divorce. I think, though, that the observations gleaned from those situations can sometimes diminish bias that would otherwise exist -IF the judge is able to take a step back and take a broader perspective (not all cases are like what they've seen, there's more here than meets the eye, etc.) Unless we get enough experience or somehow get to know a particular judge, however, we don't know if a particular judge is biased and if so, how.” [emphasis added]

“This discussion is a difficult one. I have been in the domestic relations court since 1992. I have practiced in ten different counties in Ohio during my career. I believe what you are discussing is judicial realism. It is not possible for a judicial officer to shed all of his or her life experiences. However, good judges, and yes Mark I actually have been in front of good judges, are able to acknowledge their personal biases and keep them in check. They actually work with other judicial collegues to discuss wether these personal experiences re interfereing with his or her ability to fairly judge a situation. Additionally, I have practiced in front of inept judicial officers that do not even know they have a personal bias. With all of my interest based training, I find it extremely frustrating to take a family through a traditional litigation, meaning there is never any interest based discussion during the case. It is hard because the outcome is not designed specifically for the facts of the family that is divorcing.” [emphasis added]

I don't believe that there are ANY people, much less judges, who don't have biases. However, judges pledge to, and I believe in the vast majority of cases, actually do set aside their own personal experiences and biases, and they apply the law to the evidence actually admitted before them. I think problems arise in the perception of the fairness of the judgments because the ACTUAL EVIDENCE is often different from what one party says or thinks were the facts. When we hear about what sound like lop-sided family law judgments, I sincerely believe it is, most often, because we don't hear and see the ACTUAL EVIDENCE presented by BOTH SIDES in court. The parties who are telling what happened are the most biased participants of all!

That said, however, I do agree that in mediation and collaborative divorce, the parties have much more ability to control the outcome; they can take into consideration things that courts cannot; and they can agree to things that courts cannot order (e.g. paying for college expenses - not allowed under Florida law unless the parties agree).” [emphasis added]

I don't think family law judges are any more biased than judges in other areas of the law. You can't expect family law judges to have a blank mind when they take the bench. Most judges are "hired" (elected) we like to hope, for their experience in family law. Most attorneys I know have represented both petitioners and respondents in family court matters. Additionally, in NY, as far as child support, the award is usually right where it should be, at 17% of income. There is little discretion. The only bias is if a judge has some actual conflict in which case he/she should recuse him/herself.” [emphasis added]

I replied to this last comment as follows:

"In California the judges are not 'hired' (elected) for their experience in family law. In fact, I received an email from a retired judicial officer on just this issue: 'We don't provide enough training for family law judges, and we certainly don't require that training before undertaking a family law judicial assignment. Most judges still don't want to do family law. Most judges have no family law experience, for openers. And a family law assignment is a lot more work than most judicial assignments. A lot more. And many judges aren't comfortable with the different way that emotions play out in family law cases than in, say, civil cases--though my own experience was that civil litigants and their lawyers were often just as angry as family law litigants....'

It is true that we can find judicial officers who do know family law and who care about families. However, that does not eliminate the "bias" issue.

I would like to give you an example of what I mean by judicial 'bias.' In California, the DissoMaster program is designed in such a way that it determines "guideline" child support. Assuming that everyone who uses DissoMaster imputes that same data in the same categories of the program, we will all come up with the identical "guideline" child support. The big assumption is that we are all imputing the same data and in the same categories of the program. In other words, as with any other program, DissoMaster is only as good as the end user -- it is all relative.

Let's discuss the discretion the judges have in California. For example, the Court has the discretion not to apply the guideline child support calculation if the parent paying the support is an extraordinarily high income earner. However, what constitutes an extraordinarily high income earner varies significantly from courtroom to courtroom. When I researched this issue for a case many years ago, I found that the definition varied from a starting annual income of $500,000.00 to $1,500,000.00 (AT THE SAME COURTHOUSE IN LOS ANGELES). Thus, the same exact person will obtain a very different result, depending upon which judicial officer were to hear such a case. Another example has to do with imputation of income. Judges have a great deal of discretion in this regard - at least in California. Here, the only time a judge would not have significant discretion is when both parties work full-time as W-2 income earners and not for a business that is owned by the party or their family. Furthermore, the parties would have to both have approximately the same amount of investment income, otherwise the judge's discretion might impact someone differently from courtroom to courtroom. Another factor here is the manner in which the timeshare is calculated. The judges can compute timeshare in many different ways. Since guideline child support is based in part on the timeshare, the judges can alter that figure for their particular "bias" by merely playing with the percentage timeshare (how they calculate that percentage)." [emphasis added]

Some non-family law attorneys also participated in the discussion and made the following comments:

The fact that judges, like all human beings, have opinions makes it improbable that they wouldn't have biases. The difference between a great judge and one who is not so great is that the great judge doesn't act on his or her personal biases - either for or against a particular client or for or against a particular attorney...." [emphasis added]

“I think this argument proves too much. Every judge is, over time, likely to be in an automobile accident or have a family member involved in one. Therefore, it's a bad idea to have judges decide auto accident cases? I don't believe that this bias occurs any more in family law cases than in any other. Certainly, as an advocate we want to get an expert who is likely to do well for our client. I do think there's some advantage in family law court to have neutral experts appointed by the court. Obviously, collaborative law with neutral experts presents the same advantages as court-appointed neutrals…. Clearly, a process that gives the parties more control, and somewhat unpredictable and hard to understand judicial officers less control, is better in the long run for the parties involved. We both agree on that point.” [emphasis added]

While I agree with what you are saying Mark, the same is true of civil litigation, estate litigation, elder law issues, etc.. It's hard to imaging a judge who has not bought a house and not had some issues (real property lit), or has an elderly parent or spouse whose been unfairly or mis-treated, or has been through some form of estate planning himself or been on the receiving end of some type of benefit from a will or trust.

For the most part, I feel that the trials I've been through that the judges have for the most part been able to set their biases down. On the other hand, there have been one or two where I definitely think they didn't either. That's one of the many things that makes all of us valuable to our clients (I hope) ;)” [emphasis added]

In response to the comparison between family law and other areas of law, I commented as follows: "I respectfully disagree with your comparison of family law and other fields of law. In other areas of practice, there are issues of liability -- causation and physical damage, etc.. Family law is no-fault in every state at this point. Therefore, the fact that the "bias" of the judicial officer impacts the results is completely different." [emphasis added]

The reality as I see it is that good lawyering in Family Law (at least in California) is not what people think. For obvious reasons, the results in court are very much determined by the "experts" used in the case. Great effort is spent by lawyers in trying to find an "expert" who will be biased in his/her client's favor. That "expert" might be a child custody evaluator, an "appraiser" (who is nothing less than a "gun for hire" - retained on the condition that they do anything necessary to make the value as high or as low as possible - depending upon the needs of the situation), or any other "expert" required in the case. If you happen to have the case before a judicial officer who is "biased" in your client's favor, the outcome is almost certain before going to trial. It would take an inept attorney to botch up such a "well prepared" case. In other words, the most effective family law litigators are those who are best able to take advantage of the inherent flaws in the system for the benefit of their clients. Anywhere outside of the legal arena, people who do what these lawyers do would be considered con artists.

People have the right to opt to resolve their family law matter through mediation or collaborative divorce. If they cannot agree to what is considered "alternative dispute resolution" in the United States, then I am afraid they get the default - which is the litigation (court) system. If the "general public" wants to continue subjecting themselves and their families to the litigation (court) process, then I say "buyer beware."

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