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

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 fit 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 backgrounds 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—considerations that may be based on racial, ethnic, or cultural biases. These 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 differences may be more likely to make decisions influenced by implicit biases than judges who address these differences. Although we are unlikely to completely eliminate our biases, researchers have developed a number of techniques that may help to reduce their effects in custody decisions.

Unconscious Bias

The 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 problems quickly and efficiently. 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 exceptional aptitude in mathematics. Although we recognize that not all members of a group fit into these categorical assumptions, these implicit associations can influence our attitudes towards members of different groups.

Studies have shown that the majority of Americans, including trial court judges, have implicit biases—unconscious stereotypical associations—toward different groups. Theses biases may affect decisions in the courtroom. Indeed, studies have found that implicit biases may affect immigration, 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.

The Risk of Bias in Custody Decisions

Some courts and legal scholars have interpreted the Supreme Court’s decision in Palmore v. Sidoti, 466 U.S. 429 (1984), to prohibit consideration of a parent’s racial, ethnic, or cultural background when allocating custodial responsibility. Others, however, have concluded that these are permissible considerations when assessing a parent’s ability to expose a child of multiple races, ethnicities, or cultures to the racial, ethnic, or cultural background of the minority parent. At least one court has expressly held that the Fourteenth Amendment’s Equal Protection Clause does not prohibit consideration of a parent’s race when assessing their ability to expose the child to their racial or ethnic heritage so long as it is not the only reason for the decision. In re Marriage of Gambla & Woodson, 853 N.E.2d 847 (Ill. App. Ct. 2006).

The challenge for judges is determining how much weight to accord to these factors. In Jones v. Jones, 542 N.W.2d 119 (S.D. 1996), the court awarded custody to a Native American father, a recovering alcoholic who had a history of violent behavior towards his wife and displayed “a somewhat casual indifference to the children,” because he “showed a sensitivity to the need for his children to be exposed to their ethnic heritage” and was better able than the white mother to expose the children to their culture and heritage. Is a parent’s ability to expose the child to their heritage more important than protecting the child from psychological harm that may result from exposure to domestic violence?

On the other hand, a court that ignores a parent’s racial, ethnic, or cultural heritage risks assessing the parent’s abilities through a myopic lens that favors white middle-class parenting norms. For example, in Gambla, custody evaluators determined that the mother’s results on a personality test showed “impulsiveness, difficulty with authority, and limited frustration tolerance.” 853 N.E.2d at 851. The mother’s experts challenged this assessment by explaining that African American women are stereotyped as angry and that their expressions and behaviors are often interpreted through this stereotypical lens. The court would not have been able to fairly assess the results of the personality test had it not considered the impact of racial stereotypes on custody evaluations. The court did not stop there, however. It not only considered race when evaluating the results of the personality test but used race as a tiebreaker when the other best interest factors favored both parents (the African American mother and the Caucasian father) equally. Is consideration of race as a tiebreaker appropriate? Based on the facts of Gambla, it probably was, as the mother’s testimony demonstrated that she had given some thought to how she would help her mixed-race daughter develop a healthy racial identity, but the father never addressed this issue. Other cases, such as Jones, however, may be more complicated and troubling.

Courts’ explicit consideration of race, ethnicity, and culture, as in Gambla and Jones, allow us to see how these factors influence the outcome in a particular case and to explore different (and possibly better) approaches. When these considerations are implicit, however, biases are more difficult to combat as judges may genuinely believe they are impartial. For example, in Tipton v. Aaron, 185 S.W.3d 142 (Ark. Ct. App. 2004), the trial judge heard from four witnesses who expressed opposition to interracial marriage before he awarded custody of a white child to the father because the mother had married a biracial man and, in the judge’s view, living in an interracial home would “create problems” for a white child. Despite this evidence of bias, the judge insisted that the mother’s interracial relationship did not impact the decision to award the father custody.

While it is often difficult to prove that a decision was tainted by racial bias, ethnic and cultural biases may be even more difficult to address. Judges who have prohibited parents from speaking Spanish in the home because, in their view, doing so would relegate the child “to the position of a housemaid,” have defended their decisions as necessary for the child’s best interest. Sam Howe Verhovek, Mother Scolded by Judge for Speaking Spanish, N.Y. Times, Aug. 30, 1995, at A12; see also S.Y. v. Superior Court, 240 Cal. Rptr. 3d 137 (2018). Courts have also rejected claims of cultural bias against parents of Middle Eastern descent. In Shady v. Shady, 858 N.E.2d 128 (Ind. Ct. App. 2007), the appellate court rejected the father’s allegations of cultural bias even though the trial court assumed, without any evidence, that a parent of Middle Eastern descent was likely to abscond with the child. Similarly, in Schultz v. Elremmash, 615 So. 2d 396 (La. Ct. App. 1993), the appellate court rejected claims of cultural bias, even as it remarked that the father, who was Muslim and a Libyan national, appeared “to be extremely critical of American ways,” and wanted the child “to be raised in a very restricted manner.” It concluded that, in contrast to the father, the child’s mother wanted the child “to experience life in a carefree manner,” and thus had the “child’s best interest at heart.” The court cited the father’s wish to raise the child in the Muslim religion and his refusal to allow the child to participate in the school’s Nativity performance as part of the Christmas pageant as examples of this restrictive (and, in the court’s view, undesirable) upbringing.

Although not a custody case, the majority opinion in Adoptive Couple v. Baby Girl, 570 U.S. 637 (2013), illustrates how cultural biases may influence a court’s interpretation of the law, facts, and arguments. The majority’s assertion that the Cherokee father seeking to prevent his daughter’s adoption by a non–Native American family was playing the “ICWA trump card” demonstrates its disapproval of the Indian Child Welfare Act’s (ICWA), 25 U.S.C. §§ 1901 et seq., mandate that tribal children be raised in homes that “reflect the unique values of Indian culture.” Id. § 1902. Moreover, the majority’s repeated references to the child’s quantum of Cherokee blood (3/256th), and insinuation that she was not sufficiently Cherokee, illustrate the Court’s erroneous assumptions about what it means to be Native American. In addition, the majority never considered how the child would be exposed to her Cherokee heritage if raised in a home that did not “reflect the unique values of Indian culture,” as ICWA requires.

Few cases illustrate the role of cultural biases and the preference for middle-class white norms as well as In re Adoption of A.M.H., 215 S.W.3d 793 (Tenn. 2007). The Chinese parents came to the United States on a student visa but finding themselves in dire financial circumstances, placed their four-week-old daughter in the care of a white family temporarily so she could obtain health insurance. When they sought return of their daughter six months later, the white foster parents refused. The child was finally returned to her Chinese parents after a seven-year custody battle in which the guardian ad litem recommended against returning the child to the parents because they planned to return to China and the GAL worried about the “kind of life” a girl would have in China. After rejecting the testimony of the parents’ Chinese culture expert and excluding the testimony of the psychologist who evaluated the parents based on Chinese cultural norms, the trial court concluded that the mortality rate for infant girls in China was 50 percent—a ridiculous assertion—and adopted the recommendations of a psychologist who had never seen the parents and the child together. The trial court added that the parents were “manipulative and dishonest people who appeared to have no intent to raise [the child] but have used the child from birth for financial gain and to avoid deportation.” There was no evidence, however, that the parents wished to remain in the United States. Although the trial court’s decision was reversed on appeal, the trial court never acknowledged that its cultural (and possibly racial and ethnic) biases influenced its decision to award the white foster parents custody.

Other courts have applied middle-class parenting norms when deciding custody. While these norms may appear to be racially and culturally neutral, they serve to penalize racial, ethnic, and cultural minorities. To illustrate, in Rico v. Rodriguez, 120 P.3d 812 (Nev. 2005), an undocumented Mexican woman crossed the border into the United States with her two children. The children’s nonmarital father, a legal permanent resident living in Washington with his wife, sought custody, which the trial court granted, in part, because of the mother’s undocumented status. The court was also persuaded by the social worker’s concern that the children had lived primarily with their maternal grandmother while in Mexico and that since arriving in the United States, the mother had required the eleven-year-old child to provide care for her younger brother. The social worker also expressed concern that the mother and the children were living in a three-bedroom home with five other people and that the mother, due to financial constraints, had not addressed the younger child’s speech impediment or provided him with formal schooling while in Mexico. The court’s decision reflects white, middle-class norms and fails to recognize that racial and ethnic minorities are less likely to raise their children in accordance with these norms. It is not uncommon for children of Asian or Latinx descent to provide, or be expected to provide, significant care for younger siblings, especially in low-income families. It is also not uncommon for African American, Asian American, Latinx, or Native American children to live with grandparents or other extended family members. The norm that children will always be raised primarily by their parents is not universal. Finally, the court’s concerns about eight people living in a three-bedroom home reflects a predominantly white middle-class norm that values privacy above other needs, and in which parents and children do not share homes with other people. Yet, as Justice Brennan observed in his concurrence in Moore v. City of East Cleveland, 431 U.S. 494 (1977), this is not the norm for poor and minority families, which are more likely to live with extended family members or fictive kin.

While courts must take care not to base custody decisions on white middle-class norms that may disparately affect racial, ethnic, and cultural minorities, courts should consider parental conduct that clearly places the child at risk of physical, mental, or emotional harm. For example, given the overwhelming evidence that corporal punishment is not in a child’s best interests, all other factors being equal, it might be appropriate to consider a parent’s use of corporal punishment when allocating custodial responsibility. A court, however, should acknowledge that use of corporal punishment varies by race and socioeconomic status and take measures to ensure that race and class biases do not cloud its assessment of the child’s best interests. A court might also consider whether a parent expresses views that place a child at risk of harm even if those views are based on cultural or religious norms. For example, in Roberts v. Roberts, 586 S.E.2d 290 (Va. Ct. App. 2003), the father threatened and inflicted corporal punishment on the children and told the daughter “that women should not strive to accomplish what men accomplish and women should be subservient to men.” Id. at 294. A clinical psychologist testified that the children were distressed by the father’s conduct and were at risk of psychological harm. The court of appeals upheld the trial court’s termination of the father’s in-person visitation, even though the father’s conduct was based on religious beliefs, because the father’s conduct placed the children at risk of harm.

Combating Implicit Bias

While this article has focused on how race, ethnicity, and culture influence judges, other legal actors—lawyers, custody evaluators, and guardians ad litem—are subject to the same biases. We all have a responsibility to learn how our biases influence outcomes and to educate each other about the childrearing approaches practiced by parents of different racial, ethnic, and cultural backgrounds. For example, middle-class white parents often encourage their children to ask questions and challenge authority (respectfully of course). African American and Latinx parents, however, discourage their children from challenging authority as this might land them in prison or get them killed. (Despite making up 13 percent of the teen population, Black teens were almost twice as likely to be killed by police as compared to their white counterparts.) While studies suggest that encouraging children to ask questions and challenge authority may foster analytical and leadership skills, this parenting approach is risky for racial and ethnic minorities as whites may interpret questioning and assertiveness by a child of color as defiant. Parents of African American children instead focus on teaching their children survival skills—having “the talk”—to prepare them to deal with the discrimination they will likely experience at school, in public spaces, and in interactions with the police.

As Professor Katharine Bartlett has argued, the best interests standard “invites bias of all types.” Custody decisions may be particularly susceptible to judges’ feelings about the litigants, and implicit biases about the parent’s race, ethnicity, or culture may influence the court’s assessment of a parent’s behaviors and attitudes. While it is difficult to eliminate our biases, we can minimize their effect on custody decisions. First, we must uncover and acknowledge our biases so we can address them. Studies have found that we are able to override our implicit biases when we are made aware of them and are motivated to be impartial. The Implicit Association Test (IAT) is one of the best tools available to help us uncover our biases. Taking the IAT repeatedly reminds us that reducing our biases takes daily effort—we cannot just read a book or participate in a diversity training and expect that our biases will disappear.

We should also participate in training programs that will help improve our ability to recognize when our reactions to a person or set of facts are based on stereotypical assumptions and practice strategies that may disrupt these associations. When we are in a situation in which our reactions are influenced by stereotypes, we should stop and analyze the reasons for our reaction and consider how we can avoid such a reaction. Another mechanism that might be useful is counterstereotypic imaging—thinking of examples that prove the inaccuracy of the stereotype. For example, a judge who is inclined to assume that an African American father who has fallen behind on child support payments is a “deadbeat” may benefit from recalling depictions of responsible, nurturing African American fathers such as Andre “Dre” from the television series Blackish.

Other strategies that might help reduce implicit biases include individuation and perspective-taking. Individuation requires that legal actors evaluate a parent based on their individual attributes and conduct, not on stereotypes about African American women (as we saw in Gambla), Middle Eastern fathers (as we saw in Shady), or middle-class assumptions about the ideal home for a child (as we saw in Rico). Perspective-taking requires that the actor assume the perspective of the parent who is the subject of negative stereotyping. It allows the actor to better understand the challenges that individual parent is facing and helps the actor to assess the parent as an individual.

Unfortunately, the long-term effects of these interventions on our implicit biases may be limited and require further research. The good news is that we can prevent our implicit biases from influencing our decisions (even if we do not eliminate our biased thoughts) by adopting “checks” to compensate for our unconscious biases. Studies have found that physicians and police officers who were aware of their implicit biases and were motivated to control them did not act in accordance with their biases. Legal actors can do the same. Implicit biases negatively impact recollection, so we should take careful notes when interviewing a client or witness and as a case progresses. We can reduce the risk of biased assessments by carefully reviewing transcripts and other materials before making recommendations or decisions. Judges should appoint cultural experts when the judge and parents are of different racial, ethnic, or cultural backgrounds. Legal actors should ask themselves whether they would come to the same conclusion if the parent was of a different race, ethnicity, or culture and ask this question for each of the best interest factors they consider.

All of these strategies take effort and require that legal actors slow down and make deliberate assessments, which have been shown to be less likely to be biased than our intuitive judgments. They also require that decision-makers reduce stress, negative emotions, and other distractions that tax the cognitive resources necessary to make unbiased decisions. The literature on mindfulness meditation suggests that it might help us achieve the focus we need to reach fairer decisions.

For a more in-depth discussion of the topics discussed in this article, see Solangel Maldonado, Bias in the Family: Race and Culture in Custody Disputes, 55 Fam. Ct. Rev. 213 (2017), https://onlinelibrary.wiley.com/doi/abs/10.1111/fcre.12274.