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February 02, 2022 From the Editor in Chief

From the Editor in Chief | Winter 2022

Winter 2022

Kathleen A. Hogan

Almost twenty years ago, the Family Advocate produced what was then a cutting-edge issue on Gender Bias. Looking back at that issue with 20/20 hindsight, it is not hard to suggest that we were really only examining the tip of an iceberg. A popular advertising tag line from that time was “We’ve come a long way, Baby!” In some respects, that’s true. I am not imagining that we have eliminated bias from our laws, judicial proceedings, or viewpoints. However, we have come to recognize more of the components of that bias iceberg. Our hope is that by identifying and examining the problems, we can educate ourselves and our colleagues in ways that lead to solutions.

Citing recent legal and social research, Mark B. Baer defines different types of biases and how prevalent they are in the legal realm in his article, “Unchecked Biases in Family Law Are Pervasive and Harmful.“ He explains that because unchecked biases inherently color, and therefore cloud, our reasoning, they can impair judgement. He points to public policy, statutes, case law, and judicial decisions as all being subject to biases. He then offers ways, rooted in scientific research, that all people, especially attorneys, can “debias” or challenge their own biases and those of their clients, opposing parties, witnesses, and presiding judges.

The problem of gender bias we first discussed so many years ago has been reexamined in an article by Gia M. Conti and Cora Gennerman called “Gender Bias in Family Law.” Because not all states have statutes that expressly prohibit gender discrimination when taking into account what is in the best interest of a child in a custody case, creating more procedural requirements for the court-appointed “neutrals” in a case, such as a guardian ad litem or parenting coordinator, can help mitigate gender bias, say Conti and Gennerman. The authors describe specific actions family law attorneys can take if they believe gender bias is negatively affecting their case.

Geri C. Sjoquist, in her article “Bias Toward the Disabled,” illustrates, through difficult to read real-life examples, that, despite an array of federal protections, disabled parents are at a much higher risk of losing custody of their children than abled parents, due in part to a lack of understanding about their ability to parent. Unconscious bias, says Sjoquist, unfairly impedes disabled people from adopting or being adopted. She says educating others at all levels of the court system is the antidote.

In her article “Sexual Orientation and Gender Identity Bias,” Elizabeth F. Schwartz notes how the 2020 U.S. Supreme Court decision Bostock v. Clayton County prohibits sexual orientation and gender identity discrimination in employment but leaves members of the LGBTQ+ community vulnerable to discrimination in other areas such as housing, public accommodations, and lending. She challenges family lawyers to educate themselves so they can competently navigate the nascent legal landscape surrounding LGBTQ+ divorce, family planning, gender transition documentation, estate planning, end-of-life issues, and more. She also points out that taking the time to honor the language people use to affirm themselves is a first step in challenging our own biases.

In their article, “When Faith Defines, and Divides, Family: Lessons for Avoiding Bias in Family Court Decisions,” Robin Fretwell Wilson, Aylin Cakan, Marie-Joe Noon, Marlus Reque Jr., and Rebecca Valek illustrate where the constitutional right to religious liberty can be tested during the dissolution of an interfaith marriage. They give several examples of religious liberty cases pertaining to child custody and note that claims of a parent’s religious practice harming a child must be backed up with evidence or else religious bias may be at play.

The Hon. George Phelan, Annelise Araujo, and Donald G. Tye have written an article called “Immigration Bias in Family Law Practice.” The authors acknowledge the bias based on a person’s immigration status and then focus on a more insidious type of prejudice against immigrants rooted in ignorance that pervades the immigration court system, from the counsel lawyers give immigration clients, judicial rulings, and even administrative operations of the court, such as translating documents.

Turning to yet another group vulnerable to potentially devastating effects of bias, the article “Ageism and Bias in Family Law” by Tristan Sullivan-Wilson and Deirdre Lok discusses how ageist views are linked to poorer health outcomes and age-based health inequities and lead to the devaluation, exclusion, and isolation of older adults that increase the risk of elder abuse. Like all forms of bias, the key to combatting it, say the authors, is education about the need to provide accessibility and other accommodations to meet the needs of older adults in family court and throughout the court system.

In “Socioeconomic Bias in Family Court,” by Susan J. S. Abramowich, the author explains that a client’s socioeconomic status—largely measured by education, income, and occupation—may be less visible than some other attributes that elicit bias and discrimination but that the family court system treats the person differently because of it nonetheless. She urges working to achieve equal access to services in our courts for indigent and low-income litigants before we can attain equal access to justice for all.

Solangel Maldonado and Jonathan Ross have provided an article called “Biased Custody Decisions or Common Sense: When Are Race, Ethnicity, and Cultural Norms Relevant to a Child’s Best Interests?” They discuss the delicate balance the court must achieve in a custody case when considering what role a parent’s or child’s racial, ethnic, and cultural background, immigration status, and language play in the life of the child. They note that these considerations may be pertinent to a child’s best interests in some cases, but in others can be the product of bias. They offer resources for overcoming implicit bias and ways the court can mitigate it, such as appointing cultural experts when the judge and parents are of different racial, ethnic, or cultural backgrounds.

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Kathleen A. Hogan is a principal with Hogan Omidi, PC, in Denver, Colorado, and Editor in Chief of Family Advocate.