Socioeconomic Bias in Family Court

As a baseline, we must acknowledge that implicit biases exist in every participant involved in a family court case from the individual litigants to the witnesses to the attorneys, court staff, judicial officers, and judges. The ABA Model Code of Judicial Conduct, Rule 2.3(B) states:

A judge shall not, in the performance of judicial duties, by words or conduct manifest bias or prejudice, or engage in harassment, including but not limited to bias, prejudice, or harassment based upon race, sex, gender, religion, national origin, ethnicity, disability, age, sexual orientation, marital status, socioeconomic status, or political affiliation, and shall not permit court staff, court officials, or others subject to the judge’s direction and control to do so. [Emphasis added.]

Socioeconomic status is defined by the American Psychological Association as the social standing or class of an individual or group. It is often measured as a combination of education, income, and occupation. In reality, socioeconomic bias is more abstract and subtle than other forms of bias, such as racial bias, gender bias, or bias against specific religions or cultures. Socioeconomic status, while not a protected class, does, however, have a real effect on family law litigation. While judges may not allow the aforementioned biases to affect their rulings, there is often a disparate impact to indigent family law litigants as a result of their limited resources and socioeconomic status. This article will focus on how litigants with lower socioeconomic and educational status often experience an abbreviated analysis of the issues in their cases because many family courts do not employ the tools available and necessary due to the litigant’s inability to pay.

All too often, families with lower socioeconomic or educational status are not provided the same tools to access and aid in the decision-making process of the judge. The result is rulings being made without all of the necessary and vital information that may be available and accessible in other cases—often involving the same issues—involving litigants of greater socioeconomic status. This is frustrating—and oftentimes detrimental—to the litigant families whom the courts aim to serve, to the attorneys who represent them, and to the judges themselves.

In addition to the testimony and evidence provided by witnesses in a family law matter, judges rely upon many tools to guide their decisions and reach the best possible result for each family. Family law matters and forensic social sciences necessarily intersect as the issues at the heart of the family law case are so often intertwined in intimate, psychological matters. This arsenal of tools used in family law litigation may include custody evaluations, psychological evaluations, parental capacity evaluations, reunification counseling, co-parenting counseling, supervised visitation, trauma therapy, and therapeutic visitation. Nearly every family appearing before family court could benefit from some of these services. Indeed, in some families, there is a dire need of significant educational and psychological resources in order to move in the direction of a functional relationship that will serve the best interests of the children. If such services and resources are needed, these resources are available. However, these services are often inaccessible to those most in need due to their socioeconomic status.

These vital services and resources are largely only available to those parties and individuals that are able to afford to pay for them out of pocket as they are usually not covered by any external funding sources or insurance plans. The cost of these services can be in the thousands of dollars. Some court-contracted evaluators do provide a limited number of pro bono referrals as part of their agreement with the court, but the need far exceeds the available resources.

Even if these evaluative and supportive services are offered on a sliding scale, many parties appearing before the court are unable to pay any amount. Often, these are families struggling to make ends meet, put food on their tables, and arrange for childcare and transportation. Many of these litigants are accessing free civil legal services (meaning they are generally at or below the federal poverty guidelines) or are presenting to the court as self-represented litigants. The net result is that families who are unable to pay for these valuable and necessary resources, due to their socioeconomic status, face having their cases decided without the very information that could be crucial to informed judicial decisions.

During a recent discussion of this very issue, one judge expressed that they had requested a transfer from family division due to the lack of information regarding the very important matters upon which they were ruling in many cases, which was essentially done without any input from neutral third parties, such as the psychological experts. This caused a lack of confidence in sound decision-making, as was recognized by this judge, who did not wish to continue adjudicating in the family division. Undoubtedly, many other judges share this concern—and rightfully so.

In a recent case of mine, an indigent client was ordered to undergo a psychological evaluation at her own expense. When the court was asked to reconsider, as she was an indigent litigant, eligible for legal services representation, the court then ordered her to undergo a substance abuse evaluation, even though no allegations of substance abuse were ever alleged or suspected. The court took this action due to the availability of a free program for this specific service. Understandably, the court was grasping at straws, yearning for more information regarding this litigant in order to competently render a decision that served the best interests of the children. However, the court and my client were unable to access the very tool it deemed most helpful in this endeavor, settling for an irrelevant but financially accessible alternative. Had this litigant been able to pay, a psychological evaluation would have been performed, perhaps offering the court insights into the party and the case, and hopefully aiding in a just and fair resolution of the matter at hand.

Another way litigants of a “lower” socioeconomic status are denied full and fair access to the judicial system is through the appellate process. Many legal services agencies limit representation to the trial court level. Persons of a lower socioeconomic class frequently do not have the resources or knowledge to appeal decisions to a higher court due to an inability to pay or the technical knowledge to correctly file and pursue an appeal on their own.

A final example presented here is the inability of litigants with lower socioeconomic status to utilize alternative dispute resolution techniques, often available to litigants with the financial means, such as professional mediators, the collaborative process, the use of “neutrals,” and other less traumatic and nonadversarial resolution strategies. These strategies have been proven effective but are largely inaccessible unless the participants have the ability to pay for them.

When an entire class of litigants is denied the essential tools needed to inform judicial decision-making or access the courts, based upon their socioeconomic status, can we actually say that we have equal access to justice in our courts? The answer must be a hard no.

While this issue may only most directly affect the litigants unable to pay for these resources, even family law practitioners with clients who do have the ability to pay have an interest in the resolution of this matter. When issues within a family unit are not satisfactorily resolved, those families continue to come into the court system seeking assistance in the form of repeated motions and requests for hearings, thus clogging our already-overwhelmed judiciary. If issues were resolved when first presented by the referral to appropriate services and resources, and based upon evidence from experts and the provision of those necessary services, litigants would be less inclined to continue to repeatedly seek court intervention and involvement. Judicial economy would be served, and cases would be handled with greater efficacy and understanding.

Socioeconomic bias and the lack of access to justice are not highlighted here to attribute fault to the system and its participants. Rather, it is examined to raise awareness in hopes that this iniquity may be addressed.

In my jurisdiction, a nonprofit was recently formed to assist with this very issue. The Shortest Line was founded on the premise that the most efficient way to get from point A to point B is “the shortest line.” When a family presents with an issue (or issues, most likely), the best way to get to a fair and just conclusion is by providing the services necessary to reach that end, regardless of the litigants’ ability to pay. The mission of The Shortest Line is to provide funding to pay for court-ordered evaluations and services so that indigent or low-income families can be given a path forward, and the best interest of the child can be served. Efficient handling of cases not only results in greater judicial economy but has also been shown to be in the best interest of the child.

The Shortest Line was founded by private attorneys with a heart for public service, legal services attorneys, social service experts and professionals, and concerned community members, all working together with the same goal in mind—to address the very real justice gap that exists in family court due to the lack of financial resources of low-income and indigent litigants. The organization has been locally embraced by the judicial community and the private bar. The Shortest Line aims to provide the financial resources necessary to fund court-ordered psychological examinations and other paramount services in complex and/or high-conflict custody cases for indigent families.

Referrals to The Shortest Line come directly from the family law judges—either on their motion or via request from an attorney or litigant. When the court refers cases involving indigent litigants for financial assistance with court-ordered evaluations and/or services, a subcommittee evaluates each case to determine and prioritize payment for the court-ordered evaluations and services. This committee consists of individuals from the legal, medical, psychological, and educational communities. Each referred case is evaluated using a “triage” approach, balancing the severity of need with the availability of program funds.

Prior to the formation of The Shortest Line, there simply were no resources or sources of funding for this targeted population. As stated previously, there is no line of individuals or entities that are involved in funding these critical services. Through the generous funding of county and federal grants, as well as corporate and individual donors, it is the long-term vision of The Shortest Line that no psychological evaluation or court-involved service, deemed critical by the judges in our local Family Division, goes unfunded.

Family law professionals not only need to be aware of the issue of socioeconomic bias, but should take steps to directly address it. The time is now to step up and assure equal access to services in our courts for indigent and low-income litigants. Only by providing the same services to all families can we begin to claim equal justice under the law.

How to Address Socioeconomic Bias in Family Court Settings

1. Awareness. Implicit biases exist, and always will. Acknowledging and recognizing this fact, as well as examining your own biases on an ongoing basis, is necessary to prevent implicit biases from affecting your litigation of a matter.
2. Training. Learn about your implicit biases and strive to make efforts to overcome them.
3. Fairness. Access to justice and the resources necessary for sound judicial decisions must be made available to all. Judges and attorneys must strive to assure all litigants have an equal opportunity to utilize the full spectrum of services and evaluations.
4. Empathy. Understand poverty law and the barriers posed due to socioeconomic status as well as those encountered by self-represented litigants.
5. Reflection. Avoid snap judgments, which are more likely to be influenced by implicit biases.
6. Thinking “outside the box” to find solutions. Engage the court and bar to find ways to resolve the disparity in access to justice and resources available to indigent and self-represented litigants, and promote organizational changes and improvements.