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January 01, 2019 Judicial Ethics

The Role of the Judge in Children’s Matters

By Marla N. Greenstein

Afundamental concept underlying judicial ethics is the idea that the judge is an impartial decision-maker. Rule 2.2 of the 2007 ABA Model Code of Judicial Conduct requires judges to “perform all duties of judicial office fairly and impartially.” The Code of Judicial Conduct relies on concepts inherent in our adversarial system to ensure an even playing field for parties in a dispute. Over time, with an increase in pro se litigants, the development of therapeutic courts, and an expanding caseload, judges preside over matters where there are not merely “opposing” sides. Where there are not clear legal issues and articulated opposing views, judges must navigate the ethics around their proper role in the proceeding. Matters involving children pose some of these special issues.

Articles in this Judges’ Journal highlight many of these tensions for the judge. “Ten Tips for How Judges Can More Effectively Communicate with Children in Court” suggests ways for judges to ensure that children who are questioned in court understand the questions. But even before a judge gets to that point, a judge often must decide whether it is useful to have a child give testimony and whether that testimony is in an adversarial setting or in chambers. Family matters often bring with them questions of parenting styles, religious practices, and child safety issues (such as those raised in the Nuzum/Pierson article). All of these can trigger personal responses from a judge based on his or her own actions in raising children or how the judge him- or herself was raised. Where the legal standard attempts to address factors that can establish the “best interest of the child,” law training is of little help. The Atkinson article identifies the advantages of evolving tribal law to assist determining the “best interest of the child” in Native American families.

Because matters involving children have high emotional content, judges also must confront that reality. Impartial decision-making for a judge requires the disciplined evaluation of factual information while acknowledging the emotional realities. In determining the best interest of the child, judges often label parents by their traits, leading to the impression that the judge was not fair to them. Those of us who work with judicial disciplinary bodies note that one of the largest categories of complaints filed by the public surrounds judicial comments in determining the best interest of the child. While not necessarily creating an ethical issue, there is an art to making findings that will be heard by parents as fair and impartial. Judges have been disciplined for labeling parents as “immoral” or expressing anger and condescension in family hearings.

Judges must walk this figurative tightrope with care and sensitivity. At times judges can refer to court-directed reports from custody investigators or other professionals. But ultimately, it is the judge who must determine what actions are in the best interest of the child and communicate these findings with directness and sensitivity. Each judge must develop his or her own style of communication that will convey concern for the child in a way that all will hear as fair and impartial.

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Marla N. Greenstein

Marla N. Greenstein is the executive director of the Alaska Commission on Judicial Conduct. She is also a former chair of the ABA Judicial Division’s Lawyers Conference. She can be reached at [email protected].