Racism a problem in your child-custody case?
When I saw Chimamanda Ngozi Adichie’s TED speech, The danger of a single story, it brought back memories of a divorce case here in Chicago that I dealt with last year. Maybe if the people involved in the case had seen this video, they would have been more aware of the need to keep their biases in check..
Is racism real?
Before, whenever people asked me if ethnicity mattered in the outcome of a legal proceeding, my answer was “not at all.” I now say, “It depends… especially if it is a child-custody case.”
For example, Louis C.K. is a Mexican immigrant. But if I were representing him in a divorce, I would not be concerned that his ethnicity would affect the outcome of the case. This is because Louis is a white red-head with no accent and, therefore, not perceived to be “like” a Mexican. Thus, he would never run the risk of being negatively stereotyped.
But what if you fulfill some of the stereotypes against you?
What if you are poor but your child’s parent is wealthy? What if you graduated from an unknown college but your child’s parent has a Ph.D. from Oxford? What if you are brown but your child’s parent is white?
In that situation, I feel that a fair outcome is dependent on whether the judge and the other people involved in the case are able to maintain objectivity.
Most people believe they are unbiased. However, we all have our biases and stereotypes. It’s part of being human. Keeping biases and stereotypes in check is among the things that differentiate a good judge from a bad judge.
Last year I had a case where the judge, the children’s representative, the custody evaluator, and opposing counsel repeatedly voiced concerns over my African client having custody of her children due to her “cultural problem.” No specifics were given about how her specific African culture created a problem in the raising of children. I got the feeling that this so-called cultural problem was reflective of a deep repulsion toward Africans and, possibly, people from poorer countries.
After the case was settled, I asked the judge, opposing counsel, and the children’s representative what was better about the husband’s European culture than the wife’s African culture. The judge just stared at me, offered no explanation, and reiterated her position that my client had “a cultural problem.” I said, “you better tell me exactly what the problem is because otherwise ‘cultural problem’ sounds a lot like code for ‘African’.” After some awkward silence, the children’s representative answered for the judge, “at least [the European country] is a first world country and the father has a Ph.D.”
I turned to the judge and stared at her, in the expectation that she would reject the statement. I stared for a long time. She never rejected the statement. In fact, she seemed to embrace it.
Despite my years of experience as a divorce lawyer in Chicago, I never ever thought that a judge in the 21st century would base their custody decision on someone’s class, race, or ethnicity. Sadly, I was wrong. I was right, though, on settling the case. I’d hate to see what this judge’s racism would have caused her to rule.
If you’re interested in finding out whether you have an implicit bias against a group of people you can take the Harvard Implicit Association Test.
I think anyone who is in a position where their unconscious bias might affect the outcome of a case has a duty to take this test and, if it shows a bias, to consciously address those issues so that innocent people do not suffer negative consequences.
In case you’re wondering, the gender and ethnicities of the professionals involved in this case were:
- Husband’s two attorneys: white male and white female;
- Wife’s two attorney: white male and me, a female Latin American immigrant;
- Children’s representative: white male;
- Judge: white female;
- Custody evaluator: white female; and
- Emergency intervenor: black male;
Apart from the wife’s attorneys, the only person to express alarm at the racial elements of this case was the emergency intervenor. His recommendation and common-sense advice was not heeded by the court.