Is There Bias in the Court System?
  by John P. McNeil, Attorney at Law

When discussing the issue of bias in the family law arena, some quasi-Political Action Groups try to take advantage of people’s perceived notions regarding their chances of winning or losing based solely on their gender.  Some groups pander to the notion that the judicial system is biased against all men and that men are always the victims.  Just as many pander to the notion that the system is biased against all women and that women are always victims.  The truth lies, like in a lot of perceptions and court testimony, somewhere in the middle.  Clearly, not all men and not all women can be victims of the judicial system.  Often what one groups sees as a disintegration of their rights, the other groups sees as a fulfillment of their rights.  Who wins in these battles about gender bias?  Usually no one.  Both groups take such polar positions and proffer such extreme evidence that both groups lose credibility upon careful and thoughtful review.

The allegations of gender bias get the most press in the areas of domestic violence, child custody, child support and alimony.  Various groups promote the agenda that men are aggressive woman-haters who perpetuate all domestic violence, while others cite statistics that show that men and women are aggressors.  Anti-male groups promote the agenda that men are mere absentee-father breadwinners and that women are victims of a male-dominated society who were forced to forgo their careers to raise the children.  The anti-female groups paint women as bon-bon eating fiends who merely want a check from the “sperm-donor.”  The groups can even produce reams and reams of evidence to support their positions. 

Almost any potential litigant may be exposed to bias in society and in the judicial system.  There are certain categories of litigants against whom there may be legitimate biases.  A person who has or had an addiction to drugs or alcohol may be perceived as a parent who can not handle the responsibilities which accompany primary custody of a child.  A person who has been the victim of spousal abuse or the perpetrator of spousal abuse may be viewed as someone who would not fight to protect their child from the abusive parent or who would now channel their abuse on the child.  A parent who pursues an extramarital relationship may be viewed as someone who is more interested in their own needs rather than the needs of their child.  A parent alleging child abuse by the other parent may be viewed as simply making accusations to win their case or as someone who was complacent with the abuse until it was advantageous to use the allegations when the marriage breaks up. All of these negative inferences are observed in societal norms, in the media, and in the judicial system.  To ask the judicial system to simply correct these negative inferences is to ask for an impossible result.  What could the potential litigants have done to prevent or reduce these negative inferences? An addict could immediately seek counseling and attempt recovery.  A victim or perpetrator of spousal abuse could do everything possible to stop the abuse from happening and protect their children and spouse from the abuse.  A spouse could carefully consider the consequences of their extramarital actions long before they decide to take that first taste of the forbidden fruit.  A parent could always attempt to ensure that their children are never subject to any abusive behavior, either physical or emotional, by themselves or by their spouse. Counseling may be a great place to start for these parents who see these situations occurring in their homes. 

What does a potential litigant need to do when faced with a situation that may encourage bias?  By acting in a manner consistent with their ultimate goals.  A parent who wants to be an active participant in the child’s life should not allow the other parent or the fear of bias to dictate when and if they spend time with the child.  If you are a parent planning on moving out and want to have equal time with your children, leaving the house without a custody plan may not be in your child’s best interest.  If a parent leaves the marital residence and does not try to see their child for three months, how serious should the Court take their request to have the child in equal intervals as the other parent?  If the child is more important than anything, why did the parent go on vacations with their paramour rather than spending that time (and money) with their child?  An inattentive and absent parent may be perceived as someone who is selfish and does not want to change their schedules to accommodate their child.  Sometimes the actions of a parent falls right in line with the very biases that may negatively affect their case. There are cases where a non-custodial parent wants more time with the child simply to reduce their child support payments.  There are also cases where the custodial parent denies more time with the child simply to avoid a reduction in child support payments.  These types of cases must negatively affect the active, attentive and loving parents who have legitimate custody desires. 

To discover if the litigant’s motivation is money, the Court should allow each parent to answer these questions:  Would you be willing to agree to pay the same amount of child support if the other spouse agreed to give you more time with the children?  Would you agree to accept no child support if you were given the majority of the time with the children?  If the parents can not honestly answer those questions with a “yes”, the motivations of paying or receiving more or less in child support are probably clouding their decisions regarding the child.  If the parent’s motivation is primarily money, who is ultimately going to suffer? The child, by way of the deterioration of the relationship between the parents.  Money is often cited as a major cause of marital discord and divorce.  Is it any wonder that it would continue to be a very disruptive and destructive force when the parties are in the middle of the divorce process? 

What one single thing could help the judicial system and the perception of bias?  By litigants policing themselves, their friends and their attorneys.  Be a peer-based motivator. If your friend is trying to work the system, sit him/her down and tell them to stop.  Surely your friend would prefer to admit they are acting poorly rather than lose that friendship; if not, maybe they aren’t as good a friend as you thought.  If an attorney is telling you or a friend to work the system, call them on it.  An attorney should not make things harder than they need to be.  The problems caused by dishonest and poorly-motivated litigants effect everyone who steps into the courtroom. 

Often the discussion of prejudice or bias indicates that the person sees a weakness in their particular case based on characteristics that they can not change.  Or they feel that they are entering the judicial system from a position of weakness and are powerless to change their position.  Feeling powerless to change the outcome of their case, many people often claim bias, automatically give up and then decide to let the system treat them however the system sees fit.  This approach guarantees to perpetuate the myth that society, attorneys, judges and the judicial-system in general are filled with prejudice and bias.

Since the Court system is made up of humans beings, the system represents the very best and worst of human nature.  The judicial system is not going to be any better or any worse than the community, society and people it represents.  The simple fact is that there is prejudice in every aspect of life whether in the community, in the court system, at the bank, at the office or in the home.  Judges, attorneys, court officials and litigants are no exception.  To expect anything else is to have an unreasonable expectation of the judicial system. The reality is that in certain instances there are biases against and for certain groups and classes of individuals in the family law context.  However, it is not so pervasive that a person should be paralyzed with fear and anxiety. Through careful preparation, presentation and extra effort, the class and gender stereotypes that may have led to gender bias in the past are going the way of racial segregation laws. Each case depends more on the facts, attitudes and actions of each litigant than it does on societal prejudice.  If there is a failure of the judicial system at the trial court and appellate level, the chance to combat a community’s bias occurs every day in church, in the office, at the park, and among neighbors.  Last, but not least, if your local court official has an actual bias toward or against any class of people, the next best chance to get rid of the bias occurs at the polls.