A Judge’s Guide

MANAGING THE CHILD CUSTODY CASE
facial expressions and even the nodding of their heads can have an impact on the
parties’ perceptions of judicial fairness. 22
Addressing Bias
Judges must pay special attention to potential biases while hearing and deciding
child custody cases. If the parties feel a judge is biased against them because of
their race, gender, socioeconomic status, disability, sexual orientation, or other
status, 23 they will feel disenpowered and have little faith that justice will be done in
their cases. If the parties feel that their positions have been thoughtfully
considered by the court, even if the court rules against them, conflict is more likely
to be diminished and court orders honored. Children benefit in the long run. In
addition, bias-free proceedings enhance the likelihood that children will find
themselves in the care of the most appropriate caretakers.
“Frankly, to recognize the existence of such prejudices is the part of wisdom.
The conscientious judge will, as far as possible, make himself aware of his
biases . . . and, by that very self-knowledge, nullify their effect.” JUDGE
JEROME FRANK, COURTS ON TRIAL: MYTH AND REALITY IN AMERICAN
JUSTICE 414 (1949), cited in THE JUDGE’S BOOK at 132.
Canon 2 of the ABA MODEL CODE OF JUDICIAL CONDUCT mandates that “. . . [a]
judge shall perform the duties of judicial office, including administrative duties,
without bias or prejudice.” 24 This provision means that “[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.” 25 The judge’s duty also extends to lawyers in the
courtroom as “[a] judge shall require lawyers in proceedings before the court to
refrain from manifesting bias or prejudice, or engaging in harassment, based upon
attributes including but not limited to race, sex, gender, religion, national origin,
ethnicity, disability, age, sexual orientation, marital status, socioeconomic status, or
political affiliation, against parties, witnesses, lawyers, or others.” 26
You should consider participating in educational programs designed to address the
influence of bias on judicial decision making. Judges who have experienced
“diversity training” relate that it helped them develop a greater self-awareness of
how their values and biases may influence their decision making. In commenting
on a full-day training on cultural awareness for judges in Cook County, Illinois,
Associate Judge Samuel J. Betar, III, reported that the participants were shown
slides of people and asked to state their occupations. Although he did not believe
himself to be biased, Judge Betar found that “[the] training demonstrates . . . how
subconsciously you can draw inferences about people from their appearances
[and] this insight alone made the training worthwhile.” 27 Likewise, Judge
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