A Judge’s Guide

MANAGING THE CHILD CUSTODY CASE
Use consistent language “in forms of address and treatment to avoid
the impression that one person is being favored over another, and to
prevent denigration of one person’s status as compared to another’s.”
Avoid comments on women’s personal appearance.
Refrain from “[h]ostile remarks, slurs, and ‘jokes’ that reflect race and
gender bias” as these are “absolutely impermissible.” 31
In addition to being cognizant of your own nonverbal behavior, you should also
be attuned to cultural differences in court participants’ nonverbal communication.
Attention to cultural differences is especially important in assessing the credibility
of parties and witnesses. For example, as noted in THE JUDGE’S BOOK, judges
raised in the Western European culture tend to believe that an individual who is
telling the truth will stand up and look a judge straight in the eye. By contrast,
such behavior is considered disrespectful in some Native American and Asian
cultures, and the more appropriate response in these cultures is to look down and
avoid a direct gaze. If a judge is not familiar with such cultural differences, he may
unfairly judge a witness or defendant as untrustworthy. It is important to become
educated regarding such cultural differences in order to appropriately assess issues
such as credibility. 32
In summary, Judge Karen Aileen Howze’s examination of cultural context in
dependency court proceedings has applicability to decision making in child
custody cases. She asserts:
. . . The critical first step requires that the scope of relevant facts be
expanded to include the total life experiences of adults and children
before the court.
Whether in Baltimore, Cincinnati or on Hawaii, the people who
come before the courts bring their cultural and social precepts.
From family to family, case to case, differences rule. Even if families
appear on the surface to be similar, the combinations of cultural and
subcultural context are too numerous to expect uniformity.
Ultimately, judicial officers assigned to abuse and neglect cases must
understand that matters of culture often affect decisions concerning
children and their families. . . .
The reality remains: norms that are set today will no longer be
applicable or valid tomorrow. Instead, social workers and the legal
profession must develop a more disciplined method of questioning
the facts in each case to determine whether cultural and subcultural
factors may be at play. . . 33
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