Family Law Judges and Gender Bias

When a married couple decides to file for divorce and have children from the marriage, it can be difficult to come to an agreement about how they will share parental responsibilities. Under the Illinois Marriage and Dissolution of Marriage Act (IMDMA), when it comes to parental responsibilities and parenting time (previously known as child custody and visitation), parents can work together to develop a parenting plan that is in the best interests of the child. Creating such a parenting plan means that a judge will not make decisions about how the parents will share parental responsibilities and parenting time. When parents cannot agree and a judge must make these decisions, do parents need to worry about gender bias impacting a judge’s decision?

Implicit bias can happen almost anywhere, and people often do not realize that their biases are playing a role in the decisions they make. According to a recent study conducted at the University of Illinois at Urbana-Champaign, trial court judges may in fact exhibit evidence of gender bias when making custody decisions. How should we understand the findings of this study in the broader context of parental responsibilities and the best interests of the child?

Gender Roles May Influence a Judge’s Decisions

We do not like to think about gender bias and the ways in which it might impact family law cases. However, as the study suggests, judges in child custody cases are sometimes influenced in their decision making by their implicit bias. While we might recognize indications of implicit bias among friends or coworkers, most of us would like to think that judges are always impartial. Yet the authors of the study argue that judges will make discriminatory decisions to the detriment of both men and women in family law cases.

Are some judges more likely than others to let their biases affect the decisions they make? According to Andrea Miller, a psychology professor at the University of Illinois who authored the study, the answer might not be the one you would expect. As Miller explains, the more experience a family court judge has, the more likely he or she is to make biased decisions. To be clear, judges with significant experience handling family law matters tend to make more biased decisions in family law cases than judges without that specific type of experience. Miller suggests the reason is that judges often believe that their extensive experience means they are above implicit bias.

Yet like other professionals, judges are not entirely immune from bias when they make decisions. Indeed, implicit bias can sneak into the decisions made by almost anyone.

How Bias Affects the Outcomes of Child Custody Cases or the Allocation of Parental Responsibilities

The authors of the study and many judges alike participated in this work to learn more about the ways that implicit bias can “contribute to social disparities in the legal system.” Through the study, Miller worked with 619 current judges and evaluated decisions in 372 child custody cases specifically. Generally speaking, Miller found that judges were more likely to allocate additional parenting time to mothers in cases involving a mother and a father.

In fact, judges tended to show bias when it comes to traditional gender roles at rates higher than laypeople. As part of the study, Miller assigned cases to judges and laypeople, and more often than the laypeople the judges would allocate additional parenting time to the mother. On the whole, both judges and laypeople showed signs of implicit bias.

Contact a Chicago Child Custody Lawyer

The study suggests that we all need to consider potential biases when making decisions and that families should take into account the possibility of gender bias in a family law proceeding. If you need help developing a parenting plan, you should speak with a Chicago child custody lawyer today. Contact Arami Law to learn more.