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Bias and Prejudice in Custody Evaluations

By David A. Martindale

Only fools assert that they are free of biases. Biases come in many forms. Some are personal (held by particular individuals); some are culturally determined; and some come with being human, and affect all of us. Some biases operate consciously; some operate outside the realm of consciousness. Some biases are reasonably foreseeable; some cannot be anticipated. Of significant concern to matrimonial attorneys are those biases that affect the judgment of custody evaluators.

The biases to which we refer most frequently are attitudinal biases, reflecting a preference or inclination that impairs objectivity and lessens the probability that an impartial judgment will be rendered. It is important to reflect upon the manner in which we use the terms “value” and “bias.” In typical usage, a value is a good thing; a bias is a bad thing. The attitudes with which we agree we refer to as values; those with which we disagree we refer to as biases. The evaluator who feels (for personal or for religious reasons) that children should be raised by a male and a female is likely to describe this belief as a value. A representative of the Lambda Legal Defense Fund is likely to describe this belief as a bias.

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