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November 28, 2018 by Robert Franklin, Member, National Board of Directors, National Parents Organization

new study in the journal Social Psychological and Personality Science finds bias in judges’ rulings in child custody cases (Science Daily, 4/3/18).  Now, it’s worthwhile to note that this is a study, not of judicial behavior in the courtroom in actual cases, but in hypothetical ones.  Still, the methodology of the case suggests the pro-mother/anti-father bias we’ve come to know all too well.

The study was conducted by Andrea Miller, who’s an assistant professor of psychology at the University of Illinois Urbana-Champaign.  Miller accomplished one amazing thing; she got 500 state court judges to take part in the study.  They did so anonymously due to the fact that the results could be embarrassing for the state and the judiciary thereof.  So we don’t even know which state the study took place in.  Miller also received the participation of 500 lay people.
The judges and lay people analyzed two mock court cases, including a child custody case and a sex discrimination lawsuit where the plaintiff was presented as either a man or woman. The participants also completed surveys about their beliefs in traditional gender roles, such as stereotypes that women are more interested in raising children than in their careers and that children are better off if their fathers are the primary breadwinners for the family…
In the divorce case, the father and mother both sought primary custody of their two children. Both spouses worked full-time jobs and sometimes had conflicts with caring for their children. Judges and lay people who supported traditional gender roles allocated more custody time to the mother than to the equally-qualified father, but the judges were even more biased in favoring the mother than were laypeople. Only three percent of the judges in the sample gave the father more custody time than the mother.
"In both of these cases, support for traditional gender roles was associated with decisions that encouraged women to engage in more family caregiving at the expense of their careers and discouraged men from participating in family caregiving at all." Miller said.
What’s most interesting about those findings is that the judges tended to be even more anti-father than were the lay people.  I’ll be fascinated to read the study itself to flesh out that finding.  But whatever the details, the reality is as we’ve known for decades: even in the face of significant change in the behaviors of men and women, judges seldom manage to abandon the notion that mothers’ place is in the home with the kids and fathers’ is at work earning a living.  And the idea that children need both parents, regardless of their marital status, gets lost entirely.

Now, the Science Daily article’s quotations of Miller are freighted with the language of social justice.  So we learn from her that,
"This state court system has become a leader in the search for evidence-based solutions to the problem of implicit bias."
The notion of implicit bias is among the most dubious in all of current public discourse (City Journal, Autumn, 2017).  In the area of race, for example, it assumes that, although demonstrable racial bias or discrimination has much decreased in the last 40 years, it still exists in all of us, hidden deep within our unconscious selves.  As Heather MacDonald said here,
The need to plumb the unconscious to explain ongoing racial gaps arises for one reason: it is taboo in universities and mainstream society to acknowledge intergroup differences in interests, abilities, cultural values, or family structure that might produce socioeconomic disparities.
Given that taboo, the academy searched for and claimed to have found implicit bias.  The problem being that the methodology used to do so was laughably unsound.  I won’t go into the details, but read the MacDonald article linked to for a taste.  In brief, the methodology used to supposedly reveal implicit bias is both scientifically unreliable and invalid.  Even the originators of the “science” of implicit bias now abjure its findings as scientifically unsound.
Greenwald and Banaji now admit that the IAT does not predict biased behavior. The psychometric problems associated with the race IAT “render [it] problematic to use to classify persons as likely to engage in discrimination,” they wrote in 2015, just two years after their sweeping claims in Blind Spot
So, despite Miller’s reference to implicit bias, I suspect that the reality driving the judges’ decisions is far more explicit than implicit.  Put simply, judges see women doing the lion’s share of childcare, were probably cared for mostly by their mothers and know that the human race has forever had mothers as our primary caregivers.  It wouldn’t be unusual for them to conclude that mothers should be primary caregivers to children post-divorce.

The problem with that of course is that it ignores the children, specifically their best interests.  Yes, mothers have always done most of the childcare, but children still need their fathers too.  We’re a bi-parental species, so, whatever the proclivities of men and women, if we’re paying attention to children’s needs, we’ll make sure that they maintain real, meaningful relationships with both parents following divorce.  Children attach to both parents very early in life; damaging that attachment is the source of much emotional/psychological damage to the child.  Sadly, that’s what family court judges do every day.

However wrong she is about implicit bias, Miller certainly gets one thing right.
"The significant expertise that judges possess doesn't inoculate them again decision-making biases, and we can't expect much change until we see policy reforms that address decision-making procedures in the courtroom."
One of those policy reforms of course would be to ensure that judges learn the science on what parenting arrangements are best for kids when the adults split up.  I strongly suspect that, once that’s done on a consistent and regular basis, we’ll start to see far greater equality in parenting time than we do now.

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