DAILY POST: If Judges Use Biases Why Can’t You?

TOOL OF THE DAY: Judges, their roles, and their biases

CATEGORY: Family Law

Emotions matter…especially when they are the emotions of the judge.

Yes you have rights and you should not be basing your rights on anyone’s emotions, not even a judge. But you also cannot completely blow the judge off and your opportunity to try and get your judge on your side. Meaning that you will present your rights in the context of things that the judge cares about. But you will not sacrifice your rights to the bias of your judge’s emotions.

Judges have things they care about in life. One of these are the roles they play. Your judge might be a female who is also a mother and a wife. She might be on the PTA or perhaps her husband plays an important role in the community coaching their children’s soccer team. Your judge might not believe that children should not date until much older. The judge and their spouse might both really like the schools their children attend. And they might like that they have some status in the community. The roles the judge plays in their own life and how they play them and what affects them matters to them. And it should matter to you only for purposes of being able to predict how the judge is going to react to things that are brought up about you, for purposes of selecting which things you will present and how you present them, and how much leverage you will need from your rights.

So if you know that your judge enjoys being able to spend lunch with their son or daughter and be able to be with her family in the evening for dinner, you know that family, community, status, and schools is important. You can also probably guess that if she has never been divorced that you already have some biases from the judge and challenges where the judge will not understand that even in divorce they should be applying equal protection to both parents.

Let’s say that the other parent is trying to move your children out of the community where you all have lived and raised them.

Of course it is each parent’s right to move and raise the children where they choose; however, it is not either parent’s right to interfere with the rights of the other parent.

Here’s why it’s an interference: Sure one parent can exercise their rights by seeing the children by traveling to see them or having the children travel.

However, if you have community ties, you like the places you take your children, you like the people you work with and they serve as a secondary family to you, and you have friends who also serve as a community ties to you and your children. These are difficult to duplicate and are not easily replaceable. You also might have family who lives close to you and they spend time with your children as well.

Your children might have activities and places where they have become accustomed and bonded to and making a change would take away some of these things that you want your children around and influenced by that are not formed in a day or a year.

Just saying that you can still exercise time with your children even after they are moved does not replace these things that cannot be replaced by relocating.

If at some point in time you choose to make those changes mutually with the other parent, that is different. But one parent imposing those onto the other and taking your opportunity to keep influencing your children within an environment that the two of you previously agreed to, would seem to not be the least restrictive decision and certainly not one of compelling state interest.

Guess you could tell the judge that perhaps the other parent would need to convince you or that they cannot move. This is how it would work if the two of you were married. Not being able to convince you to agree with the other parent certainly is not grounds to take it to court and try to force the move.

You can use things in your own testimony to get the judge to relate to things you are being challenged with.

What if the other parent is trying to limit your time with the children?

You would share how important certain things are to your children and then back it up with how protecting your rights would also protect you and your children from losing these things that are important not just to you but also to their healthy development. And then back that up even stronger with how the other side actually has failed to provide the court with anything that would require the court to do anything other than least restrictive. And discuss your belief that there must be a compelling state interest to step in and disturb these important things in your life.

Okay so let’s dig a little deeper, what if your judge has a conservative bent towards mothers and believes in the traditional roles and you are at a disadvantage because you are male. She might have a built in bias about you having equal time with your child right? She might believe that the woman’s role is the parent who raises the children better unless the mother is shown to be horrible or abusive. We already know that you don’t want to frame your case as I’m better than the mother because then you invite the judge to take on the role of decider of the “best interest of your child.” So what can you do?

First of all, you know that you are not going to open your testimony up with I share my values with my child by taking him to Hooters every month. Instead, you are going to craft your testimony to reflect things that you know the judge cares about, and won’t push her buttons. You might open with even though we are divorced my child gets to see each of their parents every day. This would be for parents who want to have their child every other day, the way that Ron and I see his daughter. This has allowed us to know what is happening in her life daily and she has been able to feel connected to both parents equally, and have the support from both parents constantly and consistently. She goes through the normal things that a child of a marriage would go through, not the alienation or estrangement or missing one of the parents or losing the authority and security of one of the parents. She has the same angst and issues that she would have had if her parents had still been married. But she has the support of both parents still! What a bonus for the child. What judge wouldn’t like that!

This is the same for judges who are conservative the other way and believe that the father is the person who can best handle the children and sees that parent as the disciplinarian and better suited to teach the children the right way to behave in society. Give the judge an opportunity to see that they can ensure that the child doesn’t lose either parent. And therefore the child still gets the best of both worlds, the one the judge sees as the disciplinarian and the one who the judge must see as having other roles int he child’s life.

You don’t have to go into this trying to change what is important to the judge, just help the judge get over some of their own biases about divorce while maintaining their idea that roles are important and that the child doesn’t have to lose any of these roles, the disciplinarian, the female caretaker, or whatever bent they might have.

BOTTOM LINE: Your judge might have a bias against divorced parents. Your judge might have a bias against you playing an equal role in your child’s life. You can only do your best to overcome these biases. By inserting some things that could interfere with your judge’s biases as explained above, perhaps you can tip the judge slightly into being more neutral. And maybe even diffuse them if they understand how stabilizing it can be for a child to not lose either parent.

A WORD ABOUT THE EVERY OTHER DAY EXCHANGE: You might have a bias against every other day exchanges. And this exchange only works if you can arrange it to where the two of you live within close proximity. But it is a darn good way to provide your child with the security and stability and consistency as well as keeping you in constant touch and contact within your child’s world of emotions and development.

There are many other arrangements. This is just one of many. Week on and week off might be one that you consider, but there is a lot that happens in a child’s life in a week, so you might start feeling out of touch a bit at times with this kind of arrangement.

The every other day arrangement has worked best in our situation where the two parents do not co-parent. This way they do not have to communicate much and the child doesn’t have to worry about catching up either parent about things in their life.