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Family LawFeaturesLitigationLJN NewslettersThe Matrimonial Strategist

Bias in Custody Evaluations

BY Jeffrey P. Wittmann
March 01, 2017

There are several foundational components of effective and reliable forensic work:

  1. Fair-minded and even-handed interaction with litigants and their representatives;
  2. Complete and balanced collection of relevant data;
  3. Choice of a method of data collection that is known to produce valid information; and
  4. A sufficiently logical and empirically supported interpretation of what has been learned about a family.

However, evaluator bias can interfere with these noble goals and lead to the court being misled. “Bias,” in the broadest sense, refers to an emotional or cognitive inclination that interferes with an unprejudiced consideration of the information that has been gathered about a family. Bias on the part of an evaluator can introduce distortion in any of the foundational components listed above, increasing the risk that the conclusions that are guiding the court may actually be less than reliable.

Bias manifests in many forms. An evaluator may unconsciously favor mothers, a prejudice that quickly becomes evident when she shows disdain for some of the father's assertions without reason. Another evaluator may set himself/herself up for a preference for the father's position in a case simply by interviewing the father first — and repeatedly — in advance of ever seeing the mother. Still another evaluator may enter an assessment with firmly held preconceptions about what is emotionally healthy and unhealthy for children (e.g., the family bed is bad; young children should be with their mothers; etc.) despite the fact that the empirical research in his or her discipline fails to support such perspectives.

These assumptions and cognitive sets, however formed, fashion a lens through which information that is gathered on a family will be analyzed and interpreted. They create a very real potential for error at the stage where the court is being given an evaluator's “bottom line” about a particular parent's functional capacities and skills or a certain child's emotional and developmental needs.

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