Unconscious Bias in Divorce

We all have unconscious biases, attorneys and mediators included.  It is part of the human experience.  The unfortunate thing is that many of us do not recognize our biases when we are sitting in the room with our clients, during a negotiation and in the courtroom.  The failure to realize our biases and to take actions to counteract them prevents us helping clients to come to the best resolution for them and their families.

What types of unconscious biases come up in the typical divorce?  It is still not uncommon in today’s society for us to have underlying thoughts about gender roles and parenting.  Most of us grew up believing women were the natural caregivers and men were the breadwinners.  These stereotypes carry into how we handle clients in a divorce.  We assume the wife/mother is going to want primary custody, or maybe that she should have custody just because of her gender.  This is archaic thinking.  “Traditional” family roles are no longer the norm.  There are stay-at-home dads, wives who are the higher wage earners and families where there are no defined roles as to who should perform what duties.  This does not include the fact that there are many more LGBT parents.

I have seen this many times – in Court and in the office.  It wasn’t that long ago that the Court’s used in determining child custody matters the “Tender Years Doctrine” which favored the wife/mother for children of a certain age.  This policy has been debunked and is no longer considered valid in the Courts, but it does not mean that those biases do not still exist.  It is hard for judges and attorneys who practiced following this doctrine for many years to then remove these stereotypes from their memory.  This is something that parties should consider when they are determining how they want to get divorced, as the Courts may not be as thoughtful in addressing “non-traditional” parenting roles.

Parties are not only negatively impacted by the biases of professionals in the divorce setting, but also by how they are seen in society.  Parents will often use “covering” to conform to expected norms.  Mothers may seek primary custody of the children out of societal pressure to be the caretaker and less than an actual desire to assume the role.  Likewise, fathers will not ask for a greater share of custody or parenting time due to the negative stereotypes of males as the nurturers.  Societal pressures can prevent clients from articulating their true interests regarding their family.

Practitioners need to be mindful of their biases and change they way they handle family matters.  We can no longer make assumptions about who is the primary caregiver based on gender.  Instead, we need to gather information from the parties to help determine what was the norm for the family.  We can achieve this by using genderless questions in gathering information for a divorce matter.  In developing parenting plans, we may wish to refer to parents by name as opposed to Mother/Father to also address some of these stereotypes.

Professionals should look inward at the beginning of each case to see how stereotypes and biases may impact the way they treat their client and/or the other party in a family matter.  Further, there needs to be an awareness of how social stereotypes can affect the interests and goals of parents in their divorce.  Through recognition of unconscious biases, practitioners can better serve families in divorce.