Do You Expect Family Law Judges to be Biased?

Most people would answer no to this question. In fact, a Judge’s oath is to decide cases fairly and objectively. People need a sense that they are appearing in front of a neutral judge, regardless of race, socio economic status, gender, etc.

This is an aspirational promise for sure. Most judges will, in fact, say that they are rational, objective decision makers. A judge will not blatantly say “I award you custody because you are the mother” or “You win because you are rich.” However, there are many biases that all people, not just judges, face when making decisions. This is because our brains are wired to use short cuts to making decisions. It’s an evolutionary process that allows for a decision maker to quickly and efficiently make decisions on key issues. These are known as heuristics.

In psychology, heuristics are simple, efficient rules which people often use to form judgments and make decisions. In the early 1970s, psychologists Amos Tversky and Daniel Kahneman demonstrated three heuristics that underlie a wide range of intuitive judgments. This research challenged the idea that human beings are rational actors, but provided a theory of information processing to explain how people make estimates or choices.

One example is representativeness. “Representative” is here meant in two different senses: the prototype used for comparison is representative of its category, and representativeness is also a relation between that prototype and the thing being categorized. For example, if a judge awards custody to a stay at home mother instead of a working father this may arise, in part, to a representative heuristic where the judge is comparing, in general, such a situation to most other stay at home mothers who have custody. However, it is wrong to say that every stay at home mother should win custody.

That is why we use a system to mathematically measure the inputs that impact on custody decisions from the law and give the judge an option that is grounded in statistically valid options that are in the “best interests of the child.” This is just one example of a human nature bias that is often unseen in the court room but very existent. To learn more about overcoming the hidden side of Judges’ biases contact us at or call us at 505-880-8737.