From left: Hon. George F. Phelan, Annelise Araujo and Donald G. Tye
Disclaimer: The opinions expressed herein are those of the authors and do not necessarily reflect nor shall they be attributed to the Massachusetts judiciary, the courts or the legal offices of the authors.
Lawyers and judges who identify as white, cisgender, heterosexual men have long been overrepresented in the family law bar. Meanwhile, immigrants, first-generation Americans, and LGBTQ+ people are appearing before the court more often. The increasing diversity of parties in family court mirrors broader demographic changes in America, and is a positive indicator of equal access to justice.
Still, these shifting dynamics require special attention from family law practitioners, who are more likely than ever to encounter parties with values, experiences and cultural characteristics far different from their own.
The widening cultural gap increases the risk of biases that disadvantage litigants in court, particularly immigrants. Practitioners who fail to account for these differences increase the potential for miscommunication, ineffective legal assistance, inadequate judicial resolutions and appellate scrutiny.
How can we avoid such inequities? The question is rarely asked. When we talk about anti-immigrant bias in family court, we are usually discussing the disadvantages faced by undocumented immigrants. For instance, a judge may find that a mother without legal U.S. residency cannot be a primary caretaker due to the possibility of potential or even imminent deportation, and instead award custody to a less capable parent due to U.S. citizenship or permanent residency. Custody outcomes hinging on immigration status are not necessarily in the child’s best interests.
Avoiding this type of bias is critical, but our discussion will focus on a more insidious kind of prejudice, which stems from a lack of familiarity with the immigrant litigants who come before the court. This unconscious bias manifests itself in the professional guidance of lawyers, the rulings handed down by judges, and the administrative hurdles presented by the court itself.
To illustrate how to identify and avoid anti-immigrant bias in family court, we share the following case example — a composite of multiple clients whom we have represented or who have come before our court. After introducing this family, we will share the perspectives of a practicing lawyer, a guardian ad litem and a judge.
A husband and wife, both devout Muslims who emigrated from Iran, are seeking a divorce after three years of marriage. They have 2-year-old twins. Both spouses were practicing physicians in Iran. The husband is employed stateside and pays for all the family’s expenses. The wife, who speaks only Persian, stays home as primary caretaker to their children. The couple’s marriage contract, a feature of many Middle East unions, calls for the husband to pay the wife 300 gold coins.
The husband filed for divorce. The wife, drawing on traditional Muslim views of marriage and the role of women, does not want the relationship to end. She is so invested in the marriage, she wears her wedding dress to every court hearing, hoping to remind her husband why he chose her.
After separating, the husband continues to live at the family’s four-bedroom home in a high-income suburb with excellent public schools. The wife moved to a two-bedroom apartment in a less affluent community. The husband has extended family in the United States; the wife’s relatives remain in Iran. The wife has conditional permanent residency valid for two years.
The wife has previously alleged verbal abuse by the husband, though police have never been called to the home. The family court is to consider the husband’s request for primary custody. The wife is seeking custody, alimony and child support, along with the option to travel with the children and potentially return to Iran full time. The husband contends the wife is able to work as a doctor in the United States, eliminating the need for alimony or for allocation of travel expenses.
The lawyers' view
To avoid unintentional bias, lawyers and guardians ad litem (GALs) must seek to understand their clients’ needs, experiences and cultural backgrounds, and develop a tailored approach that accounts for these differences.
One common way advocates can fail their clients is by not considering the full scope of their lives. Often, an immigrant litigant’s ties to America are only a small part of their story: Many have spouses, children or other close family members back in their home country; they travel home regularly; or they own property abroad. Proceedings that focus predominantly on an immigrant’s circumstances in the United States — and do not consider the depth and complexity of the links to their home country — will not serve the best interests of the litigant or the court.
Take another look at our case example. One might assume the couple’s U.S. citizen children should remain in America with their father, who can provide the necessary economic and educational resources. Superficial impressions about political ideology alone in the country of origin should not be determinative of custody. But the wife’s family support in Iran, plus her ability to obtain well-paid employment there, must be weighed heavily. The picture is more complex than it first appears.
Advocates can further reduce inequities in family law practice by identifying their own implicit cultural biases, as well as the potential for negative inferences drawn by judges and court staff. Conclusions based on how a person is dressed, their English fluency or their interactions with their children can easily mislead.
There are some common stereotypes that surface in family court, despite dogged efforts to create an environment free of discrimination and prejudice. One example is the assumption that immigrant parties lack education, income and/or the ability to work; in our case, the nonworking wife has more schooling than the judges and lawyers working on her case. Occasionally, these improper assumptions may come from one of the parties in a case — especially when a difference in immigration status or cultural background creates an imbalance of power.
A litigant’s undocumented status is often a flashpoint in family cases. To discern whether a claim is legitimate, family law attorneys should consult an immigration lawyer able to accurately describe the litigant’s circumstances and the likelihood as well as timing of imminent deportation.
Lawyer-advocates also must be cognizant of what an immigrant party expects from the family court system. Some immigrants come to the United States from countries where due process is routinely denied and legal protections vary according to a person’s gender, wealth or social status. We must educate our clients on their rights and the court’s processes.
We must also ensure that GALs are well prepared to serve these populations. GALs are regularly appointed by courts in high-conflict custody cases and often have little experience working with immigrant families. But the work they do demands deep cultural sensitivity and an appreciation of different family models.
Whether the GAL is a lawyer appointed to find facts or a mental health professional assigned to conduct a clinical evaluation, it is essential that the investigation be complete, comprehensive and free of cultural bias. Good test providers should develop their psychometric tools to be fair and valid across cultures. Test items should be written by experts from a broad range of cultural backgrounds and of various nationalities. It isn’t enough to simply translate assessments into different languages, because direct translations can miss important cultural nuances.
Again, we turn to our case example. A factfinder who is not culturally sensitive may entertain the bias that an English-speaking household is preferable for the children of the divorcing couple. This view disadvantages the wife, an unquestionably intelligent and capable person who lacks English fluency.
In situations like these, the lawyers and the GAL must work together to understand a litigant’s perspective and experience, introducing culturally competent evidence to assist the court in understanding the proper context.
In the U.S. court system, there is a tendency to evaluate cases through the prism of so-called “American” values. Concepts we claim to value highly in our society, such as gender equality, can be used to make unfavorable comparisons to other cultures. This tendency may predispose advocates and judges to draw inaccurate or incomplete conclusions and assumptions about a litigant’s own values.
By setting aside our own implicit judgments about the “right” or “wrong” approach to these highly personal subjects, we can learn about our clients, open our minds, and pursue a result that embodies the highest ideals of the family court system.
The Judge's View
Judges and court staff must also leave aside any preconceptions, evaluating each case through the prism of an immigrant litigant’s circumstances and experience and avoiding errant conclusions based on their background.
Family court judges bear the responsibility of evaluating each case fairly. Typically, judges are presented with immigration status as a factor in custody determinations and in cases where violence is present. In many other situations, the judge does not know — and may be procedurally constrained from inquiring about — a litigant’s immigration status. If an immigrant’s counsel finds it appropriate and relevant, counsel may sua sponte
identify important cultural considerations relevant to the proceeding, and request that this information be impounded.
Unconscious bias also must be addressed in court-provided services, dispute resolutions, determination of critical factors in a case, and even how we treat and speak to the litigant. Family court judges should champion systemic changes to root out and correct anti-immigrant bias.
For instance: Any temporary protective orders granted should be referred for default review by a country expert, paid for by the court, who should interview the litigant about any cultural or contextual factors bearing upon the case. The results should be available to the family court judge for further hearing within seven days, and any appropriate amendments to the initial order should then be considered.
The country experts should also inform the judge of contextual information such as marriage rights and obligations in the country of origin. Are women regarded as property, and are their movements controlled? How heavily does religion inform the judicial process there? Can other extrajudicial or tribal courts overturn or ignore U.S. court custody orders?
The court has a responsibility to educate itself about the myriad cultural complexities beyond immigration status, but we must consider these crucial factors without allowing bias in the court. Judges must develop a deeper understanding of immigrant experiences and expectations, understanding that some may be skeptical of our judicial process. Additionally, courts must be open to the notion that, despite its resources and safety nets, America might not be the best place to seek resolution of a custody dispute involving immigrant parents.
Returning once more to our case example, we find that the wife, a well-established physician in Iran, does not practice here due to a lack of English-language proficiency. Instead, she is the primary caretaker for her young children. Is that heavy parental lifting more recognized and respected in Iran? Should her request to remove the children with her to Iran be permitted, given her extended family and better employment prospects there? What should a judge think about why she wears her wedding dress to each court appearance — is she eccentric or relying on a treasured custom?
Information the family court judge does not
know is critical to the equitable resolution of this dispute. But judges cannot simply search the internet or excavate extrajudicial resources to get informed. Culturally informed GALs and attorney-advocates are critical to a judge’s knowledge base. In addition, the judge should encourage and allow motions to appoint cultural experts to testify, and each court should develop a roster of available country experts.
Given that a party’s first exposure to family court may be related to domestic violence, judges should insist that restraining order applications be the starting point for expansion of access to interpreter services. This will simplify the process of educating immigrant parties about domestic violence and corollary issues such as custody and support. Specific language translations of these corollary rights should be attached to the restraining order application.
These issues often must be decided under serious time constraints and amid high-volume caseloads. Judges and the court staff who support them must develop the cultural capacity to arrive at the fairest result. In cases of self-represented immigrant litigants, family court judges should appoint a GAL and encourage that the immigrant litigant be informed of cultural issues relative to divorce, custody and domestic violence. If the litigant is represented by counsel, then the judge should order the attorney to present such issues to the court.
By taking these time-intensive but necessary steps, all of us in the family court bar can work together to diminish anti-immigrant bias. An extended [or adapted] version of this article appeared in Family Advocate Winter 2022 Vol. 44 No. 3 (A.B.A. Family Law Section).
Hon. George F. Phelan has served on the Probate and Family Court since 2010, preceded by 30 years’ practice, including active military duty as an Army JAG colonel in Iraq, for which he received the State Department annual award for empowering women. He has presented at more than 70 CLEs. He was a non- English-speaking immigrant.
Annelise Araujo is a founding partner at Araujo & Fisher LLC in Boston. Araujo has 15 years of practice in family and immigration law, including family-based, employment-based and humanitarian applications. She is the chair of the New England chapter of the
American Immigration Lawyers Association (AILA). She was named a
Boston Magazine Top Lawyer for 2021. She is also a member of the Boston Bar Association Immigration
Steering Committee. She is a graduate of the University of Toledo College of Law.
Donald G. Tye, J.D., MSW, is co-chair of the Domestic Relations Group at Prince Lobel Tye LLP in Boston. He has many years of experience as a trial attorney, guardian ad litem, master, mediator, conciliator and attorney for children, and is a frequent lecturer on divorce and child-related issues at law schools, and bar associations in Massachusetts and nationally. He is a fellow of the American Academy of Matrimonial Lawyers and the International Academy of Family Lawyers. He graduated from Tufts, and from Washington University in St. Louis, Missouri, with his Juris Doctor and Master of Social Work. Contact him at email@example.com.