Legislating Bias Out of the Bench

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Photo of a child in a coutroom. Legislating Bias Out of the Bench, is a guest post by Melissa L. Isaak, M.S. (Psychology), M.S. (Criminal Justice), J.D.

This article, Legislating Bias Out of the Bench, is a guest post by Melissa L. Isaak, M.S. (Psychology), M.S. (Criminal Justice), J.D.

High-conflict custody battles are often fraught with bias rulings and negative stereotyping.  The current application of the “best interest of the child standard” in determining child custody forces judges to make custody decisions based upon their conscious or unconscious predispositions and personal beliefs.  These custody decisions often result in children’s inability to maintain healthy relationships with one of their fit parents.

Rather than defining the best interest of the child standard, state statutes list factors a judge must evaluate in making a custody determination.  These factors often include a child’s age, the child’s gender, the child’s emotional and physical health, academic needs of the child, stability of the parents, mental and physical health of the parents, discipline methods of the parents, interrelationships with members of the household and parental abuse/neglect or issues with substance abuse. 

While these factors vary from state to state, judges hear arguments from both parties and render a decision based upon their own perceptions and life experiences.  Unfortunately, there is little correlation between the listed factors and parental fitness.  Fitness, the most important element of parenting, is not listed as a consideration in the best interest of the child standard.  

On its face, the best interest of the child standard appears to encompass what is best for children.  Rarely, however, are judges educated on the scientific research outlining custodial schedules that obtain best outcomes for children. Factors such as a child’s “age” and “gender” have been found to have absolutely no impact on a parent’s ability to care for a child.  If abuse is alleged, a judge may limit or even disallow a parent’s contact with a child despite no corroborating evidence and a vehement denial by the accused parent. 

Surprisingly, overall fitness of a parent has little influence on custodial determinations.  Fit parents are routinely relegated to the status of a “visitor” and commonly see their children less than six days a month.  The scientific, peer reviewed research has been readily available to judges to define what is in the best interest of children.  Overwhelmingly, the research shows that equal time with fit both parents, or as close to equal as possible, is in the best interests of children

According to the U.S. Census Bureau, in 2016 about 4 of every 5 (80.4 percent) of the 13.6 million custodial parents were mothers, while 1 of every 5 custodial parents were fathers (19.6 percent). The superficial application of the best interest standard has placed children of divorced or separated parents at risk.  According to the US Department of Health, children who lack a fulfilling relationship with their father are 63% more likely to commit suicide. 

The Center for Disease Control (CDC) reports that 85% of all children who show behavioral disorders come from fatherless homes and the U.S. Department of Health and Human Services found that 71% of pregnant teenagers lack a father.  The court ordered separation of children from parents coupled with the resulting increase of at risk children has compelled scholars, lawmakers and parents to tackle the problematic custodial determinations at the legislative level. 

Over the past decade, the vast majority of states have introduced legislation addressing the disparity in child custody determinations. Iowa legislators, with the help of Families United Action Network (FUAN), are proposing an equal parenting bill, SF 11. Opponents of shared custody legislation erroneously place blame on fathers for voluntarily relinquishing custody to mothers, and suggests that there is no evidence that judges are biased in determining custody. 

However, in 2015 the Alabama Office of Courts (AOC) surveyed domestic relations judges who admitted that they awarded shared physical custody to mothers and fathers less than 10 percent of the time.  Comments from judges included, “I have never in ten years awarded “true shared” or “50/50 custody” in a case” and “I do not believe that such instability is ever in any child’s best interest.  Therefore, I do not do it on my own accord.” 

Given the benefits of shared or “50/50” custody, it is undeniable that judges are making decisions based upon their own biases and misperceptions. Given the availability of research on post-divorce custodial schedules, we are now able to provide a definition of “best interest.”  It is irrefutable that the best interest of children is shared physical custody with both fit parents. 

Children have an inalienable right to love and associate with both fit parents.  Parents have the same right, solidified as a fundamental constitutional right, to raise their children free from interference by the state. The only way to address the judicial bias and dismal effects of one sided custody determinations is to implement a rebuttable presumption of shared physical custody.   

This commonsensical revision to our current custody laws truly promote what is best for children while fostering uniformity amongst family court judges. Nurturing and preserving relationships while upholding the rights of parents and children should be the trademark of family court.  Shared custody legislation is a guaranteed step in the right direction. 


This is a guest post by Melissa L. Isaak, M.S. (Psychology), M.S. (Criminal Justice), J.D.

Melissa L. Isaak founded the Isaak Law Firm to fight exclusively for the rights of men in family law. Prior to becoming an attorney, Melissa served in the U.S. Army as an active duty soldier. While on active duty, Melissa attended college as a full-time student and obtained her bachelor’s degree and a master’s degree in psychology.

After an honorable discharge from the military, Melissa worked as a child and adolescent therapist in both a residential hospital and in a private practice setting. Melissa has also worked as an adjunct professor of psychology at Wallace Community College in Dothan, Ala., where she taught courses in general psychology, human growth and development, and statistics. She was also an adjunct professor at Troy University teaching courses in juvenile delinquency and criminal evidence.

While conducting research for the U.S. Army Aeromedical Research Laboratory (USAARL), Melissa also obtained a second master’s degree in criminal justice and became a published author. She then obtained her law degree from Barry University School of Law where she served as Senior Editor of the Barry Law Review.

Melissa accepted a direct commission with the Alabama Army National Guard and became certified as a lawyer in the Judge Advocate Corp. Melissa is licensed to practice law in the U.S. District of Alabama and all Alabama and Florida State Courts.