Letting a Judge make a Judgment - Assault on Judicial Integrity by Child Custody Evaluators - Part IX

While it definitely has imperfections and I am always pursuing efforts towards improvement, I feel great respect for an honour to be involved in our judicial system and its processes. Maintaining the integrity of this system is essential to its lasting stature and influence in our society.

Here is the Preamble to the Indiana Code of Judicial Conduct.
An independent, fair and impartial judiciary is indispensable to our system of justice. The United States legal system is based upon the principle that an independent, impartial, and competent judiciary, composed of men and women of integrity, will interpret and apply the law that governs our society. Thus, the judiciary plays a central role in preserving the principles of justice and the rule of law. Inherent in all the Rules contained in this Code are the precepts that judges, individually and collectively, must respect and honor the judicial office as a public trust and strive to maintain and enhance confidence in the legal system.

As the arbitrator of a child custody proceeding the judge is empowered to make a decision based upon personal judgment but also bound by Rules of Court and specific statutory provisions. Concurrent with this limited power is the responsibility to ensure that decisions are reflective of the best interest of the child.

A judicial officer has the responsibility of balancing that interest with due process rights of the parents or other parties engaged in the process. To assist in making the awesome decisions regarding child custody judicial officers may be bombarded by information from the parents and their advocates, the judge's research and education, evaluators and other expert contributors either hired by the parents or the court. In addition judges must acknowledge and suppress their own personal biases.

Essential to the integrity of judicial proceedings is ensuring that due process is afforded to all parties while impartiality is maintained. That is, justice is blind. There are threats to this impartiality that are inert, incidental, and directly imposed.

We all have biases that develop through our accumulated experiences. I have a bias that informs me that divorcing parents are hostile, self-centered combatants who don't care about their children. I easily push this invading though aside as logic tells me this is not true and is based solely upon my experience as a specialist in high conflict parenting cases. Judges have biases that have been developing since their first moment of cognition. For most, these inert biases are easily managed.

A greater danger to a judicial officers ability to make a decision – a decision consistent with the best interest of the children, due process and the evidence presented – are the incidental biases. These come from various sources which may include the evidence presented by mental health professionals or other advisors to the court which may be tainted by the evaluators biases towards the subjects. Further removed from the immediate participants is the societal influence. In speaking with a judge once this became clear. The conversation was about issuing ex parte orders for protection and the proliferation of false allegations. The judge's position was poignantly explained with the statement, “They can always request a hearing but if I don't issue the TPO and someone gets killed what happens to me at the next election?”

There is also the direct threats to the judicial officer. These can be in the form of either physical threats to the judge's well-being or the judge's character or reputation if a ruling is not made in one's favour. A direct threat will likely result in a finding of criminal contempt in addition to other charges and sanctions. I have been involved in a case where a judge was, according to an anonymous caller, threatened with physical harm. In my own divorce a message was left in the mailbox of the judge that was clearly meant to implicate me. Even though the perpetrator of the acts may not be known they can reinforce an inert bias. The other form of a threat is what can be called character assassination. As a prolific writer who feels no intimidation from anyone I will not hesitate to expose what I may view as an injustice. Numerous judges are well aware of this which is appreciated by some who see this action as ensuring integrity by their colleagues. I have participated in a case where a pro se litigant received far different treatment after I joined the proceedings. My comments are not all condemnations – HERE I lauded praises upon Marion County Superior Court judge David Certo and Indiana Supreme Court Justice Dickson. Either way this potential praise or condemnation by myself or a litigant can produce a bias if a judge is not vigilant about this influence.

Bias-free proceedings enhance the likelihood that children will find themselves in the care of the most appropriate caretakers. In the previous segment of this series I addressed the influence of third-party child custody agitators who seek to prolong litigation for their personal gain. Too often these characters are not adept enough to suppress their personal biases or have entered this industry to implement their biases. The opinions of these people based upon their intuitions and guesswork are like black holes; they are only theory, we haven't seen them, and we can't prove their existence. They are the greatest assumption that we can make so we internalize it as fact.

This is the difficulty for the judicial officer who feels ill equipped to make a decision based solely upon his or her own judgment. It is perfectly natural to want to diffuse this responsibility especially when, as a society, we have been conditioned not to accept responsibility. This is apparently what happened in the Moore v Moore case. Judge Welch said in September 2011 when she recessed these proceedings that she wanted the assistance of an independent evaluator and thus Child Advocates Inc., was assigned.

At that hearing I believe that all the necessary evidence had been presented and that a judgment could have been rendered at that time without additional input or delay. Judicial officers are responsible for the prompt and just disposition of matters to which they were assigned. They have the duty to control the movement of cases through the system. The attorneys have a duty to cooperate by being ready to proceed with scheduled matters. Judges should not grant, nor should lawyers request, postponements except for good cause[fn1]. I do believe that Judge Welch failed in this regard as the matter has been continued indefinitely for more than half of the cognitive lives of the children.

Judge Welch disqualified herself from the case earlier this month. The incoming judge assigned to this case is going to be inundated with information. But is this going to be a benefit or a hindrance to making a sound judicial child custody decision?

People in times of uncertainty are generally overconfident based on the availability of information to them. Increased information makes experts more confident but not more accurate. Stock analysts are notorious for this. In the modern era with the internet and a plethora of data about companies and predictions of market analysts earning $1M+ annually you would think that stock picking by professional fund managers would be getting more on target. That has not been the case though. The analysts themselves while expressing 80% confidence in their price targets were only 60% correct.[fn2] Fund managers consistently have underperformed the S&P 500 about 75% of the time from the Great Depression through 2012.[fn3] From the 1970's through the 1990's analysts error rates in predicting company quarterly earnings for the upcoming reporting period actually ticked upward by about 40% as more data became available. My success in stock trading comes from avoiding data and trading on instinct. When Apple recently shot up from the $450's to $466 in a few minutes I sold the shares I had recently bought at $448. When the S&P 500 hit 1520 last week I shorted [selling stock you don't own hoping the price will drop and then replacing those shares at that lower price] the index and then watched the CNBC talking heads that evening saying that anyone short this market is making a bad bet, it is going higher. And lower it went on Wednesday and lower it went on Thursday. I bought back on Thursday three minutes after the S&P 500 hit its low for the week and one point above that low. I do this purely on gut reaction because as I have long known – more information gets in the way of making valid decisions.

This is something lost on most “expert” prognosticators including these child custody evaluators. These supposed oracles are no better at predicting parent-child relationship outcomes than stock analysts are at picking winners nor judges at making decisions solely on their intuitions.

Not everyone is blessed with the extraordinary abilities to make correct intuitive decisions but research across numerous disciplines has continually demonstrated that increased data and analysis does not lead to greater accuracy. Judges are people that posses similar inert qualities of intuition and judgment. I believe that letting judicial officers make judgments without the conflicting and often biased input of outside advisors with varying motives will lead to better child custody outcomes.

[1] STANDARDS RELATING TO TRIAL COURTS § 2.31 (American Bar Association 1992)
[2] Amos Tversky, “The Psychology of Decision Making,” in A. Wood (ed.), Behavioral Finance and Decision Theory in Investment Management, ICFA Continuing Education series, 1995, pp. 2-6.
[3] David Dreman, “Contrarian Investment Strategies: The Next Generation, Simon & Shuster 1998. also; Jim Kramer, CNBC 02 January 2013.

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More information about child custody rights and procedures may be found on the Indiana Custodial Rights Advocates website.

©2008, 2013 Stuart Showalter, LLC. Permission is granted to all non-commercial entities to reproduce this article in it's entirety with credit given.