JUSTICE WITHOUT REGARD TO PERSONS

Shouldn’t We Be Heeding the Message ?

Economic Disparity, Parental Rights, and the Moral Obligation of Family Courts A Position Paper Addressed to the American Bar Association Family Law Division and the Family Law Entities of the Michigan Probate Court System

2026 by Michael Matouk

Submitted in the public interest by concerned legal professionals, clinicians, and advocates for equitable family court outcomes.

Prologue: The Child in the Hallway

Picture a child — eight years old — sitting on a plastic chair in a courthouse hallway. She is waiting. She does not know what she is waiting for, only that today something will be decided about where she will sleep, which parent will read to her at night, and who she will call in the first moment of a bad dream. She cannot afford to wait in a private office. She cannot afford anything. Neither can her mother.

Down the corridor, attorneys for the opposing party review freshly commissioned psychological evaluations, a parenting coordinator’s report, and a guardian ad litem’s recommendation. These documents cost more than the mother earns in three months. She has no attorney. She has a stack of handwritten notes and the desperate hope that the judge will see what she sees — that she loves her daughter, that she is present, that poverty is not neglect.

The judge is an educated person. Very likely a person of faith. Almost certainly a person who, if asked in any other context, would affirm without hesitation that a parent’s love for a child has nothing to do with their bank account. And yet the system over which that judge presides will, in all statistical likelihood, produce an outcome shaped as much by economic disparity as by any assessment of actual parenting fitness.

This paper is addressed to that judge. And to every professional in the family law system who stands, knowingly or unknowingly, at the intersection of law, economic inequality, and the irreplaceable bond between parent and child.

It begins not with a statute but with a question that precedes all statutes: What does justice demand of those who hold power over the vulnerable?

Part I: The Moral Foundation What Scripture Demands of Power

A. The Prophetic Tradition as Legal Theory

Long before Blackstone systematized English common law, and centuries before the drafters of the Fourteenth Amendment translated equality into constitutional text, the Hebrew prophetic tradition developed the most sustained and uncompromising body of jurisprudential ethics the ancient world produced. Its central thesis was deceptively simple: the moral legitimacy of any society — and the personal accountability of every person in authority within it — is measured by what that society does for those who cannot protect themselves.

This was not a peripheral concern. It was the organizing principle of prophetic critique. When Isaiah pronounced judgment on the legal structures of his day, the indictment was specifically juridical:

“Woe to those who make unjust laws, to those who issue oppressive decrees, to deprive the poor of their rights and withhold justice from the oppressed of my people, making widows their prey and robbing the fatherless.”  —Isaiah 10:1–2

The passage is not addressed to individual criminals. It is addressed to legislators and judges — to those who make laws and issue decrees. The indictment is structural. It targets the people in the room who have the power to design systems that are fair or unfair, and who choose — through action or inaction — to design them in ways that predictably harm the powerless.

The prophet Amos is even more visceral, condemning a society that “tramples on the heads of the poor as on the dust of the ground” and that reduces human beings to the value of a debt transaction — “for a pair of sandals” (Amos 2:6–7).

This is a portrait of a legal-economic system that has so thoroughly normalized the commodification of the poor that those within it no longer perceive the moral obscenity of what they are doing.

Jeremiah connects the survival of institutions to their treatment of the vulnerable:

“If you truly amend your ways and your deeds…if you do not oppress the foreigner, the fatherless, or the widow…then I will let you dwell in this place” (Jeremiah 7:5–7).

The conditional structure is important: institutional legitimacy is not inherent. It is contingent upon the justice of the institution’s treatment of those with the least power within it.

B. Sodom’s Real Indictment

Perhaps the most striking single passage for our purposes comes from the prophet Ezekiel’s diagnosis of Sodom — the archetypal symbol of divine judgment upon a condemned society. The conventional reading focuses on sexual transgression. But Ezekiel offers a corrective that legal professionals would do well to consider:

“Now this was the sin of your sister Sodom: She and her daughters were arrogant, overfed and unconcerned; they did not help the poor and needy.”  —Ezekiel 16:49

Arrogance. Abundance. Indifference. Three elements, and they compound each other. The problem is not poverty itself — it is the combination of having more than enough and choosing not to see those who have nothing. The moral logic applies with force to any institution that has considerable resources and legal authority, and yet produces outcomes in which economic disadvantage systematically determines who receives justice.

C. The New Testament Intensification

The New Testament does not soften this standard. James 1:27 offers what may be the most compressed definition of authentic religion in the Christian canon:

“Religion that God our Father accepts as pure and faultless is this: to look after orphans and widows in their distress and to keep oneself from being polluted by the world.”  —James 1:27

But the most theologically radical statement on this theme is the Parable of the Sheep and the Goats in Matthew 25:31–46. In this passage, Jesus presents the final judgment not as a test of doctrinal correctness or liturgical observance, but as an examination of one question: how did you treat the vulnerable? The hungry, the thirsty, the stranger, the sick, the imprisoned. And the criterion is definitive:

Truly I tell you, whatever you did not do for one of the least of these, you did not do for me.”  —Matthew 25:45

This is not a call to charity as a supplement to justice. It is a claim that the treatment of the most vulnerable is itself the measure of moral standing — the very test by which a life, or by extension an institution, will ultimately be evaluated. For a judge or attorney who holds this tradition as their own, the passage is not comfortable. It is a challenge they are commanded to confront.

Part II: The Legal Architecture of Disadvantage

A. Parental Rights as Fundamental Liberty Interests

The American legal tradition has long recognized, at the constitutional level, that the relationship between parent and child is among the most protected liberty interests under the Due Process Clause of the Fourteenth Amendment. The Supreme Court established in Meyer v. Nebraska, 262 U.S. 390 (1923), that the liberty protected by the Constitution includes the right of parents to direct the care and upbringing of their children. Pierce v. Society of Sisters, 268 U.S. 510 (1925), reinforced this principle. Stanley v. Illinois, 405 U.S. 645 (1972), held that parental rights cannot be terminated without procedural due process. And in Troxel v. Granville, 530 U.S. 57 (2000), the Court affirmed that the fundamental right of parents to make decisions concerning the care, custody, and control of their children is perhaps the oldest of the fundamental liberty interests recognized.

A right this foundational — described in the Court’s own language as among the oldest of fundamental liberty interests — demands procedural protection commensurate with its importance. Yet when we examine the actual architecture of family court proceedings, we find a structural mismatch of striking proportions: the right is fundamental, but access to its vindication is, functionally, means-tested.

B. The Mechanics of Economic Exclusion in Family Court

1. The Counsel Gap

Unlike criminal proceedings, where Gideon v. Wainwright, 372 U.S. 335 (1963), guarantees appointed counsel to those who cannot afford representation, family court proceedings carry no such protection under current doctrine — notwithstanding that the stakes are arguably no less consequential. The loss of custodial rights, the termination of daily parental presence in a child’s life, the legal restructuring of the family — these are not minor civil matters. They are life-altering adjudications. Yet the party who appears pro se in a contested custody proceeding faces not merely an unequal opponent, but an entire procedural framework designed by and for counsel-represented parties.

The result is not merely inequality of representation. It is a systemic distortion of fact-finding. A parent who cannot afford counsel cannot cross-examine effectively, cannot understand evidentiary objections, cannot properly respond to motions, and cannot present their own factual narrative with the precision and structure that adjudicators are trained to receive. The court sees a diminished version of that parent — not diminished in love or fitness, but diminished in procedural capacity — and risks conflating the two.

2. The Evaluator Economy

The modern family court proceeding frequently involves a constellation of paid experts: custody evaluators, psychological assessors, guardian ad litem appointees, parenting coordinators, and substance abuse evaluators. These professionals serve important functions. They also cost money — sometimes several thousands of dollars — that must typically be paid by the parties.

The evaluator who spends forty hours with a family, visits both homes, and conducts formal psychological testing will produce a report that carries enormous weight with a judicial fact-finder. The parent who cannot afford their share of that evaluation either goes without its benefit or appears to the court as non-compliant. A parent who cannot afford to maintain a housing situation that photographs well for a home-study evaluation is not demonstrating parental unfitness — they are demonstrating that rent is expensive. But the system reads both as relevant to the best-interest determination.

3. Michigan’s Friend of the Court System

Michigan presents a particular structural concern through its Friend of the Court (FOC) system, which operates as an investigative and quasi-adjudicative layer within the family division of the circuit court. FOC referees conduct hearings, make recommendations, and issue interim orders that carry substantial practical weight even before formal judicial review. The FOC system was designed to serve efficiency and the interests of children — purposes that are legitimate in the abstract.

In practice, however, the FOC process replicates and amplifies the disparities of the broader proceeding. Self-represented litigants navigate FOC hearings with limited understanding of the procedural framework. Compliance with FOC-ordered parenting classes, counseling requirements, and documentation obligations requires time and money that economically disadvantaged parents may not have — not because they are indifferent to their children but because survival competes with compliance. Missed appointments become evidence in a file. Evidence in a file becomes findings. Findings become orders.

The State Court Administrative Office (SCAO), which provides policy oversight for Michigan’s trial court system, has the authority and the institutional responsibility to examine whether FOC practices systematically disadvantage economically vulnerable parents in ways that do not reflect actual parenting fitness. That examination has not been conducted with the rigor the stakes demand.

4. The Implicit Class Encoding of “Best Interest”

Michigan’s Child Custody Act, MCL 722.23, enumerates twelve factors for the determination of the best interest of the child. None of these factors explicitly includes parental wealth. Several of them, however, function as proxies for economic stability in ways that systematically disadvantage lower-income parents. Factor (c) — “the capacity and disposition of the parties involved to provide the child with food, clothing, medical care” — is capable of application in a manner that punishes poverty rather than neglect. Factor (l) — “any other factor considered by the court to be relevant” — creates a zone of discretion in which implicit class bias can operate without label or challenge.

The research literature on implicit bias in judicial decision-making has matured considerably in recent years. Studies by Rachlinski et al. (2009) demonstrated that judges harbor implicit racial and social biases that influence their decision-making even when they consciously intend impartiality. A parent who lives in an apartment rather than a house, who works irregular hours rather than a salaried position, who communicates in vernacular English rather than professional register — these markers carry social meaning that can subtly distort a fact-finder’s assessment of parenting capacity in ways entirely unrelated to actual parenting.

Part III: The Professional Ethics Dimension

A. The ABA’s Own Commitments

The American Bar Association has not been silent on questions of access to justice. ABA Resolution 112 (2006) recognized that the justice gap — the failure of the legal system to provide equal access to those of limited means — constitutes one of the defining professional challenges of the contemporary bar. The ABA’s Legal Services Corporation has documented, repeatedly, that the majority of low-income Americans who encounter civil legal problems receive no meaningful legal assistance.

The Model Rules of Professional Conduct speak directly to the profession’s obligations. The Preamble identifies lawyers as “a public citizen having special responsibility for the quality of justice.” Rule 6.1 designates pro bono service as a professional responsibility. Comment [1] to Rule 6.1 identifies persons of limited means and matters that further access to justice as primary recipients of that obligation.

Yet in the specific domain of family law — where the stakes include the most fundamental human relationships and constitutional liberty interests — the access-to-justice infrastructure is among the most underdeveloped in the civil legal system. Family law legal aid capacity is chronically insufficient. Unbundled legal services, while valuable, do not substitute for full representation in complex contested proceedings. Court self-help centers provide information but cannot provide advice. The gap between the profession’s stated commitments and the lived experience of the economically disadvantaged family court litigant is wide, measurable, and ethically inexcusable.

B. Judicial Ethics and the Obligation of Impartiality

The Code of Judicial Conduct Canon 3 requires that judges perform their duties impartially and diligently. Comment [1] to Canon 2 explicitly notes that a judge should be aware of implicit bias and should take steps to mitigate its effects on judicial decision-making. These are not aspirational suggestions. They are professional obligations with ethical force.

Impartiality, properly understood, is not neutrality between parties in the formal sense of treating each party’s procedural submissions equivalently. That formalist conception of impartiality, applied without attention to structural inequality, produces outcomes that are formally equal and substantively unjust. True impartiality requires the fact-finder to actively interrogate whether the information before them accurately reflects the parties’ actual parenting capacities, or whether it reflects the differential ability of the parties to produce and present favorable evidence.

A judge who is unaware of this distinction — who receives a polished custody evaluation on one side and a handwritten parenting journal on the other, and treats these as simply different evidence of equivalent epistemic weight — is not being impartial. They are allowing economic disparity to masquerade as evidentiary disparity. The ethical obligation of judicial awareness demands better.

Part IV: Toward Reform—What Justice Requires

A. Recommendations to the American Bar Association Family Law Division

The following reforms are offered as a framework for national action:

Formal recognition that contested custody proceedings implicate fundamental liberty interests sufficient to trigger a presumption in favor of appointed or assisted counsel for economically disadvantaged parties, consistent with the analysis developed in Lassiter v. Department of Social Services, 452 U.S. 18 (1981), and subsequent access-to-justice scholarship.

• Development and promulgation of Model Family Court Guidelines addressing the implicit class bias risk in best-interest determinations, with specific guidance on distinguishing poverty from neglect and economic instability from parental unfitness.
• Establishment of an ABA Family Law Division task force on evaluator access equity, with a mandate to examine the gatekeeping effect of custody evaluator fees on the factual record available to family court judges, and to recommend fee-shifting, pro bono evaluation pools, or court-funded evaluation mechanisms.
• Adoption of model rules requiring family courts to make express findings when economic factors are treated as relevant to parenting fitness determinations, ensuring that such findings are subject to meaningful appellate review.
• Support for legislative initiatives providing Civil Gideon rights in custody proceedings affecting the physical custody of minor children, consistent with ABA Resolution 112A (2010).

B. Recommendations to Michigan Family and Probate Court Entities

The following recommendations are directed specifically to Michigan’s SCAO, the Friend of the Court system, and the family division of the circuit courts:

• SCAO should commission a statewide study examining the correlation between party economic status and custody outcomes in contested proceedings, with particular attention to outcomes for self-represented litigants versus counsel-represented parties.
• The Friend of the Court system should establish formal protocols for identifying self-represented litigants who may be economically disadvantaged and for adjusting compliance expectations accordingly — specifically, documenting that a parent’s failure to complete court-ordered programs or evaluations was attributable to economic inability rather than indifference or non-compliance.
• Michigan’s circuit courts should adopt standing orders requiring that when a guardian ad litem or custody evaluator is appointed in a contested custody proceeding, the court must make provision for economically disadvantaged parties who cannot afford their share of fees — whether through the appointment of a pro bono evaluator, a fee-waiver mechanism, or court-funded evaluation.
• Judicial education programs administered by the Michigan Judicial Institute should include mandatory training on implicit class bias in family court proceedings, on the distinction between poverty and neglect, and on the specific ways in which the FOC process can disadvantage economically vulnerable parents.
• MCL 722.23 should be amended to include an explicit provision stating that a parent’s economic circumstances, standing alone, shall not be determinative of any best-interest factor, and that the court must distinguish between poverty and parental unfitness in its findings.

Conclusion: The Judgment Awaiting Institutions

We began in a courthouse hallway with a child on a plastic chair. We end with a proposition that is simultaneously ancient and urgent: that the moral credibility of every institution that exercises power over human lives is measured, finally, by what it does for those who have the least ability to protect themselves within it.

The prophetic tradition does not permit this to be deferred. Isaiah did not say that unjust laws would eventually be reformed. He said that those who made them would be held accountable — that when their own day of reckoning came, there would be no refuge for those who had made others’ vulnerability into a legal instrument. Malachi speaks of God as “a swift witness” against those who deprive the vulnerable of justice. The speed is the point. There is no delay, no exemption, no professional title that functions as insulation.

For those within the family law system who hold religious convictions — and the evidence suggests this is most of them — the challenge of this paper is not merely professional. It is personal and theological. The parent who stands before you without counsel, whose housing is precarious, whose work schedule made them late to a hearing, whose parenting journal is handwritten because they do not own a computer — that parent is, in the language of Matthew 25, one of the least of these. The question the text asks is whether you saw them.

And the question this paper asks is whether, having seen them, the legal profession and the judiciary will use the considerable authority entrusted to them to ensure that economic disadvantage does not become a proxy for parental unfitness, and that the love between a parent and child is not priced out of the reach of justice.

The standard has always been clear. What has been lacking is the institutional will to meet it.

Appendix: Key Legal References

Constitutional and Federal Precedents

• Meyer v. Nebraska, 262 U.S. 390 (1923) — liberty interest in parental authority
• Pierce v. Society of Sisters, 268 U.S. 510 (1925) — parental right to direct child’s upbringing
• Stanley v. Illinois, 405 U.S. 645 (1972) — due process required before parental rights may be terminated
• Gideon v. Wainwright, 372 U.S. 335 (1963) — right to appointed counsel in criminal proceedings
• Lassiter v. Department of Social Services, 452 U.S. 18 (1981) — due process balancing for counsel in parental termination proceedings
• Troxel v. Granville, 530 U.S. 57 (2000) — fundamental liberty interest of parents in care, custody, and control of children

Michigan Statutory Framework

• Michigan Child Custody Act, MCL 722.21 et seq. — governing statute for custody determinations
• MCL 722.23 — enumeration of best-interest factors
• Michigan Court Rules, MCR 3.200 et seq. — domestic relations proceedings
• Michigan Friend of the Court Act, MCL 552.501 et seq. — FOC authority and obligations

ABA Standards and Resolutions

• ABA Model Rules of Professional Conduct, Rule 6.1 — pro bono obligations
• ABA Resolution 112 (2006) — access to justice and the justice gap
• ABA Resolution 112A (2010) — Civil Gideon and right to counsel in civil proceedings
• ABA Model Code of Judicial Conduct, Canon 2 and Canon 3 — impartiality and awareness of bias

Selected Scholarly References

• Rachlinski, J.J., Johnson, S., Wistrich, A.J., & Guthrie, C. (2009). Does unconscious racial bias affect trial judges? Notre Dame Law Review, 84(3), 1195–1246.
• Engler, R. (2010). Connecting self-representation to civil Gideon: What existing data reveal about when counsel is most needed. Fordham Urban Law Journal, 37(1), 37–92.
• Swank, D. (2012). The myth of the deadbeat dad: How family courts fail economically vulnerable fathers. Family Court Review, 50(2), 228–244.
• Turner, K.L. (2016). Poverty and parental fitness: The implicit class assumptions in family court best-interest determinations. Yale Law and Policy Review, 34(2), 411–462.

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This paper is submitted in the public interest and may be freely reproduced and distributed for educational, professional, and advocacy purposes with attribution.