Immigrant Customs a Special Challenge for U.S. Judges

When Ahmad and Sharifa Shaban married in 1974, the conditions they agreed to were standard for Cairo newlyweds: an oath that the bride was a virgin, a $30 dowry, and a declaration that the union was in accordance with “Almighty God’s Holy Book.”

By the time the Shabans divorced 24 years later, the gastroenterologist and his wife were living in a posh Southern California neighborhood, had two kids and $3 million. The couple had Americanized, but the wedding document they signed all those years ago was pure Egypt.

And that’s where the culture clash began.

He flew in an expert, who said the document was a prenuptial agreement under Egyptian law and that the couple’s assets should be split up by an Islamic authority--a move his lawyers thought would get him a better deal.

She hired an American lawyer who laid it out a little differently. “But see, you’re not in Egypt,” the attorney said.

With immigration to the United States higher in the past decade than at any time since the 1930s, cases like the Shabans’ have become daily fare in family courts--intimate battles balancing culture, family values and law in one public forum.

But trying to reconcile U.S. law with immigrants’ ideas about everything from child discipline to dividing assets can be tricky.

Until they were pressed to do so in the last five to 10 years, family courts made few allowances for their increasingly international constituents. There was no push for legal forms in multiple languages, translators or experts on foreign culture and family law.

Then the population started to change. According to the Census Bureau, more than 10% of Americans are now foreign-born--and more than one-third of that group came here in the 1990s.

Now family courts are starting to try to accommodate immigrants, even as advocates criticize the system for not keeping up.

Among other steps, there is more cultural-literacy training for judges, a push for certified translators, and more research about culture in court from groups like the American Bar Assn.

“We realized most people who are judges and attorneys are not like those people who end up in court,” said the ABA’s Karen Aileen Howze, who writes guides for court workers on cultural issues.

In the past, judges might have simply made do without translators, for example--but not today, said Justice Jeremy A. Stahlin of the Probate and Family Court in Suffolk County, Boston.

“I think there’s an awareness that it’s unacceptable, totally unfair and unjust” for different populations to get unequal levels of service from the courts, he said.

This shift wasn’t prompted solely by demographics, but also by a wider discussion in society in general: What are American values in an increasingly diverse nation?

“We don’t know what it is to be an American because we’re made up of so many groups, people are afraid the country will disintegrate,” says Alison Dundes Renteln, a professor at USC who studies cultural defense in family and criminal cases.

There are no hard figures on how often cultural issues arise in family courts these days, but people who work there say it is frequent.

“It’s one of the biggest issues,” said Judge Mary Sheffield of Phelps County, Mo. Phelps recently stepped down as president of the National College of Probate Judges, a group that routinely handles family issues, including estate administration.

The impact of the country’s growing ethnic diversity was put at the top of the agenda recently by several prominent judicial groups, including the State Justice Institute, a federally funded think tank for judges and the National Center for State Courts, both in Washington.

But policy discussions can only go so far. In many areas of family court law, judges have wide discretion, using their own cultural compasses to navigate broadly worded statutes, such as those forbidding abuse or neglect.

Dealing with litigants from other countries brings new challenges to the job:

* When deciding custody cases, should judges take into consideration the stigma that children in some places, including parts of West Africa, face when they are in the care of their mother alone?

* In nations from Japan to Guatemala, parents who are viewed as healthy and nurturing share their bed with their young children, while some American judges consider that unwholesome. How can judges reconcile those views?

* At what age can children be left home alone--and for how long?

“Sometimes, families leave their children with children who they consider old enough to baby-sit, and then they wind up in court because you left an 8-year-old with an infant,” Sheffield said.

Working as a probation officer and clerk in the Middlesex County family courts, just outside of Boston, Angelo Gomez Jr. knew judges who would give girls under the legal marriage age of 18 permission to marry.

Some judges would allow girls as young as 14 to marry, saying it was a matter of cultural custom. Other judges wouldn’t give their OK; they believed the girls were squandering their opportunities.

Although judges are allowed to grant exceptions to the marriage age limit, Gomez says, “the discrepancies between the judges is amazing.”

Should culture figure into a judge’s decision? Court workers from attorneys to psychologists to judges themselves say the goal should be an educated judiciary--which can recognize the cultural context of people’s actions and take that information into account.

One recent afternoon in Bronx Family Court, a woman from Ivory Coast was desperately trying to get her children brought back from that West African country so she could have a custody trial against her husband, who she claimed was abusive. The woman was having trouble persuading the judge that the reason her own relatives in Africa wouldn’t help her retrieve the children was because they were ashamed she had left her husband.

“It’s hard for a judge to understand her powerlessness,” said Dorchen Leidholdt, the woman’s attorney and the director of a battered women’s advocacy program in New York City called Sanctuary.

Judges from Missouri to Massachusetts concede that there are gaps in their cultural understanding, and they support state efforts to get them training.

“I’m not sure any of the judges here really know what the cultural differences are--there’s a big problem. But it’s just a matter of getting into school and learning,” said Judge Haywood Barry, who recently retired after 24 years working on family issues in southeastern Tennessee.

States in recent years have been offering more cultural diversity courses at judge-training conferences. The sessions can explain the traditions of an immigrant group that is growing in a particular region, or they can answer judges’ cultural questions.

Tiffany Roper, a child advocate near the Mexican border, says she sees the ramifications of an uneducated judiciary all the time.

Some judges consider immigrant homes unstable because cousins and uncles come and go, she says. They’ll hint at problems like drug use, for example, in custody cases.

“They’ll say, ‘There’s a lot of traffic coming in and out of the home, if you know what I mean,’ ” says Roper, co-director of the Children’s Rights Clinic at the University of Texas law school. In reality, she says, extended family members are as welcome as immediate relatives in Mexican homes.

In the Southern California divorce case, judges found the Egyptian wedding document too vague and said putting the case in a religious official’s hands would not guarantee compliance with California law. But Dr. Shaban’s attorneys said the judges had no understanding of Islamic law, which they argued would guarantee a fair settlement for all under California statutes.

One judge wrongly said the wedding document was in Persian, not Arabic; another suggested the physician had essentially purchased his wife, which Shaban said reflected “nothing but . . . ignorance.”

But cultural ignorance can cut both ways. Many newcomers don’t understand the U.S. court system, or have been raised in places where judges are symbols of terror.

“What people expect affects what they ask for,” says Leslye Orloff, an immigration law specialist at the NOW Legal Defense and Education Fund.

The bottom line, many judges say, is that people who live in America have to follow American rules.

“I’d try to recognize if someone has come from a different cultural background and grew up with a different idea of the norm,” says Stahlin. That would help put the person’s behavior in context, he says, but it probably wouldn’t change his ruling.

That’s what happened in the Shabans’ case.

The marriage document may have been a prenuptial in Egypt, but county and state appeals courts agreed that it wasn’t specific enough to be one under state law. Sharifa Shaban was ultimately awarded the standard share of a divorce in California, 50%.

In U.S. dollars, that’s $1.5 million.