Judgment Calls: The Judicial Construction and Evaluation of Social Science in Family Law

Kimberly Richman, University of California, Irvine

In this paper, I investigate the ways in which scientific and social scientific knowledge is constructed, framed, and delimited in the law through judicial narratives in child custody cases involving gay and lesbian parents. Family court judges are not equipped or positioned to decide empirical validity as a social scientist would, but take an active part in constructing expertise, evaluating the relevance and legitimacy of social scientific evidence, and ultimately deciding what is valid knowledge and what is not. In order to examine these processes, I draw on literatures involving the nexus of science (particularly psychology and theories of sexuality) and law, the gatekeeping function of judges, and the constitutive nature of law and social life; and employ a qualitative archival analysis of over 200 appellate decisions over the last 50 years and amicus briefs submitted by expert groups in these cases, as well as interviews with current family court judges. This investigation reveals not only the discursive production and re-production of science in family law, but has important practical implications for the practice of law and the use of expert witnesses more generally.

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Updated 05/20/2006