Custody of Infants and Toddlers in Divorce or Separation

An article by Jennifer E McIntosh, PhD, Special Considerations for Infants and Toddlers in Separation/Divorce: Developmental Issues in the Family Law Context, published 27 June 2011 has received significant attention. After reading this article I think it warrants review for what is inclusive and omitted.

McIntosh notes at the onset the age of children relevant for this topic - under five years of age. Additionally she notes that the "emotional and developmental security of the infant" should be considered the "prime and determining elements in custody matters" by family law professionals.

Although there has been significant study of the effects of divorce and separation on school aged children, little has been studied of infants and toddlers. McIntosh admits to such.

McIntosh cites that the first four years of a child's life "is the peak period of attachment formation." Specifically, psycho-emotional development in infancy depends to a great extent upon continuous, predictable, emotionally-available care-giving. The quality of parenting in the first 2-3 years of life are particularly important to healthy development.

McIntosh then cites to three divorce related stressors; 1) parental conflict and violence; 2) diminished quality of parenting as parents cope with conflict; and 3) the effect of repeated separation of the infant from primary attachment figures.

McIntosh then seems to attack shared parenting time arrangements and asks: "under what conditions, and at what points in development does shared-time parenting pose a risk to developmental security?"

She then addresses current research as related to Shared Parenting arrangements. The question posed to the reader generally related to the effects of overnight parenting time and its relationship to the child's attachment to primary caregivers and emotional stress.

For children age 4-5 years research indicates no adverse outcome related to overnight parenting time. Again though, parental conflict is noted as an adverse reaction trigger. For children age 2-3 years who spent 2-3 nights per week with the parent who is not the primary residential parent showed greater problematic behaviours than those who had less overnights. Finally, for those under age 2 problems appeared greater for those who had more overnights when compared to those with less.

McIntosh cites that parents who remain acrimonious and have difficulty in ameliorating this during parenting time transitions add to the difficulties. She then notes that "warm, lively, attuned care-giving interactions between baby and the second parent appear to be central to the growth of attachment security in that relationship."

Before stating her conclusions McIntosh cautions that research into the field of Shared Parenting arrangements on children under five years of age is still in its infancy.

McIntosh concludes that care should be given when considering the parenting time arrangements for children in the studied age group. That parental conflict, inadequate resources and an inability to remain child focused pose difficulties for the child's development and attachment security in Shared Parenting arrangements. Finally, that the developmental resources available to the child should be the primary concern for decision makers.

McIntosh sees the implications for parents, service providers and policy makers as being based upon avoiding having children in the first four years of life exposed to parental conflict and violence. She proposes that separation from the primary attachment figure be for brief periods of time and not expanded until the fourth to fifth years. Overnight stays may be appropriate when convenient for the custodial parent and when the other parent has already been established as a source of comfort and security for the infant and time spent with that parent should foster this. Finally, that the primary consideration be given to the emotional security of the parent.

I think that McIntosh has, unfortunately, approached this subject with a bias and agenda disfavouring the growing acceptance and use of Shared Parenting by parents, practitioners and policy makers. I personally believe that Shared Parenting arrangements are best in most situations and have seen the benefits to the children in many post marital relationships among their parents.

Policy-wise I am often asked, primarily by fathers, to advocate for a mandate for Shared Parenting models in statute and policy such as the Indiana Parenting Time Guidelines. However, I refuse to support such mandates and believe that significant discretion should be left to parents, practitioners and judges in these cases.

With that said I am still resolute that there should be an unbiased presumption during the initial phases of child custody proceedings. To facilitate that there should be a presumption of a Shared Parenting model in all child custody cases followed by specific findings and conclusions consistent with Indiana Trial Rule 52 when a deviation is made from that presumption.

The overwhelming proportion of my comments here are simply anecdotal based upon my vast close and personal experiences with parents, children or families involved in child custody proceedings. This involvement includes such personal experiences as providing child care for the children, life coaching to parents and even living in households for brief periods. Still, I will cite to some material from studies by mental health professionals and researchers. Additionally, although McIntosh doesn't state it overtly I feel that her use of the term "second parent" relates to fathers as does most research in this area. Therefore, I will refer to fathers in this instance as for paternity cases there is already a legal presumption that the father is the "second parent".

I must first argue against McIntosh's contention that the primary focus in custody determinations should be the "emotional and developmental security of the infant". Although that is important and should be a significant consideration I am always looking for unintended consequences in any dynamic as I recently wrote about.

Having heard from many mothers and fathers, particularly their frustrations, I am concerned about the emotional well-being of the parents as well. I have received the middle-of-the-night phone calls from parents claimed that the only thing keeping them going is hope. I have held the crying parents who haven't had the experience of physical contact with their children in months, some not even able to experience communication with the children.

Children do need to develop significant attachments with both parents during these early years. Almost fifty years ago, the path-breaking work of Schaffer and Emerson (1964) provided evidence that the majority of infants formed an attachment to their fathers during their second year. The concept of exclusivity of infant–mother attachment did not reflect the social reality of infants in families. The study relied on maternal reports stating that by 18 months of age 75% of the infants protested separation from their fathers.

I postulate then that it is important to consider the needs of fathers to have meaningful and significant contact with their children so as to reduce the propensity for stress induced mental health issues. It is often the feeling of powerlessness by fathers that lead to frustrations which may be acted upon in negative ways. This is not a father only phenomena though as I have female clients who experience the same agony with their adolescent children.

Although McIntosh makes conclusions based upon the relatively new research she also notes that this research is in its infancy and is incomplete. I would recommend that policies not be based upon incipient research and data.

She goes on to state that a child's separation from the primary care-giver can be detrimental to the child's emotional development and believes that overnights with fathers during the first three years of life is unfavourable. I am curious as to what her thoughts would be about married parents who leave their children with grandparents, nannies or other care-givers on an overnight basis.

In our modern society we have numerous dual professional families where parents leave the children in the care of others who sometimes become secondary attachment figures and, at times, the primary attachment figure. This situation may be less than optimally desirable but it is a reality that is manageable when the parents engage in loving and attentive interactions with the children on a regular basis. Such could also be an effective norm for separated parents and their children.

In studying children at this age it is difficult to accurately assess their feelings and the impact of separation from a primary care-giver as it is difficult for them to articulate, some not even speaking. It is then left to researchers interpretations of behaviours exhibited in a clinical setting or reporting by parents, which may be subjective.

Custody determinations for young children will be extremely fact sensitive and discretion should remain for parents, practitioners and judges to establish the best plan that meets the needs of the children and parents. However, the policy trend that is favouring a presumption towards dual parenting for infants and toddlers should continue.

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©2008, 2011 Stuart Showalter, LLC. Permission is granted to all non-commercial entities to reproduce this article in it's entirety with credit given.