Wednesday, July 13, 2011

Zero to Three: Parenting Issues and Parenting Plans For Young Children My ABA Teleseminar materials for 7/21/11 with Aaron Robb

Zero to Three: Parenting Issues and Parenting Plans For Young Children

We open with three disclaimers:

We will not address the evidentiary adequacy of child custody evaluations, research bearing on custody issues performed by mental health professionals, or the adequacy of the social science underlying them.[1]

We are also will not address, in other than a general way, the efficacy of custody/time-share orders as a cost-effective way of managing risk in parenting.[2]

Finally, throughout this topic we are going to be speaking about generally healthy families. The vast majority of cases that attorneys will encounter will transition from their pre-divorce lives into their post-divorce co-parenting roles with minimal disruption. Serious consideration needs to be given to more restrictive parent-child contact in cases with violence, substance abuse and untreated serious mental illness.[3]
 
A. DEVELOPMENTAL STAGES AND NEEDS OF YOUNG CHILDREN (FOR LAWYERS AND OTHER DUMMIES)

Theory
A basic understanding of child development is critical for attorneys and their clients as they attempt to craft parenting plans for young children. There are multiple theories of child development, each providing differing levels of insight, empirical validation, and comprehensiveness. Each theory provides different breakdowns of various ages and developmental milestones, tasks, or challenges that the child faces. This section is intended to be simply a brief and very basic introduction to the major theories and prevailing insights in cognitive and intellectual functioning issues in child development. For further detail we suggest reading:
· The First 12 Months of Life by Frank & Theresa Caplan
· Infancy: Infant, Family, and Society by Alan Fogel
· Blackwell Handbook of Infant Development edited by J. Gavin Bremner & Alan Fogel (the second edition of this book, over 1100 pages in 2 volumes, was scheduled for release in September 2010)
Freudian Development
The majority of programs that teach Freud’s psychoanalytic theory of development do so primarily in a historical context as, frankly, it is simply not that useful in working with children. Freud was primarily interested in explaining adult neurosis as he believed that adult personality stemmed from the conflict between early sources of pleasure and the demands of a social reality which forces us to suppress our pleasure-seeking urges. Contemporary neo-Freudian psychoanalytic theorists have de-emphasized issues of sexual instincts and focus more on cultural expectation, however compared to other views on development even neo-Freudian approaches offer little utility in practice.
Erik Erikson (1902 – 1994)
Erikson offered a psychoanalytic theory of development that focused on the psychosocial aspects of the various stages of human development. Erikson viewed all of human development as an unfolding process throughout the life cycle, rather than as something that stops in puberty, and that at each stage of development there are tasks that have to be accomplished; it is how well one accomplishes those tasks that determines how healthy their development will be. While these tasks are sometimes referred to as crises, crisis does not equal catastrophe for Erikson, rather it is a turning point for enhancing one’s potential (or not).
Ericksonian
Stage Name
Age
Issues
Trust vs. mistrust
Infancy (first year)
Basic needs met by responsive, sensitive caregivers. Feeling minimal fear of the future. Trust in infancy sets up the lifelong expectation that the world is a good place.
Autonomy vs. shame and doubt
Infancy (second year)
Realizing their will. Must have sufficient room to explore own capabilities without overly harsh punishment or excessive restraints.
Initiative vs. guilt
Early childhood (preschool years)
Develop purposeful responsive behavior to cope with day to day challenges. Avoiding excessive anxiety; need sense of accomplishment. Increasing sense of responsibility and self control.
Jean Piaget (1896 – 1980)
Piaget approached human development from a cognitive approach, examining the framework of children’s conscious experience rather than the psychoanalytic focus on unconscious motivations. From birth Piaget observed that human beings engaged in assimilation of new information into their existing knowledge, and by adjusting their actions based on this new information they accommodated to this new understanding. Newborns reflexively suck everything that touches their lips, but after several months of assimilating such experiences they develop clear preferences (such as a bottle or pacifier to suck on over a blanket or rock) in accommodation to what they have learned.
Piaget’s stages are also qualitatively different from one another; the child’s thinking as they enter each stage is more advanced. It is not merely that they know more (although most children’s fund of general knowledge is also growing rapidly) it is that they can think about things differently.
Piaget
Stage Name
Age
Process
Sensorimotor
Birth to 24 months
Starts with instinctive actions at birth and moves to symbolic thought. Infants construct an understanding of how the world works by coordinating sensory experience with physical objects (including parents).
Children begin to develop what is generally known as an “internal working model” of the world that they expand on as their experiences grow. Children may not recall exact experiences, but emotional experiences (both positive and negative) are part of the sensory world they are learning to adapt to.
Preoperational
2 to 7 years
Words and images begin to be used symbolically to represent the world. The explosion of language between age two and three is profound, and language assimilation continues at a rapid pace in this stage.
They cannot take on others’ perspectives (egocentricity)
Cannot do mental manipulations (“operations”) even though they can use symbolic representations such as words, pictures, and signs.
Practical child developmental issues
Infants (birth to 9 months)
w Learn at a rapid rate – respond differently to different parenting styles.
w Form attachments (plural) – children begin to form reciprocal relationships with parents, grandparents, and other caregivers.
w Need both parents regularly involved – they have limited capacity to remember people and things, including an absent parent.
w Need predictable, calm routines – infants can remember emotional upsets, even if unable to process their context.
w Competent caregiving – i.e. caregivers capable of recognizing signals for food, comfort, play, space, sleep, etc. and responding appropriately; also caregivers have provided for appropriate equipment such as cribs, car seats, diapers, etc.
w Special considerations for breast feeding – multiple routes to dealing with this issue when being raised between two homes, just as working women have dealt with breast feeding and daycare.
w General recommendations:
· Multiple contacts during the week with each parent.
· Consistent schedules between each home when possible.
· For cases with two involved caregivers, include overnights with each parent – aids in forming relationship, learning to meet needs, and sharing parenting burden. Also results in no extended separation from either parent.
· A parent who has not been a caregiver previously will need to develop a mutual relationship with the child over time.
· “Stair step” plans are often recommended for strengthening both skills and relationship; which “step” each parent starts on is often a factor of the pre-litigation caregiving arrangement.
w Good communication is essential for the child. Use a log or other method for monitoring daily issues.
Babies (9 to 18 months)
w This is a transitional period between infant and toddler. Rapid changes in motor skills, communication, and expression.
w There is a continued need for consistent routines. Children can be fearful as they adjust to a new caregiver, but the good news is transitions to familiarity are rapid. Even for intact families this can be seen in the introduction of nannies, day care, etc.
w Children may dislike either parent departing – this is often misinterpreted by divorcing couples as the child “not wanting to go with the other parent.” Generally this is the wrong interpretation.
w General recommendations:
· Each parent should be knowledgeable of and involved in the child’s routines (again, to promote consistency for the child).
· Ongoing frequent contact. Separations of 3 to 4 days at the most are generally recommended. Many children this age in healthy nuclear families spend their first weekend at grandparents, etc. with no adverse results.
· Continued communication between parents and other caregivers is essential.
w The same caveats apply if a parent has not been a routine caregiver in order to transition into that relationship.
w Children aged 12 – 18 months are most at risk for separation anxiety. Remember, this may apply to more than one parent – the child may feel separation anxiety any time a parent leaves if the child has a sense of attachment to that parent. Some children may never display separation anxiety with either parent.
Toddlers (18 to 36 months)
w Continued rapid physical and emotional changes.
w May become more fearful of separations – “clingy” with one or both parents.
w If children are driven between homes (rather than exchanges at daycare) it may be easier if the parent they are with drops them off at the other parent’s home. This elicits less of a sense of leaving one parent, as of joining the other.
w These children can be very sensitive to tension in their parents’ relationship as they are developing more social awareness
w General recommendations (again, assuming involved caregivers and no need to stair-step one parent’s involvement):
· Overnights with each parent spaced throughout the week
· Still no more than 2 to 3 days separation between contacts with either parent.
· Keep reminders of the other parent, siblings, etc. in the child’s room, such as a family photo or picture boards.
· Continued consistency and communication lead to best outcomes.
w Children still do not have adult concepts of time and may not understand prolonged absence of a parent.
B. "WHAT INFORMATION SHOULD WE BE LOOKING AT?” – EVALUATIONS AND EVIDENCE REGARDING PARENTING AND YOUNG CHILDREN
More than half the children who experience divorce do so by age six, and of those three quarters of them are younger than three years of age.[4] Yet by and large the issue of what factors should be considered in crafting parenting plans for these children has been focused on the debate between various theoretical camps on whether children should have overnight stays with both of their parents. The reality is that than even as far back as the late 1980s a third of children younger than two in separated and divorced families do spend overnight time with both parents[5],[6] and even for those situations where children spend no overnights with one of their parents they may still be spending time being parented by both their mother and father. Empirical literature has provided some insight into the conditions under which children fare best when being cared for between two homes, and herein we highlight the most salient pieces of that literature.
There will be a fundamental difference between the sorts of data and evidence which the Court should be looking at (and which the Court may seek assistance of evaluators and other mental health professionals in gathering) in these cases and in cases involving older children.
There will, by definition, be significantly less information available as to the child’s relationship with either parent.
The “history” will be shorter: these are, by definition, children under three.
The sorts of information that the attorney, and the Court, will want from mental health professionals will be different:
It will be necessary to “steer” judges and MHP’s towards gathering and considering the most relevant information.
The techniques of data-gathering which are appropriate for MHP’s to use may not be those which judicial officers think of as “standard” for CCE’s. There will not be much “interviewing” or psychometric testing of the child, even for a particularly precocious three-year-old.
The evaluation process may need to be directed much more specifically towards the parents’ parenting skills, and their current and predicated future interaction, and much less toward standard assessment of their respective interaction with the child.
Specific criteria to consider in parenting plans for children under three[7]
1. Attachment, or better stated: the reciprocal connectedness between parents and children
2. Pre-Divorce distribution of parenting time and responsibilities
3. Child’s age and temperament
4. Parental conflict and communication
5. Parental anxiety and lack of trust
6. Parents’ ability to implement a consistent schedule
7. “Traditional” parenting time evaluation criteria
1. Attachment, or better stated: the reciprocal connectedness of parents and children
A caution on “attachment” and “bonding” as used in the courtroom
Over the years much has been written regarding “attachment” and “bonding” of infants and parents, particularly with a focus on the infant-mother dyad. Unfortunately much of this research has been misapplied in the gender polemics of the divorce courtroom to the point where there is often an argument over “if” a child has bonded or formed attachments to their parents, rather than focusing on the type of attachments the child has formed and the quality of the caregiver connectedness to the child.[8] As Solomon & Biringen (2001) note,
“Only under extreme environmental circumstances (e.g., experiences in orphanages, complete lack of time with a caregiver) do infants fail to develop attachments. […] in intact families, infants show evidence of attachment to fathers despite the fact that fathers often spend very little time interacting with them.”[9]
One of the early pioneers in attachment research, Mary Ainsworth, noted that even in situations where infant contact with fathers was irregular due to fathers not residing in the same home as mothers children were clearly attached to their fathers by one year of age.[10] Although many researchers would later go on to focus their study on infant-mother relationships, the idea that children form only one such attachment relationship (also known as monotropy) has been empirically shown to be inaccurate through more than 40 years of study. Likewise exaggerated issues regarding “bonding” with infants, as if they were ducklings who needed to imprint on a single guiding figure or who would be irreparably harmed if there was any early disruption in routine, are fabrications of well meaning providers rather than empirical reflections of actual human development.[11]
Attachment is also not a single concept, but one that involves several differentiated types with multiple suboptimal or unhealthy categories. While one hopes for a “secure” attachment type, “avoidant” “anxious/ambivalent” “resistant” and “disorganized” attachment are terms used to refer to unhealthy dependency, indiscriminate emotional neediness and other behaviors that are considered signs of poor parent-child interactions. Unfortunately the categorization of these subtypes is generally done in a laboratory setting under controlled circumstances, rather than in settings that are useful to the court.[12]
Nor is attachment a fixed state. Divorce is a time where, even with amicable situations, there is likely going to be ongoing disruption for children in their caregiving arrangements.[13] While a child may have developed a healthy (secure) attachment to a caregiver, if the caregiver becomes impaired due to the distress of the end of a marital relationship or is then absent for a long period of time that attachment may shift. Conversely on a positive note, a child who is newly exposed to an absent parent that they have had little to no contact with may develop that sense of security and a healthy attachment.
The fact that outdated and inaccurate conceptualizations persist, and are referred to as such in order to disabuse people of them[14] is a testament to our search for simplicity in understanding complex human relationships. There are also profound limitations to the use of “attachment” and “bonding” as they are narrowly conceived in the developmental literature, where they refer to specific security-seeking behaviors on the part of the child, and the interplay between the needs of the child and the responsiveness of caregivers. Arredondo and Edwards (2000) argue that “the concept of reciprocal connectedness takes better account of the child’s overall neurodevelopmental and emotional needs.” [15] Their use of the term “reciprocal connectedness” is defined as
“a mutual interrelatedness that is characterized by two-way interaction between a child and an adult caregiver and by the caregiver’s sensitivity to the child’s developmental needs. The concept is more useful than ‘attachment’ to the courts because it describes a child’s requirements for healthy neurobiological, social, and emotional development and distinguishes them from simple dependency (security seeking).”
Clearly the risk is highest when dealing with a young child who seeks security from an inattentive or disinterested caregiver. The quality/type of the child’s attachment has been reliably associated with the quality of parental behavior[16] and relationship between negative parent-child relationships and problematic child outcomes clearly demonstrated,[17] thus further reinforcing that it is not just the child’s attachment but the reciprocal nature of the interactions that should be assessed.
Practical considerations in what to look for
· Who does the child appear to be connected with and seek attention from?
· Does the child display a healthy array of multiple attachments, or does the child appear to have impaired socialization (i.e. primary care by a single stay at home parent with limited social involvement)?
· What is the frequency of various interactions such as affectionate touching or soothing, spontaneous anticipation of the child’s needs or desires, and empathic responses to the child’s needs for attention?
· Does the parent seek out opportunities to interact with and care for the child, or is child care something that is “farmed out” to others, even when the parent could be involved with care?
· Does the parent display an ability to supportively set limits and redirect the child? Studies of child outcomes with divorced parents clearly reflect that children do better with warm, authoritative parenting where children are encouraged to both explore and develop, as well as provided boundaries for their protection and safety. [18]
2. Pre-Divorce distribution of parenting time and responsibilities
Very young children appear to benefit most from parenting plans that resemble their pre-separation contact patterns.[19] This implies that changes to a child's contact schedule, if they have had limited contact with one parent, should be gradual in order to build and develop that relationship, rather than creating a jarring change for the child if that is not necessary. Needless to say this is unfortunately unavoidable for many families where parents often have to change/increase work schedules due to the costs of divorce, reach out to additional social supports and make other adjustments in their parenting time arrangements. Special attention should be paid to the reasoning used by parents (often re-entering the workforce, or forced to change their work schedules due to the loss of the caregiving support of their spouse) who are willing to enroll a child in daycare for several hours a day while the parent attends to necessary work-related tasks, but who are resistant to allowing the other parent to care for the child.
3. Child’s age and temperament
Most people are familiar with the concept of the “easy” baby or the “fussy” baby. Simply put, children are born with different innate personal characteristics. There will be differing goodness of fit among different parent-child combinations. Some children will respond with sanguine ease to a move to a new apartment, where others will display profound upset at the most minor change in routine. Likewise this ties in to the issue of reciprocal connectedness above, as a somewhat less than stellar parent may find themselves blessed with a child who is easily adaptive, while at times better skilled and more attentive parents may have to contend with a child with a choleric disposition. Careful consideration must be given to the fit between the temperament of the child to what is being proposed in the parenting plan.
In combination with temperament, the child’s age may play a strong role in how well they respond to periods of separation from various caregivers. Anxiety regarding strangers peaks for young children between the ages of 8 and 12 months; anxiety regarding separation from a caregiver peaks between the ages of 12 and 18 months, although there will be children who display neither of these responses.[20] Regarding the first age-related issue, it may be helpful for children that age who are in the process of developing a relationship with a new caregiver to have more supportive introductions to the child. Even when it is not possible for the parent the child is already familiar with to help introduce the child to their other parent (often due to the adult conflicts precipitating involvement with the courts) exposure of the child to the other parent through time with familiar relative caregivers and the child, or familiar daycare staff and the child, will help rapidly diminish stranger anxiety. Regarding the second age-related issue, separation anxiety poses one of the most challenging paradoxes for divorced parents of young children: the child may experience distress at being away from either parent. Young children have a poor concept of time, and based on this well-established principle Lamb and Kelly (2001) recommend more frequent transitions of the child between caregivers, as that minimizes the time the child spends away from either caregiver.[21] They also note that children’s lack of time sense, combined with very young children’s lack of understanding that others continue to exist even in their absence and the resulting difficulty in dealing with extended separations has been “widely applied to decisions regarding separations from mothers, and there is no evidence that it does not and should not apply equally to separations from fathers.”
4. Parental conflict and communication
Repeatedly we have seen that the single biggest predictor of outcomes for children of divorce is parental levels of conflict.[22] In their meta-analysis of research regarding children’s post-divorce adjustment, Whiteside and Becker noted this connection clearly:
“Positive, supportive cooperative co-parenting behaviors are part of a pattern associated with positive child coping. Negative, hostile behaviors are part of a problematic, destructive pattern that leaves children at risk.”[23]
Likewise, when looking at developing healthy attachment patterns researchers have noted that low communication between parents about the child was associated with negative outcomes for the child.[24] This impact was seen in both intact marriages and in separated families, and thus appears to exist separate from the conflict associated with divorce and custody litigation. Therefore while parents may need to distance themselves from discussing adult issues with each other due to the litigation, it remains critical that they communicate regarding the child’s needs and status.
5. Parental anxiety and lack of trust
While anxiety and lack of trust may underlie parental conflict and communication issues, it is, in and of itself, an area of concern for children’s adjustment. If there is a primary parent with a high level of anxiety or insecurity regarding the child's time with the other parent the child may in turn also feel a reduced sense of security with their other parent.[25] This vicarious insecurity is problematic on multiple levels, especially when it exists in the absence of any identifiable deficiencies in the other parent's caregiving skills or relationship with the child. When such anxiety occurs in the face of clear information about a positive relationship with and the clear positive parenting skills of the other parent it raises concerns for either manipulation[26] or an underlying parental dysfunction [27] that should be closely examined.
6. Parent ability to implement a consistent schedule
In their research regarding parenting time schedules Pruett, Ebling, and Isabella (2004) looked at the issue of what actually is important in children’s positive outcomes under various conditions, rather than simply abstracting from developmental literature.[28] Their research indicated that from both mother’s and father’s reports children who had a consistent caregiving schedule had fewer social problems and less anxious/depressed behavior.
A note on overnights – the Pruett, et. al. study was designed to provide actual data on how young children responded to overnights in parenting plans, rather than relying on differing interpretations of developmental literature and studies that were at best proxies for the issue of overnights. In their conclusion they noted that their results showed
“it is not overnights in and of themselves that are most important. Our findings underscore the importance of taking into account the circumstances that surround arrangements and basic characteristics of the individual child.” [29]
7. “Traditional” parenting time criteria
There have been a number of studies regarding issues examined by evaluators and the courts in parenting time decisions.[30] “Traditional” areas of concern such as bitterness between the parents, the quality of the parent-child relationships, and the ability of the parents to cooperate in the best interest of the children are well documented issues for older children, and issues that have been addressed above regarding younger children. At the same time it is important to make sure we are not overlooking such issues as substance abuse, domestic violence, and the general psychological stability of the parents. If one stops at simply assessing the anxiety experienced by one of the parents or the lack of communication between them, without looking at the underlying root of the difficulty severe missteps can occur. As noted initially, we focus this topic around generally healthy families, however the criteria regarding parenting plans for children under three we find in the literature should be viewed as an additional level of specificity, rather than as sufficient in and of themselves.
C. “THE HOSPITAL DIDN’T GIVE US A USERS’ MANUAL” – CLIENT EXPECTATIONS AND EDUCATION

(1) Importance of maintaining parenting plans that resemble pre-separation patterns when possible.[31]
(2) Special issues for never-married parents or parents who have been apart.
(3) Reducing parents’ anxiety vs. curtailing visits with the other parent – healthier coping mechanisms.
(4) Issue of referred/transferred anxiety to the child compromising child’s own sense of security[32],[33] An argument can be used against the anxious parent that their anxiety is harmful, so solution is to switch to other parent as primary caretaker to reduce exposure of child to a harmful stressor.
(5) “Communication, Communication, Communication”
Parents need to appear to be helpful in encouraging a positive relationship with the other parent – (these parents chose each other to have children with) By questioning the other parent's abilities are they then casting doubt on their own decision making?
What if there is no meaningful “status quo” or if, for extrinsic (read mostly, in 2011, “economic”) reasons neither it, nor anything close to it, can be maintained?
How do you address parenting plan issues with the client with no prior parenting experience and few apparent parenting skills?
When and how are MHP’s useful?
What sorts of “intervention” are appropriate, whether primarily educational, or primarily therapeutic?
What are the future evidentiary implications of referring the client to an MHP for education or therapy?
Be careful: know your jurisdiction’s extent of, and exceptions to, the psychotherapist/patient and doctor/patient privilege, and the operative law regarding waiver in custody cases.
To assure that any MHP to whom you refer a client obtains informed consent to treatment before treatment begins make sure that the MHP to whom you refer also has an understanding of the extent to which, in your jurisdiction, the discussion with the client is later discoverable. It may be incumbent upon you as an attorney to educate/inform the MHP on these issues before any therapeutic services are provided.
A dilemma (even in jurisdictions, like California, which has a robust MHP privilege, which survives the commencement of custody litigation): if a client has or had, some “parenting deficiencies,” do you want to disclose, preemptively, the client’s efforts to “fix” those deficiencies?
Clients may be deficient in their ability to communicate, in their ability to communicate about the child, or in their ability to communicate with the other parent about the child. (This last is often a subset of the parent’s more general inability to communicate with the other parent). Since, as noted (repeatedly) above, adequate parenting communication is a core requirement of the success of almost any custodial plan, it is incumbent on attorneys both to be able to “diagnose” communication issues the client has with the other parent, and, as much as possible, to address them as effectively and as soon as is practical.
Experienced practitioners are well familiar with parent parties who, notwithstanding their mature and appropriate communications in all or most other aspects of their lives, with the rest of the world, are unable, in communication with the other parent, to refrain from “button-pushing and cage-rattling”, or from having “buttons pushed and the cage rattled”.
Attorneys can provide both resources, and referrals for additional resources, for parent clients to address these issues.
There are available a number of communications/coping oriented books written, with more or less effectiveness, to facilitate parenting communications (e.g., Ross, Julie A., and Corcoran, Judy, Joint Custody with a Jerk (1996); Wittman, Jeffrey P., Custody Chaos, Personal Peace (2001); Warshak, Richard P., Divorce Poison: How to Protect Your Family from Bad-mouthing and Brainwashing (2010).
At the next level, addressing communication skills issues, and ‘reactivity” issues, are tasks for which the assistance of the right MHP can be particularly helpful, particularly if the scope of the behavior modifying task, and the tools used to accomplish it, are delineated for the client, and in turn for the MHP, in advance.
One of the authors has previously suggested, semi-jokingly, the commercial opportunity presented by the un-met need for “tone-filtering” software, which, akin to spell-check and grammar-check features, could monitor and correct the tone a client/parent’s email communication. We are now advised that the staff of MyFamilyWizard, probably the leading “parenting communication facilitating” site/product, is undertaking “beta-testing” of such a feature. Certainly, the attorney can, at bare minimum, give the client some guidance in that regard.
D. “WHY DON’T I JUST ORDER A 50/50 TIME SHARE?” – ASSISTING THE JUDICIAL OFFICER IN CRAFTING CHILD-APPROPRIATE SPECIFIC CUSTODIAL ORDERS FOR YOUNG CHILDREN
In 1977, the late Justice Robert Gardner noted:
“[I]n its use of courtroom time the present judicial process seems to have its priorities confused. Domestic relations litigation, one of the most important and sensitive tasks a judge faces, too often is given the low-man-on-the-totem-pole treatment. . . . One of the paradoxes of our present legal system is that it is accepted practice to tie up a court for days while a gaggle of professional medical witnesses expound to a jury on just how devastating or just how trivial a personal injury may be… yet at the same time we begrudge the judicial resources necessary for careful and reasoned judgments in this most delicate field – the breakup of a marriage with its resulting trauma and troublesome fiscal aftermath. The courts should not begrudge the time necessary to carefully go over the wreckage of a marriage in order to effect substantial justice to all parties involved.” (Marriage of Brantner (1977) 67 Cal.App.3d 416.)
Thirty-four years later, the judicial and system resources devoted to addressing custody issues and domestic relations issues generally remain inadequate; California has just scheduled another $150 million cut in its trial court budget.
One of the consequences is that often, in many jurisdictions, conscientious and experienced family law attorneys may have substantially more and better experience addressing certain issues than the decision-makers before whom they appear and argue.
Whiteside and Becker (2000) note in the implications for clinical practice from their meta-analysis of children’s post-divorce adjustment that
“the discussion with parents needs to shift from a preoccupation with number of overnights to a more complicated assessment of the parenting environment. A particular schedule provides time and opportunity for a parent to be in a relationship with the child, but given that opportunity, what transpires between parent and child is most important.”
This is later echoed in a much more direct fashion by Gould and Stahl (2001) who admonish us all to “never paint by the numbers” when it comes to parenting time plans.[34] The multiple factors that need to be addressed can provide guidance as to what each of the parents is capable of, and what each of the children involved needs.
Closer to equal time shares require both an improved willingness and an ability to make the logistics work. Sometimes even the most well meaning parents have work schedule issues, commitments to other children, and other factors that they have to weigh when creating schedules. Sometimes we’re not dealing with the most well meaning parents, and even though they may position themselves to share equally in the caregiving burdens they are simply not prepared to follow through on what this will entail.
This different emphasis demands that the attorney both:
1. carefully craft specific and detailed requests for relief, and
2. assist the court in the gathering of evidence which will inform the court’s decision in regard to the parenting plan.
There are a number of creative timesharing plans that have been authored by various groups. One that is freely available on the internet is the “Guide for Parents Living Apart” from the Arizona Supreme Court:
It offers several model plans for children ages three and under, broken down by various age categories. While this resource is not perfect (for instance there are no intermediate plans between a 2/5 split of overnights a week and a 50/50 time share for children under 24 months) it shows the variety of plans that can be crafted for children.
Special issues
w Supervised visitation
w Long distance parenting/Relocation issues
w Absent parent reunification
w Resistance to contact (from children or one parent)
w Mixed age multiple children
w Step-parenting


Partial Bibliography:
Kelly, J. B. & Lamb, M. E. (2000). Using child development research to make appropriate custody and access decisions for young children. Family and Conciliation Courts Review, 38, 297-311.
Warshak, R. A. (2000). Blanket restrictions: Overnight contact between parents and young children. Family and Conciliation Courts Review, 38, 422-445.
Warshak, R. A. (2002). Who will be there when I cry in the night? Revisiting Overnights - A rejoinder to Biringen et al., Family Court Review, 40, 208-219.
Pruett, M. K., Ebling, R., & Insabella, G. (2004). Critical aspects of parenting plans for young children: Interjecting data into the debate about overnights. Family Court Review, 42
Lamb, M. E. & Kelly, J. B. (2001). Using the empirical literature to guide the development of parenting plans for young children: A rejoinder to Solomon and Biringen. Family Court Review, 39, 365-371.
Solomon, J. & Biringen, Z. (2001). Another look at the developmental research: Commentary on Kelly and Lamb’s "Using child development research to make appropriate custody and access decisions for young children." Family Court Review, 39, 355-364.
Biringen, Z. et al. (2002). Commentary on Warshak’s "Blanket Restrictions: Overnight Contact Between Parents and Young Children." Family Court Review, 40, 204-207.
Gould, J. W. & Stahl, P. M. (2001). Never paint by the numbers: A response to Kelly and Lamb (2000), Solomon and Biringen (2001), and Lamb and Kelly (2001). Family Court Review, 39, 372-376.
Solomon, J. & George, C. (1999). The development of attachment in separated and divorced families: Effects of overnight visitation, parent and couple variables. Attachment & Human Development, 1, 2-33.
Entire Summer, 2010, issue ABA Section Of Family Law Family Advocate 33:1 “Your Parenting Plan”, and, particularly, Ackerman, M., and Drosdeck, “Should Your Infant Spend the Night?” at p.12, and Pruett, M.K., “All Parenting Plans Are Not Equal” at p. 23.


[1] See, e.g., Freedman, David, “Lies, Damned Lies, and Medical Science” Atlantic (306:4) 11/2010 p. 76, Gould, J. and Martindale, D., Art and Science of Child Custody Evaluations; Sarif, David, and Zervopolous, John,“How Do You Know What You Say You Know? A Lawyer’s Guide to Confronting Mental Health Experts”. Presentation, ABA Family Law Section Ft. Worth, 2010.
[2] “The typical parenting expert... ...is prone to sound exceedingly sure of himself. An expert doesn't so much argue the various sides of an issue as plant his flag firmly on one side. That's because an expert whose argument reeks of restraint or nuance often doesn't get much attention. .... His best chance of doing so is to engage the public's emotions…. And as emotions go, one of them—fear—is more potent than the rest. .... No one is more susceptible to an expert's fear-mongering than a parent. …This leads a lot of parents to spend a lot of their parenting energy simply being scared. The problem is that they are often scared of the wrong things” Steven D. Levitt and Stephen L. Dubner Freakonomics: A Rogue Economist Explores the Hidden Side of Everything: (2005) p. 148.
[3] We will also not address, except in passing, the most appropriate ways for attorneys to assess/screen clients for those concerns.
[4] Emery, R.E. (1988). Marriage, divorce, and children’s adjustment. Newbury Park, CA: Sage
[5] Maccoby, E,. Depner, C. and Mnookin, R. (1988). Custody of children following divorce. In E. Heatherington and J. Aresteh (Eds.), Impact of divorce, single parenting, and stepparenting on children (pp. 91-116). Hillsdale, NJ: Lawrence Erlbaum.
[6] Selzer, J.A. (1991). Relationships between fathers and children who live apart: The father’s role after separation. Journal of Marriage and Family, 53, 79-101.
[7] Adapted from Norris, F. (2007). Decision-making criteria in child custody disputes that involve requests for overnight visits with infants and toddlers: Derived from a review of the literature. Journal of Child Custody 4(3/4), 33-4.
[8] Arredondo, D. and Edwards, L. (2000). Attachment, Bonding, and Reciprocal Connectedness: Limitations of Attachment Theory in the Juvenile and Family Court. Journal of the Center for Families, Children & the Courts, 190-127
[9] Solomon & Biringen (2001). Another look at the developmental research. Commentary on Kelly and Lambs “Using child development research to make appropriate custody and access decision for young children.” Family Court Review, 39(4), 255-364
[10] Ainsworth, M. (1967). Infancy in Uganda: Infant care and the growth of love. Baltimore: Johns Hopkins University Press.
[11] Eyer, D. (1992). Mother-Infant Bonding: A Scientific Fiction. New Haven: Yale University Press.
[12] For more detail the reader is referred to Cassidy, J. & Shaver, P. (Eds.) (1999). Handbook of attachement: Theory, research, and clinical applications. New York: Guilford.
[13] Kaplan, M. & Pruett, K. (2000). Divorce and custody: Developmental implications. In C.H. Zeanah (Ed.), Handbook of infant mental health (2nd ed., pp. 533-547). New York: Guilford.
[14] Hodges, W. F. (1991). Interventions for Children of Divorce. (New York: John Wiley and Sons).
[15] Arredondo, D. and Edwards, L. (2000). Attachment, Bonding, and Reciprocal Connectedness: Limitations of Attachment Theory in the Juvenile and Family Court. Journal of the Center for Families, Children & the Courts, 190-127
[16] DeWolff, and IJzendoorn, M. (1997). Sensitivity and attachment: A meta-analysis on parental antecedents of infant attachment. Child Development, 68, 571-591.
[17] Pruett, M., Ebling, R., Insabella, G. (2004). Critical aspects of parenting plans for young children: Interjecting data into the debate about overnights. Family Court Review, 42(1), 39-59.
[18] Whiteside & Becker (2000). Parental factors and the young child’s post-divorce adjustment: a meta-analysis with implications for parenting arrangements. Journal of Family Psychology, 14(1), 5-26
[19]Johnson, J.R. and Roseby, V. (1997) In the Name of the Child: A Developmental Approach to Understanding and Helping Children of Conflicted and Violent Divorce. (New York: Free Press).
[20] Hodges, W. F. (1991). Interventions for Children of Divorce. (New York: John Wiley and Sons).
[21] Lamb, M. and Kelly, J. (2001). Using the empirical literature to guide development of parenting plans for young children: A rejoinder to Solomon and Biringen. Family Court Review 39(4), 365-371
[22] Sullivan, M.J. (2008). Coparenting and the parenting coordination process. Journal of Child Custody, 5(1/2).
[23] Whiteside & Becker (2000). Parental factors and the young child’s post-divorce adjustment: a meta-analysis with implications for parenting arrangements. Journal of Family Psychology, 14(1), 5-26.
[24] Solomon, J. and George, C. (1999a). The development of attachment in separated and divorced families: Effects of overnight visitation, parent, and couple variables. Attachement and Human Development, 1, 2-33.
[25] Johnson, J.R. and Roseby, V. (1997) In the Name of the Child: A Developmental Approach to Understanding and Helping Children of Conflicted and Violent Divorce. (New York: Free Press).
[26] Norris, F. (2007). Decision-making criteria in child custody disputes that involve requests for overnight visits with infants and toddlers: Derived from a review of the literature. Journal of Child Custody 4(3/4), 33-4.
[27]Donner, M. (2006). Tearing Children Apart. The Contribution of Narcissism, Envy and Perverse Modes of Thought to Child Custody Wars. Psychoanalytic Psychology 23(3), 542–553
[28] Pruett, M., Ebling, R., Insabella, G. (2004). Critical aspects of parenting plans for young children: Interjecting data into the debate about overnights. Family Court Review, 42(1), 39-59.
[29] Ibid.
[30] Ackerman, Ackerman, Steffen, and Kelley-Poilos (2004). Psychologists’ practices compared to the expectations of family judges and attorneys in child custody cases. JCC 1(1), 41-60.
[31] Johnston & Roseby (1997). In the name of the child: A developmental approach to understanding and helping children of conflicted and violent divorce. (New York: Free Press)
[32] Norris, F. (2007). Decision-making criteria in child custody disputes that involve requests for overnight visits with infants and toddlers: Derived from a review of the literature. Journal of Child Custody 4(3/4), 33-4.
[33] Johnson, J.R. and Roseby, V. (1997) In the Name of the Child: A Developmental Approach to Understanding and Helping Children of Conflicted and Violent Divorce. (New York: Free Press).
[34] Gould, J. and Stahl, P. (2001). Never paint by the numbers: A response to Kelly and Lamb (2000), Solomon and Biringen (2001) and Lamb and Kelly (2001). Family Court Review, 39(4), 372-376.

1 comment:

LAFAMILYLAW said...

Thank you. Brilliant.

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