Family Law: The Good, The Bad, And The Ugly

family law factsBy Robert Ferrer

Archivist and Principle Researcher, University of Illinois

The Good

The input of Social Science is beginning to be taken seriously by Family Law. This is important since law is inherently regressive. It relies on past case law to inform current rulings.

The guiding principle of Family Law is “best interests of the child.”

However, how can past case law alone help define a child’s best interest when we are learning each year new things about child developmental processes and needs?

This past June the Association of Family and Conciliation Courts (AFCC) held its annual conference in Chicago. The theme was “The ABCDs of Child Development for Family Law”.

Its main topic dealt with Attachment Theory and children of divorce. This conference had a record attendance of almost 1,300 family law professionals from 20 countries.

Pioneered by British psychoanalyst John Bowlby, the concept of attachment is understood as the process by which an infant establishes a bond to its parent in the first 18 months of life.

A secure attachment with the parent is a key factor to normal child development. An infant establishes a sense of security with a parent who is involved, sensitive, and responsive to the infant’s needs. With a secure base the child is able to explore its world.

Secure attachments also promote the development of healthy interpersonal relationships as the child reaches adulthood. Attachment security has been clinically studied by Mary Ainsworth, who has validated many of its basic tenets. Current research establishes an evolutionary and neurological basis for Attachment Theory.

It is generally agreed that an infant hierarchically forms multiple attachments to a variety of caretakers. The question that informs the debate is whether infants form a primary attachment to one parent, usually the mother, or equally to both parents?

This has significant implications for Family Law, especially in regards to the issue of a presumption for shared parenting.

The Bad

The overwhelming majority of studies on Attachment Theory, past and present, focus exclusively on the mother-child dyad. Carrying over from past assumptions, and adopted by agenda-based research, fathers are considered unnecessary for normal child development, especially at the crucial infant stage.

According to these advocates, when parents separate, the main focus is to maintain and strengthen the mother-child relationship even at the expense of the father-child relationship.

The July 2011 issue of Family Court Review (FCR) has given new impetus to the “single primary parent” view despite the absence of data on fathers in the studies, or the limited samples and subjective methods used in the research cited.

family lawThe summary of views taken from the articles in the issue gives primacy to the mother as being uniquely capable of providing the necessary support needed by the developing infant.

The issue also suggests that the benefits of secondary attachments, such as that with the father, are easily challenged and negated by conflict between parents.

Additionally, infant overnight care away from the primary parent should be avoided for at least three years.

Such suggestions make shared parenting untenable because it separates the child from the primary parent.

The few studies that have looked at the father-child dyad seem to challenge the single primary parent assertion.

Using Ainsworth’s Strange Situation procedure, Drs. Joan B. Kelly and Michael E. Lamb observed that infants form primary attachments to both parents starting at around 6-7 months. The interaction between parent and child may differ – one more playful and adventurous, and the other more soothing and comforting.

However, according to Bowlby, both types of interaction are equally important to promote a secure base necessary for healthy development.

Fundamentally, children deprived of a meaningful relationship with either parent are at a greater risk of adjustment issues due to parental separation.

That’s why many who understand the importance of primary attachments to both parents support a rebuttable presumption of shared parenting because the standard non-residential access consisting essentially of every-other-weekend plus a few hours for dinner on the off-week attenuates the parent-child relationship and disrupts the attachment process.

There are studies that also challenge the assumption that infant overnights with the father should be avoided. But even if you believe that we should be cautious in regards to infant overnights, the studies that support blanket restrictions ignore the positive contributions the father brings to the infant.

Fathers provide a protective factor. Another factor that is ignored is the disruption of existing infant-father attachments or the importance of the creation of early childhood attachments for future healthy relations.

The Ugly

Despite studies that challenge the single primary parent assumption with its assertion that infant overnights with the father are to be avoided, agenda-based politics has co-opted the Attachment Theory debate and its application to Family Law.

The evidence of gerrymandering is obvious. Out of the 11 articles in the FCR issue addressing Attachment Theory, 10 are either authored or co-authored by the guest editor, Jennifer E. Macintosh. She has been most vocal in her opposition to Australia’s 2006 Family Law Reform, which provides a rebuttable presumption of shared parenting.

Furthermore, funding for this issue was provided by an affiliate of the Judith Wallerstein Center (FCR, pg. 425). The late Judith Wallerstein was a strong advocate of the single primary parent assertion, and she was instrumental in California’s Burgess Decision, effectively giving carte blanche to the custodial parent when making the decision to move the children away from the non-residential parent.

Much of Macintosh’s data is subject to criticism. First of all, her sample size was small and she relied solely on mothers’ reports. No formal attachment measures were used. The results were never compared with intact families. Many of the infants had never seen the father before the study. This study, which was submitted to the Australian government as a critique of its family reforms, was never subjected to peer review.

In spite of the shortcomings concerning methodology, studies like these are being used by many as a clarion call for blanket restrictions on infant overnights with the father, and as a general repeal of shared parenting legislation.

The backlash against shared parenting has already begun. The November 2011 family violence amendments to Australia’s 2006 Shared Parenting family law reforms have effectively repealed their essential provisions. All that is required now to deny contact with one’s children (let alone shared parenting) is an allegation of child abuse.

Denmark has abolished its 50-50 child custody rule. Minnesota’s governor has vetoed the state’s shared parenting bill.

The data has been hijacked by the politics – again.


shared parenting advocateMy name is Robert Ferrer. I am a researcher and archivist at the University of Illinois Urbana-Champaign. Although it is in Computer Science, I also apply the same heuristic principles in my interests in child development and family law. As such I’ve been working with the Children’s Rights Council of Illinois and Illinois Fathers in providing the background information in law and child development research for various endeavors. I have been collecting, reading and pondering the wealth of information dealing with divorce and children from many perspectives, including child development, family studies and law. I have attended conferences on Contemporary Families, PAS and ADR. I have written several proposals in the attempt to mitigate parental loss, more fully integrating current research with proposed policy.

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