Parenting arrangements for young children

Parenting arrangements for young children:
Messages from research

by Prof. Judy Cashmore and Prof. Patrick Parkinson

Faculty of Law, University of Sydney.  Jan 31st 2012

Courts are required on a daily basis to make decisions in disputes about residence and contact arrangements for young children when the parents live apart. This article considers the social science evidence both on what parenting arrangements are likely to be optimal for young children at different developmental stages, and on risk factors to be avoided.

In particular, it considers the evidence about when an overnight with the non-resident parent may be beneficial to a young child and when it is contra-indicated. The available research does not support the view that overnight stays for very young children are per se problematic, but rather highlights the importance of considering the overall context of the family circumstances in individual cases. There is also a need to consider what is realistic given the circumstances of the two parents. While appropriate parenting arrangements for young children need to be guided by what is optimal (absent risk factors), this will often have to be limited by what is practicable in the parents’ own situation, and by the need to avoid harm.

A substantial proportion of parents separate before their children have started school. In some cases, the parents have never lived together at all. The Australian Institute of Family Studies, in a 2008 survey of 10,000 parents who separated after 1 July 2006, found that 47% of fathers and 50% of mothers had an only child or youngest child (with the other parent) aged 2 years or younger. A further 19% of fathers and 17% of mothers had an only or youngest child aged 3–4 years. [1] 12% of men and 15% of women reported that they had neither been married to, nor cohabited with, the other parent. [2]
It is not surprising therefore that the family courts are required on a daily basis to make decisions in disputes about parenting arrangements for young children following the separation of their parents. Many more arrangements for such young children are made with the assistance of lawyers, mediators and family consultants. [3]
The aim of this article is to outline the developmental considerations and the findings from relevant research that need to be taken into account when the courts, professionals and parents are faced with making decisions about the appropriate arrangements for young children after their parents separate. This includes the issues when the parents live within a reasonable proximity of one another and when they live a long distance apart. The focus in this article is on young children, and particularly those under the age of 4. Overall, the available research does not support the view that overnight stays for very young children are per se problematic, but highlights the importance of considering the overall context of the particular family circumstances in individual cases. The level of parental conflict, the mother’s willingness to facilitate contact with the father, and the consistency of the care arrangement are particularly important factors.

Developmental considerations

When parents separate, the overwhelming majority of infants and young children in Australia, as in most Western countries, live with their mother, [4]  reflecting the typically greater caring roles of mothers for young children in most intact families.[5] This means that separated fathers of infants and young children are generally non-resident parents who need to set up or maintain a pattern of parenting with their young children that allows them to sustain a meaningful relationship with them. [6]

Whether the parenting arrangements post-separation are determined by parents or by other formal processes, including the courts, it is important that those making those decisions understand the particular considerations in relation to infants and young children that need to be taken into account, based on developmental theory and research. These considerations are children’s developing attachments, their limited sense of time, and their increasing capacity to tolerate separations as they get older.
As with older children, the quality and responsiveness of parenting are vital to young children’s development and their adjustment to changing circumstances. For infants, who are totally reliant on the care and protection provided by their parents and caregivers, these relationships are critical; their reactions and nascent interpretation of the world are mediated by these relationships and there is increasing evidence that ‘even the development of a child’s brain architecture depends on the establishment of these relationships’. [7]
The primary tasks for infants and young children are to develop trust and attachments to their parents and caregivers who provide them with a secure base, allow them to explore the world and help to interpret it with them.
Infants and toddlers rely on predictable routines and consistent contact with their parents and caregivers to develop these attachments and to build an ‘internal working model’ of how the world works — in particular how others can be expected to respond and what level of control they themselves can exercise in eliciting a sensitive and caring response. These are the building blocks of young children’s development and the key to infants and toddlers learning to understand their emotions and regulate their behaviours.
Infants and young children are not restricted to one primary attachment but are quite capable from the age of about 6 months of developing and consolidating attachments of different qualities with both parents and with the carers or grandparents who care for them in day care arrangements. [8]

While infants and children generally prefer the parent who provides most of their care and seek them out for comfort when distressed, these preferences may change and tend to ‘diminish with age and often disappear by 18 months of age’. [9]  Of course, there are individual differences between children particularly in temperament and wariness and in their reaction to change.
Several other quite obvious aspects of young children’s development are crucial considerations in planning their parenting arrangements; these are their limited capacity to understand what is happening and their sense of time. Until the age of about 8 months, when they develop separation anxiety, infants do not have the capacity to hold in mind people or objects that are not present.
After that, young children continue to live very much in the present, but as Lamb and Kelly outline, at the age of 2–3 years, children’s increasing cognitive skills and language allow them to tolerate ‘somewhat longer separations from their parents without undue stress’. However, ‘their very primitive sense of time prevents them from conceptualizing much beyond today and tomorrow, inhibiting their ability to understand and cope with lengthy separations of several weeks or months’. [10] As McIntosh et al point out, children aged 2–3 years ‘remain highly vulnerable to disruption in continuity’ as these ‘growing capacities in turn make the reality of separation from a parent and understanding of the length of this separation more acute, all at a time when consolidation of the primary attachment relationship is still underway’. [11]

The importance of understanding the research

The main principles derived from developmental theory and research indicate that responsive and sensitive care, consistency, continuity and predictability are all important ingredients in infants’ and young children’s development. So how does this play out in the research findings concerning the impact of various arrangements on infants and young children after parental separation ?
What does the research tell us about how these principles derived from the social science evidence can be applied in circumstances that are not optimal following parental separation? In particular, this includes cases where there are significant logistical challenges to frequent contact, where one parent’s capacity to parent is impaired, or where there is high conflict and little or no parental cooperation.

Three questions are addressed: First, at what age and in what circumstances, is it appropriate for infants and very young children to stay overnight with the non-resident parent? Second, to what extent is it appropriate to make arrangements for substantially shared care between parents of young children ?
Third, what orders should be made if the parents of a young child live a long distance apart or the child’s primary carer wants to move a long way from the other parent ?

The debate about overnight stays

While there is a very substantial body of research over the last four to five decades concerned with the effects of parental separation and post-separation arrangements on children, adolescents, and young adults, there is very little empirical research that is specifically concerned with infants and young children. [12]

A meta-analysis by Whiteside and Becker, published in 2000, was based on only 12 articles that met their criteria for inclusion. [13]  That study and an earlier review by Whiteside [14] found that, as with older age-groups of children, the quality of the father-child relationship was associated with the level of cooperation between the parents, the frequency of the father’s contact with the children, and the level of the father’s involvement with them before the separation. In turn, children who had frequent contact and positive  relationships with their father had fewer internalising symptoms and behaviours (withdrawn, anxious, or depressed). Whiteside and Becker
concluded that:

• “simply having possession of the child during part of the month is neither positive nor
  negative in its own right. Rather, what transpires between the father and the child
  during that time can influence the child’s adjustment.” [15]

Since Whiteside’s review, there has been a handful of important studies, involving infants and young children and focusing on the structure of the care arrangements. There has also been a vigorous debate between respected researchers and clinicians about the value or harmfulness of infants staying overnight with their father. [16]
The debate about overnight stays was very much focused on children’s attachment relationships. While attachment theory is commonly used to underpin policy and practice in this area, its use and interpretation are contentious. The contentious aspects include the singular focus on maternal attachment by some of the earlier psychoanalytic theorists, the reliance on the ‘strange situation’ as a means of assessing attachment, the need for proper validation of the measures used in attachment research, and the difficulties of making longer term predictions about children’s adjustment on the basis of these assessments. [17]
Kelly and Lamb [18] initiated the debate by being critical of the ‘unnecessarily restrictive’ ‘traditional’ guidelines favouring mother-child attachment at the expense of father-child attachment and relationships, based on the views of early and contemporary psychoanalytic theorists. [19] They argued that these views are out of step with the research that highlights the importance of fathers in children’s healthy development and wellbeing. [20]  Their view is that infants develop multiple,  hierarchical attachments and that those attachments, crucial to children’s social and emotional development, are based on regular and frequent interactions with their parents in a variety of contexts. [21]  They argued that this should include overnight stays with routine care-giving and  bedtime rituals, but, because young children’s sense of time and capacity to tolerate long separations are limited, there should be more transitions between the parents to ensure the continuity of both relationships. Other researchers have been more cautious about overnight stays with non-resident parents.

The research base

The level of disagreement between clinicians and researchers may leave judges and lawyers somewhat confused about the application of the available research evidence to decisions concerning young children. [22] The research therefore rewards close analysis. The first of these studies was by Solomon and George.

Solomon and George

The baseline [23] and follow-up [24] study (in California) by Solomon and George assessed the attachment of 145 infants, aged 12–20 months, to their mother and father. There were three groups of families: 52 children in intact two-parent families (group 1), and two groups of separated families where the father had contact with the child on a regular basis either with overnight stays at least 1 per month (group 2: ‘overnight’ group, n = 44 children) or without staying overnight (group 3: ‘no overnight’ group, n = 49 children). The follow-up study was conducted 12 months later.

In the first study, more infants in the intact families were found to have organised attachments than in either of the two groups of separated families. This is consistent with attachment theory and with other research findings indicating that disruptive events such as parental separation can have a negative impact on infants’ attachments with their parents. The main concern, however, is with the higher than expected proportion of children with disorganised attachments in the overnight group (66%), compared with those in separated families without overnight stays (43%) and those in intact families (35%). Disorganised attachment reflects the child’s confusion when their parent is both a source of comfort and fear. Lee, Kaufman and George define it as the result of ‘persistent patterns of miscuing, insensitivity, and failed responsivity that disrupt, interfere with, and threaten a child’s sense of his or her parent as being the stronger and wiser protective figure in the attachment-caregiving relationship’. [25]  The concern about disorganised attachments is because they are seen to be an indicator of significant disturbances associated with unresponsive, abusive or neglectful parenting and later adverse social and emotional developmental outcomes. [26]

The disproportionately high number of disorganised attachments in the overnight group did not support a ‘simple separation hypothesis’ but ‘a morecontext-sensitive view, in which separation effects are moderated by the conditions of separation and reunion’. [27]  Higher levels of conflict and low levels of communication in the overnight group were associated with more disorganised attachments. Solomon and George concluded that overnight contact was ‘not inevitably associated’ with serious disruptions in the mother-infant attachment (disorganised attachment) but occurred when there was conflict between the parents, poor communication, and the mother was not sensitive to the child’s distress on separation and reunion. Mothers who reported that they adapted the arrangements to the child’s needs and were responsive to their distress on separation and reunion were more likely to have children with secure attachments in both the overnight and no overnight groups. The extent to which mothers communicated with the father about the child was also strongly associated with the security of the child’s attachment to the father in all three groups of families, indicating that fathers may be‘dependent on approval from and communication with the mother to establish a relationship with the child in the early years’.[28]

In the follow-up study conducted 12 months later, families who had had overnight stays at the time of the earlier study (group 2) were compared with a combined comparison group that included those who had had no overnight stays (group 3) and those who were married and living together (group 1). The earlier attachment classification was used to predict mothers’ and children’sbehaviour in several problem-solving and cleanup tasks.[29]  Solomon and George were cautious in their interpretation of children’s attachment behaviours in the context of separation and divorce, and again interpreted their results in terms of the conditions surrounding the overnight arrangements – the level of conflict, the mother’s communication with the father about the child, and the mother’s sensitivity at separation, reunion and in adapting the schedule to the child’s needs. They tentatively concluded that ‘overnight visitation schedules can disorganize the child’s attachment strategies but that such disorganization does not necessarily pervade or reflect the overall quality of the mother-child relationship’. [30]  Solomon later concluded that ‘the prevalence of disorganized attachment relationships in the overnight group is a reaction to’ mothers being unresponsive to the child’s needs as a result of feeling helpless, either because of the realities of her circumstances or because of her perceptions of the father’s behaviour. [31]

Limitations of the study

The prominence of this study in the ‘big debate’ about overnight stays, [32] means that it is important to critically evaluate the study and its limitations.
Lamb and Kelly [33] were critical of basing any recommendations to the courts or to mediators on the Solomon and George study, [34] pointing to the fact:

• that many of the infants in the divorce/separated group had never lived with their
  two parents, there was no evidence that they had formed attachments to their fathers
  before overnight visits commenced, and an unusually high number of infants had
  disorganized attachments to their mothers. . . . Furthermore, even when there were
  overnight visits, some of the infants ‘experienced repeated and sometimes prolonged
  separations from their fathers’.

In addition to the issues highlighted by Lamb and Kelly, several other sample-related or methodological issues limit or qualify the conclusions that can be drawn from this study and the follow-up. First, all the measures in relation to visitation or contact, conflict, communication between the parents, and the mother’s psychological protection of the child were based on the mother’s report only, and there is good reason for concern about the validity of measures and accounts of family life that are based on only one
‘informant’. [35]
Second, there were significant differences between the two groups of separated/divorced families that need to be taken into account in interpreting the findings. [36] Infants in the ‘no overnight’ group, for example, were more likely to have weekly access to their fathers than those in the ‘overnight’ group, although the total time was less. Some children had repeated and prolonged separations from their fathers and so effectively the fathers had become strangers to their young children. Attachment and other developmental theory would predict that the regularity and frequency of the schedule is as important, or even more important, than the total time together. [37] There were also significant differences between the ‘overnight’ and ‘no overnight’ groups in relation to conflict and hostility, with more restraining orders against mothers and more formal mediation or intervention in the families where children stayed overnight with their fathers compared with those who did not.
Since disorganised attachment was associated with poor cooperation and communication, and with conflict between the parents, the higher levels of conflict and hostility between the parents in the overnight stays group is clearly a confounding factor. Further, those in the ‘overnight’ group were more likely to have joint physical and legal custody than those in the ‘no overnight’ group, despite the higher levels of conflict and hostility. This is significant in the light of other research which has shown that children’s attachments
become less secure in high conflict divorces, and that higher levels of contact where there is serious and persistent conflict between parents have a negative effect on children’s adjustment and attachment to both their mother and father. [38]
Third, the analyses do not indicate how many children had disorganised attachments with both their mother and father, and in what way, if at all, this was associated with the relationship between the parents and overnight stays. Nor do the analyses in the follow-up study differentiate between families in which children were having overnight stays with their fathers both at baseline and in the follow-up study.
These aspects clearly limit the interpretation of the findings. Solomon and George acknowledged that ‘the interpretation of our findings is obviously problematic’, [39] and their conclusions were quite rightly cautious – more cautious than those of others who have cited them.

Kline Pruett, Ebling and Insabella

The study by Kline Pruett, Ebling and Insabella [40] and the follow-up by Kline Pruett, [41]  are important for several reasons. Kline et al examined several aspects of the parenting plan (overnight stays, their timing, the consistency of the schedule, and the number of caregivers for the child, including grandparents and child care). The study involved 161 families with children six and under, filing for divorce in Connecticut; 132 families were involved in the follow-up study 15–18 months later. They used various measures of children’s behaviour and adjustment, [42] based on both mothers’ and fathers’ reports, [43]  rather than relying on mothers’ reports and on measures of
attachment alone. Attachment is an important aspect of parent-child relationships, but as Kline Pruett and her colleagues argue:

• Attachment tells only a small frame of the entire story of a young child’s life;
  attachment categorizations may change over time. . . . Behavior and psychological
  symptoms represent other important indices in child adaptation that have not yet
  been empirically examined in relation to overnights. [44]

Consistent with other research, Kline Pruett and her colleagues found that the quality of the parent-child relationship reported by both mothers and fathers [45] was the best predictor of children’s adjustment. Conflict between the parents was also important, but importantly the consistency of the schedule and the number of other caregivers were still significant after taking account of inter-parental conflict and the quality of the parent-child relationship.
According to both mothers and fathers, children aged four and older who had a consistent schedule and overnight stays with their fathers had fewer behavioural and social problems than children who did not. [46]  Boys and girls also differed in their responses with boys finding inconsistent schedules more difficult; girls were more likely to benefit from overnight stays. Older children (4–6 year olds) showed positive benefits from overnight stays and there were no significant differences for 2–3 year olds in the follow-up study, except that fathers reported children as more anxious and depressed when they had mid-week overnight stays. Kline Pruett and her colleagues observed that:

• overnights play an important role in child adjustment in some limited respects and
  by illuminating a larger picture that indicates 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 the arrangements and basic
  characteristics of the individual child. As other researchers have concurred. . . the
  context surrounding the parenting plan is critical to the way in which it is
  experienced by the child. [47]

Overnights do matter but what matters more to these children is the context and whether they occur on a regular, unchanging schedule. [48] Kline Pruett and her colleagues concluded:

• Parents and judges also will want to consider whether the schedule can remain
  consistent across weeks and months, and not be subject to change in accord with
  parental work schedules or other adult needs. Both parents reported identical links
  between inconsistent schedules and internalizing problems and social problems,
  suggesting that such inconsistencies took their toll socially and emotionally on
  children. Alternatively, parents who cannot or choose not to maintain consistent
  schedules may have a more difficult time supporting their children’s social and
  emotional development in other ways as well. These findings underscore the
  importance of parenting plan schedules for young children, but also turn us away
  from the overnights debate toward a fuller evaluation of the broader context of the
  plan. [49]

McIntosh, Smyth and Kelaher

The study by McIntosh, Smyth and Kelaher is important for several reasons. It is the first large-scale Australian study in this area and uses data from the Longitudinal Study of Australian Children (LSAC) to explore the relationship between frequent overnight stays with the non-resident parent, and the psycho-emotional development of young children. [50] It also includes measures of children’s behaviours that go beyond attachment. LSAC does not have data on attachment, but other measures of the child’s emotional and behavioural regulation, including irritability and children’s visual monitoring [51] of their
parent were analysed, as well as several measures of children’s health. All the data were obtained from the parent with whom the child was living most of the time — mostly mothers. Three age groups were analysed: a cohort of infants under 2, the same children as 2–3 year olds, and a group of 4–5 year olds that included this same cohort several years later.
In the under 2 age group, the researchers compared children’s perceived outcomes under four conditions: first, in intact families; second, where the  child rarely if ever, stayed overnight with the other parent but had daytime contact (the ‘rare overnights group’); third, where the child stayed overnight with the other parent 1–3 nights per month, but less than once per week (the primary care group); and finally, a group which they classified as ‘shared care’ involving one or more overnights with the other parent per week. Eleven of
the 55 infants in the ‘shared care’ group were with each parent for 5 or more nights per fortnight. [52]  By far the largest group (n = 396) was the rare overnights group, comprising nearly two-thirds (66%) of children whose parents were living apart. [53]
Infants staying with the other parent (mostly fathers) one or more nights per week were judged by their parent (mother) to be more irritable than those in the primary care group once qualities of the parenting relationship and of the relationship between the parents were taken into account. The infants in the intact families appear, however, to have been judged by their mothers to be about as irritable as those in the overnight contact group. [54]  The findings concerning the extent to which infants monitored their proximity to their mother appear to be quite weak since any differences between children with overnight stays and those in primary care ‘disappeared’ when parenting characteristics were taken into account. [55]
The findings in relation to the 2–3 year olds were somewhat clearer. For 2–3 year olds, ‘shared care’ was defined as at least 5 nights per fortnight with each parent. The 23 children in this group showed lower levels of persistence than the 179 children in the primary care or the 284 children in the rare overnight groups. [56] Their mothers also reported more problematic behaviours reflecting distress compared with those in the primary care group. These were behaviours such as ‘crying or hanging on to the parent when he/she tries to leave; worrying a lot or seeming very serious; not reacting when hurt; often becoming very upset; gagging or choking on food; refusing to eat; and hitting,
biting, or kicking the parent’. [57] In comparison with those children who stayed overnight with the non-resident parent for between 1 night per month and 4 nights per fortnight (itself a broad range), this group of children had lower levels of persistence and more behavioural problems.
The same ‘care arrangement’ categories were used for the 4–5 year olds as for the 2–3 year olds. For this older age group, however, there were no differences in health, emotional regulation or behavioural outcomes associated with any particular care arrangement. Other factors, and in particular, lack of parental warmth and parental disagreement, explained the differences between the groups for these older children.

Limitations of the study

Again the limitations of the study need to be examined. The main limitation concerns the exclusion of a potentially important factor — whether they had ever lived together. Not only is this likely to be important, there was also substantial variation among the groups in all three age groups. [58] For the under 2s, those whose parents had never lived together comprised 58% of the rare overnights group, 28% of the primary care group and 27% of the group of infants who stayed overnight with the other parent 1 night per week or more. [59]
For the 2–3 year-olds, 38% of the rare overnights group, 15% of the primary care group and 13% of the shared care group had never lived together. For the 4–5 year old group, the figures were respectively, 40%, 16% and 5%. Analysis of this variable is important for the debate about overnight stays, since, as Kline Pruett et al found, there is a considerable difference of context between overnight stays which maintain some degree of continuity for infants and young children following parental separation, and commencing overnight
stays with a parent where there has been no prior history of that parent living with the child. The failure to take this difference into account was also one of the criticisms of the Solomon and George study.
There were also quite small numbers in the primary care group of infants (n = 17) and in the shared care group of 2–3 year olds (n = 23). In addition, while significant, the models are not strong. [60] A combination of these issues means that the conclusions that can be drawn are limited. For the infants, given the variability of outcomes between the four groups on the various measures, the small sample size in the primary care group, and the fact that the previous cohabiting status of the parents and the consistency and schedule of
contact were not factored into the modelling, the findings in relation to overnight stays for children under 2 are equivocal. Infants in the primary care group, in any event, stayed overnight 1–3 times per month with the non-resident parent. The study therefore provides little reliable evidence that overnight stays with the non-resident parent for children under 2 are contra-indicated. [61]
Finally, these analyses do not examine the continuity of the care  arrangements for the infant cohort whose subsequent data, as 2–3 year olds and 4–5 year olds, were used in the analyses for these two older age-groups.
It is possible, for example, that the very high level of disagreement between parents of 2–3 year olds in shared care [62] may be a result of these arrangements beginning or increasing at this age. Althenhofen et al (2010) found, for example, that the average age for young children starting overnight stays with their father following parental separation was about 2.5 years of age. [63]
It is also likely that the high level of disagreement between parents in this group in turn affects the behaviour of the children. Clearly, longitudinal analyses are needed to help interpret these interactions.

Summary of research findings

In summary, there is some evidence for an adverse effect of care arrangements that take infants and 2–3 year olds away from their primary carer overnight.
There is also some evidence for an adverse impact of shared care arrangements for children under 4. McIntosh et al’s study in particular highlights the risks associated with shared care arrangements involving 5 or more nights per fortnight with each parent for 2–3 year old children; in this case, nearly all the mothers indicated disagreement with the other parent. For 4–6 year olds, the empirical evidence to date is quite different, and this fits with the developmental principles outlined earlier. McIntosh et al found no evidence of any independent effect of the care arrangements for children aged 4–5, including shared care; Kline Pruett et al found that overnights with their father had positive benefits for 4–6 year olds.
The main finding, however, is that the overall context is crucial. Like the findings of a large body of studies involving older children and adolescents, the context includes the degree of warmth and responsiveness of parents (especially mothers), and the level of  communication and cooperation, and hostility between the parents. In addition, as predicted by developmental theory, Kline Pruett et al’s studies also point to the importance of the continuity and consistency of the care arrangements and the number of other caregivers children have.
The broader context of these findings lies in the assumptions or models that underpin these analyses and interpretations and which are reflected in the views of those deciding on the care arrangement. There appear to be three models. The first assumes that very young children need a secure and stable attachment to their primary caregiver, assumed to be their mother; in this zero sum model, any time away from the mother is seen as a deficit or a risk to this attachment. Much of this research is based on data from mothers only. The
second focuses on the importance of the father, and the value-add of this relationship, challenging concerns about separations from the child’s mother only, and not from the father. The third takes a family system approach and focuses on the child’s behaviours and relationship with their mother, father and other caregivers, based on data from both mothers and fathers.

Much research is based on the first or second competing models — Solomon and George, and McIntosh et al are good examples of the first model. Lamb’s work might be seen as an example of the second, but Kelly and Lamb have focused on contexts involving ‘established attachments to two involved parents prior to separation/divorce’. [64]  Kline Pruett’s work reflects an application of the third model, including responses from both mothers and fathers, as well as the consistency of the schedule, and the number of caregivers in the child’s life.

Implications for parenting arrangements for young children

Given these findings and the guidance from developmental theory and
research, the optimal circumstances for young children following parental
separation are:

• that both parents have a secure and warm relationship with the child before separation;
• that the mother is supportive of the father-child relationship; for the mother, that means giving her emotional permission for the child to be with the father, and expressing positive feelings and reassurance on handover and reunion; [65]
• that the routine is consistent and predictable, and does not separate the child from either parent for more than a few days at a time;
• that any conflict between the parents does not occur in front of the child and does not result in negative feelings about the other parent being conveyed to the child, and
• most importantly, that both parents communicate and monitor the child’s tolerance for the separations; where the father is the
secondary carer, any increasing contact should be gradual with
continuing sensitivity to the child’s behaviours and reactions.

In addition, it is important that both parents are sensitive to the child’s
distress at transitions. Some distress is to be expected, and will vary in terms
of children’s temperament and context; it needs to be managed with sensitivity
by both parents rather than interpreted as a licence to reduce contact. [66] As
Dolby outlines:

• If the parent is emotionally available to the child at separation and at reunion then
  this positive support can mitigate infant distress and protect attachment security; on
  the other hand, if the transitions are handled in a negative way, then this can cause
  more stress. [67]

And further:

• It is the ability to repair a disruption that is the essence of a secure attachment, not
  the lack of disruptions. [68] . . . The experience of having a person who ‘walks them
  through’, who assists them back to a calm state when things go wrong, enables
  children to build up a sense of trust in their parent’s availability and ability to help
  them. Over time they internalise the help they have received from their parents
  enough to be able to draw on it on their own. This is how children learn to manage
  their feelings: resolving distress in the context of a safe relationship enables them to
  learn to cope with strong feelings like fear for themselves.

It is important also to put the issue of separations and transitions into perspective. Many mothers of very young children return to work after a period of maternity leave. When mothers work, infants and very young children are left for substantial periods during the day with grandparents, other family members or friends, or in child care centres. Young children seem to manage these quite lengthy daytime separations from the primary caregiver without harm to children’s attachments to their parents, but again the context
and the individual differences between children are important. [69]
Charting the right course Professionals involved in the family law system rarely work with parents where there are optimal circumstances. How then can this body of research be applied in circumstances that are rather less than optimal ? The arrangements that will be appropriate in each case will depend on charting an appropriate course, navigating by the star of what is optimal, taking account of what is practicable, and avoiding, as far as possible, the rocks that might lead to shipwreck.

Practicalities
What is practicable may well fall far short of what is optimal. Even if the relational conditions for successful co-parenting or parallel arrangements are there, the logistical issues may constrain what is practicable. Work schedules, commuting time, the distance between homes, or between home and the father’s work, breastfeeding, and an infant’s sleeping patterns may all constrain the options available.

Travel and distance
Issues concerning travel can be problematic both in Australia’s highly urbanised  environment and in rural areas. For example, contact from 4–7pm on Tuesdays and Thursdays may be practicable if the father has a flexible work schedule and can travel without difficulty to visit or collect his child.
However, many full-time employees do not have such flexible schedules, and may commute long distances to and from work.
There are also practical issues about what to do in those 3 hours. Options may be limited in the vicinity where the mother lives, especially if is cold or raining. Taking the child home for a home-cooked meal and a relaxed play environment may not be a problem if the parents live 1 or 2 kilometres apart, but in a large and congested city such as Sydney or Melbourne, even a 15 kilometre journey may be a time-consuming ordeal with young children.
It is not at all uncommon for separated parents to live some distance apart. Separation typically has centrifugal effects on parents, both for financial reasons and as a result of re-partnering. [70] Financial difficulties are particularly common for parents of young children, who are likely to be quite young themselves, and to have had fewer years to accumulate property than parents who are older. [71] The difficulties of travel and distance may therefore make frequent contact very difficult.

Confounding factors
There are also other factors that may make it difficult for parents to agree, and
for mediators and lawyers to get agreement to plans that are appropriate for
young children. One issue concerns the views that parents may have about the
appropriateness of shared care arrangements for young children. Where a
father considers that an equal time arrangement will be appropriate for a child
under 3, it may be very difficult for him to accept a parenting plan that does
not offer him anything like that amount of time.
On the other hand, mothers of infants and young children are primed to be
alert to any risks to their child, and mothers’ concern about the safety of their
child in the care of the other parent is one of the main predictors of
disagreement between the parents and dissatisfaction with the parenting
arrangements. [72]
Child support is another confounding factor. If the father has the child
overnight for at least 1 night per week, then he will pay a lower level of child
support than if the child does not stay overnight. [73] This can create an incentive
for a father to seek overnight stays when this may not be in the best interests
of an infant child.

Avoiding the rocks
There may also be a number of other issues that need to be considered in avoiding risks to the safety and emotional wellbeing of young children.
Parents who have an impaired capacity to parent due to mental illness (including chronic depression), alcohol or drug addiction, [74] or a chaotic and dysfunctional lifestyle, present different issues for the courts from those who are able to provide ‘good enough’ parenting, or better. While parenting capacity is important for older children too, it is critical for infants and young children who are so reliant on adequate, and appropriately responsive and sensitive parenting. When the mother’s capacity is impaired, consideration may have to be given to whether the father is better able to provide a safe and nurturing environment as primary caregiver. If the mother remains the primary caregiver, the father may be able to provide a protective role by having a substantial role in caring for the child.
In many cases where one or both parents has an impaired parenting capacity, the kinds of parenting plans that may be desirable where parents are able to provide ‘good enough’ parenting may not be appropriate, and a court must evaluate a range of alternatives to find the best possible arrangement given the strengths, difficulties, and limitations of each of the parents, and with a particular focus on the child’s safety and well-being.
Being realistic about the destination While mediators and lawyers negotiating suitable parenting arrangements between ‘good enough’ parents may have a range of available options that could assist the child in developing a meaningful relationship with both parents, courts often have to focus on what is practicable and what will minimise risk in the circumstances.
One of the difficult issues to confront, in this context, is whether it is realistic to think that the parents can form a co-parenting or parallel parenting relationship for the long-term which will be of benefit to the child.
Section 60CC of the Family Law Act 1975 (ie Australia) requires courts to consider the benefit to the child of having a meaningful relationship with both parents. However, the law does not assume that benefit. [75] As Bennett J observed in C v G, [76]  ‘the court must evaluate the nature and quality of the relationship to establish whether there is any “benefit to the child” in having or continuing a relationship and whether such relationship is or will be “meaningful” in the relevant sense’.
In addressing these questions, there is a difference between continuing a meaningful relationship and developing one which does not yet exist, in circumstances where there is likely to be significant ongoing conflict between the parents. [77] It is a principle of the Family Law Act, subject to a child’s best interests, that ‘children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together’. [78] However, when the parents have never lived together or separated before the child was born, the question that arises for the court is likely to be about the options available for the father to develop a relationship with the child, in circumstances where the parents have never shared the parental role, and are in conflict.
If the parents have never lived together and shared life as a family, it may be harder for the parents to cooperate in an aspect of family responsibilities than if they have at one stage made a commitment together to a shared life.
The sociological evidence is that, in the long-term, the father-child relationship tends to be much more fragile and tenuous than if the parents had been married. [79]
For these reasons, in situations where there are significant practical problems, or substantial risks to a young child’s wellbeing, given the circumstances of each parent, and the relationship between them, it is important to be realistic about the purposes for which parenting orders are to be made. It may be too much to expect that a successful co-parenting relationship can be established when the foundations for such co-operation
have not previously existed, where the father does not take easily to the parenting role, and where the mother is anxious or resistant to the child’s contact with the father. In particular, the foundations may be laid for long-term conflict and difficulty if the mother is concerned about the child’s safety with the other parent. [80] Where the children are very young, mothers’ concerns about their children’s safety and well-being and the level of disagreement about child-rearing practices are likely to be exacerbated. [81]

Relocation cases
The need to be realistic about the destination is particularly important when there is a relocation dispute involving a young child. [82] Given the young child’s sense of time, and the limitations of even telephone and webcam communication with very young children, relocation of a young child to a distant location is likely to make it very difficult indeed for the child to maintain a meaningful relationship with the non-resident parent. If the
non-resident parent can move as well, that difficulty can be resolved. [83] In other cases, the question has to be asked whether the benefit to the child of having a meaningful relationship with both parents, given the parenting capacity of the father and the level of acrimony between the parents, is sufficient to outweigh the mother’s case for relocation. [84] It is unrealistic and unfair on the child to think that a meaningful relationship with a young child can be maintained by making orders for extensive contact that involves
frequent travel for the child across long distances. The costs of travel, and the burden of travel for young children, must be realistically assessed. [85]

Shared care and young children
In the absence of risk factors, young children are likely to benefit very much from the meaningful involvement of both parents in their lives. Is shared care — defined as 5 nights per fortnight or more with each parent – ever appropriate for young children ?
Apparently, many in the population think so. The Australian Institute of Family Studies’ research indicated that 32% of fathers and 23% of mothers in the general population thought an equal time arrangement for a child under three was ‘totally appropriate’, while only 6.5% of fathers and 11% of mothers thought it was totally inappropriate. [86]  Two per cent of children under 3, whose parents were living apart, were in equal time  arrangements in 2008, but 7.9% in 2009. The corresponding figure for 3–4 year olds was 9% in 2008 and 16.8% in 2009. [87] There may of course be a variety of different equal time arrangements, alternating days, four-three divisions of the week, or week-about arrangements. It is possible that some people may think of an arrangement for frequent day-time contact by a father as being an equal time arrangement.
While it may assist a young child to maintain attachments with both parents by seeing the non-resident parent frequently, young children also need stability, continuity and security with a primary attachment figure. There is no support in the social science literature for parenting arrangements for children under four that involve alternating substantial blocks of time.

The McIntosh et al findings indicate that 2–3 year old children with conflicted parents fare less well when each parent has the care of the child overnight for at least 5 nights per fortnight. While otherwise there is no direct evidence that alternating substantial blocks of time is harmful, the preponderance of expert opinion, based upon what is known about young children’s attachments and sense of time, is that a primary residence with one parent, regular contact with the other parent, and limited periods of separation from both parents are best for young children, and especially those under 4. McIntosh et al also note the ‘higher risks’ associated with families involved in litigation. They observe:

• In court samples, parents frequently lack the equipment needed for an effective
  shared care arrangement, for example, adequate co-parenting communication,
  conflict management skills, and pragmatic infra-structure. . . ‘shared care’ infants in
  higher risk divorce populations thus may accrue both normative risk through their
  sheer developmental vulnerability, and additional risk through the domino impacts
  of parental conflict, and pre-occupied or otherwise compromised parenting. [88]

There is nothing within the Family Law Act to suggest that a week-about arrangement ought to be seriously contemplated with a young child. When there is, or will be, an order for equal shared parental responsibility, courts must consider the options of an equal time arrangement or an arrangement for ‘substantial and significant’ time. [89] These requirements are not limited to children of school age and above. However, in determining what is reasonably practicable, the court should consider, inter alia, the impact that an
arrangement of that kind would have on the child. [90] Section 60CC(3)(d) refers to the likely effect on the child of any separation from either of his or her parents. These considerations would justify a court rejecting proposals for week-about arrangements involving children who are not yet in school, and to be very cautious about any other arrangements that appear to be driven by an aim to split time approximately equally rather than to meet the child’s developmental need for secure attachments, a stable environment, and a consistent schedule.

Conclusion

Post-separation parenting arrangements for infants and young children are negotiated in a variety of contexts. In many cases, parents have previously lived together and shared the care of the child while their relationship was intact; the child has formed a relationship with both parents in the first months of life or longer, and the challenge is how to maintain and develop that relationship in the often difficult circumstances that exist after separation. In other cases, the parents have broken up during the child’s pregnancy, or never lived together at all. Some children are born to parents who have at one stage made a commitment of marriage, while other children are born to parents who have only had a relatively casual and transient, non-cohabiting relationship.

These different contexts cannot be ignored in working out what is in the best interests of children when parents live apart.
In considering what care arrangements are in the best interests of the child, there are also various risk factors to consider. The level of conflict between the parents, and the extent to which both the mother and father are able to be sensitive to the child’s needs on separation and reunion are both important factors. There may be other risks to the young child’s physical safety or emotional needs arising from impaired parenting capacity, particularly in circumstances where a parent abuses alcohol or drugs, or suffers from mental illness. [91]

The cases that judges typically hear — that is, the cases that cannot be settled—will very often be cases where significant risk factors are present, and where one or both parents has difficulty in understanding and meeting the emotional needs of the very young child.
Furthermore, there are often logistical challenges in working out suitable parenting arrangements. Even when there are no risk factors, the work schedule of the father and the time it takes for him to commute to and from work may make it difficult for him to spend the time with an infant or toddler that would ordinarily be desirable. The straitened financial circumstances of the parents after separation may mean that one or both parents has to move to a lower cost housing area, and this is a major reason why such travel issues
arise.
Parents, with the assistance of mediators, family consultants and lawyers, or courts in adjudicated cases, must try to work out what is best for children taking all of these circumstances and issues into account. The social science literature is helpful both in identifying what is likely to be optimal in the circumstances, and in pointing to risk factors. That literature does not support a prohibition on overnight stays for infants and toddlers, but suggests the need for both discernment and caution, particularly in relation to overnight stays of more than 1 night per week for children aged 3 and younger. There is also a major difference between an overnight stay that represents a continuation of pre-separation caring responsibilities, and staying overnight with a biological parent who is, to that child, something of a stranger.
Above all, in this difficult area, there is no room for decision-making that is driven by a concern for parental rights or fairness between the parents. The first 3 years of life are vital to the young child’s cognitive and emotional development. It may often not be possible to devise post-separation parenting arrangements that are optimal for young children, but at least, we should aim as far as possible, to protect vulnerable young children from paying the price for adult notions of justice.

Footnotes

[1] R Kaspiew, M Gray, R Weston, L Moloney, K Hand and L Qu, Evaluation of the 2006 Family Law Reforms, Australian Institute of Family Studies, Melbourne, 2000, pp 24–5. On average, these interviews occurred 15 months after separation: ibid, p 21, n 37.

[2] Ibid, p 25.

[3] Family consultants are social scientists employed in the family courts who engage in non-confidential dispute resolution, and may be required to make a report to the court concerning the issues in a parenting dispute.

[4] J Pryor and B Rodgers, Children in Changing Families: Life after Parental Separation, Blackwell, Melbourne, 2001.

[5] J Baxter and D Smart, Fathering in Australia among Couple Families with Young Children, 2010, at <http://www.fahcsia.gov.au/about/publicationsarticles/research/occasional/Documents/op37/OP37.pdf&gt; (accessed 14 April 2011).

[6] For ease of reference, and given the typically gendered patterns of care with young children, the primary caregiver is assumed to be the mother in this article, and the non-resident parent is assumed to be the father.

[7] National Scientific Council on the Developing Child, Young children develop in an
environment of relationships, Working Paper No 1, 2004, p 1. Retrieved from
<http://www.developingchild.net&gt;; also J R Schore and A N Schore, ‘Modern attachment
theory: The central role of affect regulation in development and treatment’ (2008) 36
Clinical Social Work Jnl 9.

[8] M E Lamb and J B Kelly, ‘Improving the quality of parent-child contact in separating families with infants and young children: Empirical research foundations’ in R M Galatzer-Levy, L Kraus and J Galatzer-Levy (Eds), The Scientific Basis of Child Custody Decisions, 2nd ed,Wiley, Hoboken, NJ, 2009, pp 187–214. On attachment, see also M Main, E Hesse and S Hesse, ‘Attachment Theory and Research: Overview with Suggested Applications to Child Custody’ (2011) 49 Family Court Review 426. This article also reviews some of the relevant research studies on parenting arrangements for young children after separation.

[9] M Lamb, ‘Critical analysis of research on parenting plans and children’s well-being’ in L Drodz and K Kuehnle (Eds), Parenting Plan Evaluations: Applied Research for the Family Court, Oxford University Press, New York, forthcoming.

[10] Lamb and Kelly, above n 8.

[11] J McIntosh, B Smyth and M Kelaher, Parenting Arrangements Post-separation: Relationships between Overnight Care Patterns and Psycho-emotional Development in Infants and Young Children, Report to the Australian Government Attorney-General’s Department, Attorney-General’s Department, Canberra, 2010, at (Research on Shared Care Parenting and Family Violence) (accessed 14 April 2011) p 149; J N Hartson, ‘Children with two homes: Creating developmentally appropriate parenting plans for children ages zero to two’ (2010) 23 American Jnl of Family Law 191. 238 (2011) 25 Australian Journal of Family Law.

[12] Only 5% of the effect sizes derived from the 63 studies included in Amato and Gilbreth’s meta-analysis, for example, involved children under 5: see P Amato and J Gilbreth, ‘Non-resident fathers and children’s well-being: A meta-analysis’ (1999) 61 Jnl of Marriage and the Family 557. Moyer commented that ‘Little data are available on the effects of custody arrangements on children of different ages’: S Moyer, Background Paper Child  Custody Arrangements: Their Characteristics and Outcomes, Department of Justice, Canada, 2004.

[13] Whiteside and Becker located 131 English-language articles published between 1970 and 1994 that included information on children who had experienced parental separation by age 5; only 12 of these, however, met their criteria of containing measures relating to either fathers’ contact with children under 6 or the quality of the interaction between parents, and zero order correlations for this age group: M Whiteside and B Becker, ‘Parental factors and the younger child’s post divorce adjustment: A meta-analysis with implications for parenting arrangements’ (2000) 14 Jnl of Family Psychology 5.

[14] M Whiteside, ‘Custody for children age 5 and younger’ (1998) 36 Family and Conciliation Courts Review 479.

[15] Whiteside and Becker, above n 13, p 20.

[16] The articles in this debate were all published in the Family and Conciliation Courts Review (or the Family Court Review, as it was renamed) between 2000 and 2002.

[17] P Ludolph, ‘Answered and unanswered questions in Attachment Theory with implications for children of divorce’ (2009) 6 Jnl of Child Custody 8.

[18] J Kelly and M Lamb, ‘Using child development research to make appropriate custody and access decisions’ (2000) 38 Family and Conciliation Courts Review 297.

[19] J Bowlby, Maternal Care and Mental Health, World Health Organization, Geneva, Switzerland, 1951; Goldstein, Solnit and Freud proposed that children involved in contested divorces should remain in the care of one primary caretaker, their psychological parent, without overnight stays with their non-resident parent until later toddlerhood, about the age of 3: J Goldstein, A Solnit and A Freud, The Best Interests of the Child: The Least Detrimental Alternative, Free Press, New York, 1996; W Hodges, Interventions for Children of Divorce: Custody, Access, and Psychotherapy, John Wiley, New York, 1991.

[20] See e.g. M Lamb, K Sternberg and R Thompson, ‘The effects of divorce and custody arrangements on children’s behavior, development, and adjustment’ (1997) 35 Family and Conciliation Courts Review 393, and see now, M Lamb (Ed), The Role of the Father in Child Development, 5th ed, Wiley, New York, 2010.

[21] See also R Warshak, ‘Blanket restrictions: Overnight contact between parents and young children’ (2000) 38 Family and Conciliation Courts Review 422. As Dolby points out, ‘attachments grow in the ordinary moments when children and their caregivers have time to240 (2011) 25 Australian Journal of Family Law . . . . concentrate on each other’: R Dolby, ‘Children’s attachments: The importance of relationship repair’, paper presented at Australian Family Court Judges’ Conference, Sydney, 11–12 November 2005.

[22] For an earlier discussion of this evidence, see T Altobelli, ‘Rethinking contact arrangements involving young children’ (2005) 19 AJFL 29.

[23] J Solomon and C George, ‘The development of attachment in separated and divorced families. Effects of overnight visitation, parent and couple variables’ (1999) 1 Attachment and Human Development 2.

[24] J Solomon and C George, ‘The effects on attachment of overnight visitation in divorced and separated families: A longitudinal follow-up’ in J Solomon and C George (Eds), Attachment Disorganization, Guildford Press, New York, 1999, pp 243–64.

[25] S M Lee, R L Kaufman and C George ‘Disorganized attachment in young children: Manifestations, etiology, and implications for child custody’ (2009) 6 Jnl of Child Custody 62 at 64.

[26] D Davies, Child Development: A Practitioner’s Guide, 3rd ed, Guilford Press, New York,2011; M H van Ijzendoorn, C Schuengel and M J Bakermans-Kranenburg, ‘Disorganizedattachment in early childhood: Meta-analysis of precursors, concomitants, and sequelae’(1999) 11 Development and Psychopathology 225.

[27] Solomon and George, above n 23, p 4. For further explanation of the views of Solomon and George on whether infants should go on overnight stays, see their interview with Dr J McIntosh: C George, J Solomon and J McIntosh, ‘Divorce in the Nursery: On Infants and Overnight Care’ (2011) 49 Family Court Review 521.

[28] Ibid, p 26.

[29] Solomon and George, above n 24.

[30] Ibid, pp 260–1.

[31] J Solomon, ‘An attachment theory framework for planning infant and toddler visitation arrangements in never-married, separated, and divorced families’ in L Gunsberg and P Hymowitz (Eds), A Handbook of Divorce and Custody: Forensic, Developmental and Clinical Perspectives, Analytic Press, Hillsdale, New Jersey, 2005.

[32] See above n 16.

[33] M E Lamb and J B Kelly, ‘Using the empirical literature to guide the development of parenting plans for young children’ (2001) 39 Family Court Review 365.

[34] Lamb and Kelly also discounted the findings on the basis of the contextual and other differences between the three groups. ‘They commented that Solomon and George observed no difference between the proportions of secure infant-mother attachments in the groups of infants who did and did not have overnight visits with their fathers’: above n 33, p 368. While they were correct in relation to the overall log linear paired comparison analyses reported on page 14 (p = .10), Solomon and George did comment further that (above n 23, p 15):  “Looking at the adjusted standardized residuals (shown in Table 3) it is clear that the Overnight group was distinguished from the Married and No overnight groups by lower than expected numbers of secure classifications and higher than expected numbers of disorganized classifications.”  The proportion of secure attachments among intact families was also lower than expected at only 37% in this sample compared with about 2 out of 3 in middle class American families generally: see J Kelly and M Lamb, ‘Using child development research to make appropriate custody and access decisions’ (2000) 38 Family and Conciliation Courts Review 297 at 302.

[35] W Cook and M Goldstein, ‘Multiple perspectives on family relationships: A latent variables model’ (1993) 64 Child Development 1377; M Hetherington, ‘Social support and the adjustment of children in divorced and remarried families’ (2003) 10 Childhood 217; J Warin, Y Solomon and C Lewis, ‘Swapping stories: Comparing plots: Triangulating individual narratives within families’ (2007) 10 International Jnl of Social Research Methodology 121.

[36] It should also be noted that since the parents in these groups self-selected into these groups, one of the conditions for causality – initial equivalence, often based on random allocation – was not met.

[37] While Solomon and George indicated that there were no differences in attachment with either parent associated with any ‘particular characteristic of the visitation arrangements themselves, including their number, duration, patterning’ or the age at which they began, they did acknowledge that this may have been a result of the ‘limited variability’ in their sample and the restriction on more complex analyses because of the sample size: see above n 3, p 25.

[38] J McIntosh and R Chisholm, ‘Cautionary notes on the shared care of children in conflicted parental separation’ (2008) 14 Jnl of Family Studies 37; M Hetherington and J Kelly, For Better or for Worse: Divorce reconsidered, Norton, New York, 2002; P Amato and S Rezac, ‘Contact with non-resident parents, inter-parental conflict, and children’s behaviour’ (1994) 15 Jnl of Family Issues 191; M Cox, M Owen, V Henderson and N Margarid, ‘Prediction of infant-father and infant-mother attachment’ (1992) 28 Developmental Psychology 474; J Johnston, M Kline and J Tschann, ‘Ongoing post divorce conflict: Effects on children of joint custody and frequent access’ (1989) 59 American Jnl of Orthopsychiatry 576.

[39] Solomon and George, above n 24, p 260. Solomon and George have since commented on the 244 (2011) 25 Australian Journal of Family Law misuse of their work by other commentators. Prof George said: ‘Our study is used in a variety of different ways, including some ways that I do not agree with, or that the data do not support’ (above n 27 at 521).

[40] M K Pruett, R Ebling and G Insabella, ‘Parenting plans and visitation: Critical aspects of parenting plans for young children interjecting data into the debate about overnights’ (2004) 42 Family Court Review 39.

[41] M K Pruett ‘The Collaborative Divorce Project: Helping parents co-parent when young children are involved’, Paper presented at International Conference on Children and Divorce, Norwich, England, July 2006.

[42] Although young children have limited language until they are 3 or 4 years old, they have a number of ways of signalling their distress. In addition to crying and fretful withdrawal, these include disturbances in sleeping and eating, irritability, and difficult behaviours such as tantrums, clinging, and regression to earlier behaviours such as thumb sucking. S Burke, J McIntosh and H Gridley, Parenting after separation: A literature review, Melbourne, Australian Psychological Society, 2009.

[43] Parents completed the Achenbach Child Behavior Checklist (CBCL).

[44] Kline Pruett et al, above n 40, p 41.

[45] This was measured by ‘Maccoby, Mnookin, and Depner’s (1993) 10-item, 5-point Likert measure of the parent-child relationship. Parents reported on changes in the emotional distance in their relationship with their child, as well as changes in expectations for the child, play time, patience, consistency, and the child’s compliance since parental separation’: Kline Pruett et al, above n 40, p 42.

[46] The relationship between overnights and measures of internalising and externalising behaviours was non-significant for the 0-3 age group. Kline Pruett et al, above n 40, at p 9.

[47] Pruett et al above, n 40, p 53.

[48] Ibid, p 56.

[49] Ibid, p 55.

[50] McIntosh et al, above n 11.

[51] Visual monitoring is a measure of ‘infants’ efforts through gaze and gesture to monitor’ and maintain contact with the attachment figure and an indicator of their anxiety about ‘their caregiver’s emotional or physical availability’: ibid, p 115 (citing Bowlby and Ainsworth).

[52] Ibid, pp 112, 120.

[53] Ibid, p 120.

[54] The graph, ibid, p 133 indicates little difference between the infants in intact families and those in the overnight group but the children in intact families were not included in the regression analyses (p 130).

[55] Although McIntosh et al (see above n 11) claim that ‘Shared care at 1 night per week or more was associated with an added degree of vulnerability relative to primary care’ in relation to ‘greater monitoring of proximity of the primary carer’ (p 144), this does not align with the reporting of the results in the report. See p 133 where this difference was not significant when parenting characteristics and socio-economic status were taken into account. The only difference that was significant was between ‘rare overnights’ and ‘overnights more than once per week’; that difference ‘became significant’ once aspects of the parenting and inter-parental relationships were taken into account.

[56] The researchers reported that this effect was also significant when 2–3 year olds were in the care of the non-resident parent for 1 night per week or more (above n 11, p 136), but no data on this was given. Such a group would comprise a broad range from 1 night per week to 7 nights per fortnight with the father, so caution is needed in relation to any conclusions about the suitability of overnight stays for 1 night per week.

[57] See McIntosh et al, above n 11, p 17. There were no significant differences in parents’ concerns about their infant’s global health, learning, development and emotional functioning.

[58] For the 2–3 year olds, 38% of the rare overnights group, 15% of the primary care group and 13% of the shared care group had never lived together. For the 4–5 year old group, the figures were respectively, 40%, 16% and 5%.

[59] Ibid, p 121.

[60] The models generally explain between 13 and 21% of the variance, leaving a great deal unexplained.

[61] Lamb, above n 9, also concluded that the findings from this study were ‘ambiguous’ for the infants but indicated some possible behavioural problems for 2–3 year olds.

[62] 95% of the 23 parents in this small ‘shared care’ group indicated disagreement with the other parent. The disagreement figures for the ‘shared care’ groups in older and younger children were 56% for the infants under 2, and 61% for 4–5 year olds. None of the parents in the other care arrangements across the three cohorts reported such high frequencies of disagreement with the other parent.

[63] S Altenhofen, K Sutherland, and Z Biringen, ‘Families experiencing divorce: Age at onset of overnight stays, conflict, and emotional availability as predictors of child attachment’ (2010) 51 Jnl of Divorce & Remarriage 141.

[64] Lamb and Kelly, above n 8.

[65] M K Pruett, L Arthur and R Ebling, ‘The hand that rocks the cradle: Maternal gatekeeping after divorce’ (2007) 27 Pace University L Rev 709; L Trinder, ‘Maternal gate closing and gate opening in post divorce families’ (2008) 29 Jnl of Family Issues 1298; Solomon and George above n 23, p 26.

[66] Lamb and Kelly, above n 8.

[67] Dolby, above n 21.

[68] Quoting R Marvin, G Cooper, K Hoffman and B Powell, ‘The Circle of Security Project: Attachment-based intervention with caregiver-young child dyads’ (2002) 4 Attachment & Human Development 107 at 109.

[69] NICHD Early Child Care Research Network, ‘The effects of infant child care on infant-mother attachment security: Results of the NICHD Study of Early Child Care’ (1997), 68 Child Development 860; NICHD Early Child Care Research Network, ‘Factors associated with fathers’ caregiving activities and sensitivity with young children’ (2000) 14 Jnl of Family Psychology 200; C Howes and S Spieker, ‘Attachment relationships in the context of multiple caregivers’ in J Cassidy and P R Shaver (Eds) Handbook of Attachment: Theory, Research, and Clinical Applications, 2nd ed, Guildford, New York, 2008, pp 317–32.

[70] J Cashmore, P Parkinson, R Weston, R Patulny, G Redmond, L Qu, J Baxter, M Rajkovic, T Sitek and I Katz, Shared Care Parenting Arrangements since the 2006 Family Law Reforms: Report to the Australian Government, Attorney-General’s Department, 2010, p 140.

[71] Whiteside, above n 14.

[72] Cashmore et al, above n 70; Kaspiew et al, above n 1.

[73] See generally, P Parkinson, ‘The future of child support’ (2007) 33 UWALR 179.

[74] Research by the Australian Institute of Family Studies on parenting after separat7ion found that about half of the mothers and around one-third of the fathers indicated th7at mental health problems, use of alcohol or drugs, gambling or other addictions were apparent prior to separation. Kaspiew et al, above n 1, p 29: parents were ‘not asked which family member exhibited such problems’ given the likely reluctance of parents to acknowledge their own problems.

[75] P Parkinson, ‘Decision-making about the Best Interests of the Child: The impact of the two tiers’ (2006) 20 AJFL 179.

[76 [2006] FamCA 994 at [68].

[77] Lamb and Kelly, above n 8, p 198.

[78] Family Law Act 1975 s 60B(2).

[79] M Maclean and J Eekelaar, The Parental Obligation: A Study of Parenthood across Households, Hart, Oxford, 1997; M Carlson, S McLanahan and J Brooks-Gunn, ‘Co-parenting and non-resident fathers’ involvement with young children after a non-marital birth’ (2008) 45 Demography 461; P Amato, C Meyers and R Emery, ‘Changes in non-resident father-child contact from 1976 to 2002’ (2009) 58 Family Relations 41; L Tach, R Mincy and K Edin, ‘Parenting as a “package deal”: Relationships, fertility, and non-resident father involvement among unmarried parents’ (2010) 47 Demography 181; J Cheadle, P Amato and V King, ‘Patterns of non-resident father contact’ (2010) 47 Demography 205.

[80] J Cashmore and P Parkinson, Understanding Contact Disputes. Report to Federal Attorney-General’s Department, Australian Government, 2010, at < http://ssrn.com/abstract=1721927 > (accessed 14 April 2011).

[81] Further analysis of the data in the Cashmore et al study (see above n 70) indicates that mothers of children under 5 were significantly more likely than mothers of older children to have concerns about the children’s safety (p = .005), to say that they disagreed with the child’s father about child-rearing matters (p = .032), that the arrangements were working less well for the children (p = .005), and that the children were not happy with the arrangements (p = .014).

[82] See generally, J Kelly and M Lamb, ‘Developmental issues in relocation cases involving young children: When, whether and how?’ (2003) 17 Jnl of Family Psychology 193. Lamb and Kelly note that a range of factors need to be evaluated in determining a relocation case. However, they consider that if a relocation is necessary, it should ideally be postponed until children are 2 or 3 years old in order to allow the relationship with the non-resident parent to be developed to the point that a long-distance relationship can be sustained.

[83] U v U (2002) 211 CLR 238; 191 ALR 289; [2002] HCA 36; BC200205110; M Weiner, ‘Inertia and inequality: Reconceptualizing disputes over parental relocation’ (2007) 40 UC Davis L Rev 1747.

[84] See generally, P Parkinson, Family Law and the Indissolubility of Parenthood, Cambridge University Press, New York, 2011, Ch 7.

[85] P Parkinson, J Cashmore and J Single, ‘The need for reality testing in relocation cases’  (2010) 44 Family Law Quarterly 1; P Parkinson, ‘The realities of relocation: Messages from judicial decisions’ (2008) 22 AJFL 35.

[86] Kaspiew et al, above n 1, p 116. See also B Smyth and R Weston, ‘The attitudes of separated mothers and fathers to 50/50 shared care’ (2004) 67 Family Matters 8.

[87] Kaspiew et al, above n 1, p 119; L Qu and R Weston, Parenting Dynamics after Separation: A Follow-up Study of Parents who Separated after the 2006 Family Law Reforms, Australian Institute of Family Studies, Melbourne, Dec 2010, Table 5.2, p 58.

[88] McIntosh et al, above n 11, pp 156–7.

[89] FLA s 65DAA.

[90] FLA s 65DAA(5)(d).

[91] Kaspiew et al, above n 1; Qu and Weston, above n 87.

 

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