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Overnight Visitation for Infants and Toddlers

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					  by Eric G. Mart, PhD, ABPP (Forensic)



                           Overnight Visitation for
                            Infants and Toddlers:
                                    Implications for Parenting Plans
     One of the most contentious and             This view of the prerogatives of fathers       placing children of divorce with their
  controversial issues that arises in the        in relation to children is still seen today    mothers. Drawing on psychoanalytic
  context of the development of joint            in certain areas of the Third World.           theory, Goldstein, Freud, and Solnit
  parenting plans is that of overnight           Under these arrangements, mothers had          postulated that children have a
  visitation for infants and toddlers. Input     no legal rights or recourse in relation        “psychological parent” and that the
  to the court on this issue from custody        to their children. A similar philosophy        relationship between the child and his
  evaluators,      visitation  coordinators,     was seen in early English common law,          parent is central to healthy development.3
  and guardians ad litem varies widely           where fathers also had a legal obligation      Relationships with adults other than the
  depending on their individual views            to support and care for their children. In     psychological parent were deemed to
  of the available research as well as           cases of divorce, mothers had little if any    be of minimal importance. These authors
  their personal views regarding child           access to the family’s children. However,      went so far as to state that for children
  development. Some state that there             at the beginning of the 19th century           under the age of two, a separation of as
  should be no overnight visitation between      a partial shift occurred when jurists in       little as two days could cause permanent
  the noncustodial or less-seen parent until     America and Great Britain concluded            and irreversible psychological damage to
  the child is at least three years of age.      that very young children needed the            the child. Because this relationship was
  Others believe that relatively frequent        support of their mothers, who were             so important, these authors urged the
  overnight visitation with the less-seen        considered to be better able to meet           courts to give the psychological parent
  parent or even joint custody is perfectly      the needs of younger children than were        full legal and physical custody, including
  appropriate and even beneficial for the        fathers. One of the first to articulate        full control over any visitation with the
  child. Still others appear to “split the       this view, later referred to as the tender     other parent. These authors also argued
  difference” and advocate for one or two        years doctrine was the British barrister       that when a young child was placed with
  overnights per week in this situation,         Justice Thomas Noon Talfound. This             a surrogate parent for a year or more,
  trying to strike a balance between the         doctrine as articulated by Talfound also       the surrogate should automatically be
  other two positions.                           directed that custody would revert to          considered the psychological parent of
     This raises an important question:          the father when they were seven years          that child.
  how is it that well-meaning and                of age.1 This idea that women are better          Despite the fact that this theory was
  knowledgeable professionals, looking           able to parent small children has been         not based on empirical research and
  at much of the same data with a sincere        very pervasive in Western culture from         it was ultimately shown that children
  wish to support the best interests of the      that time until the present, although not      form multiple attachments, the idea
  child come to such different conclusions       always in the same form.                       of the psychological parent has been
  on the issue of overnight visits for infants      American views on child-rearing and         extremely influential up to the present
  and toddlers? This article will explore the    parental responsibilities were affected        time. For example, in the case of In re
  history of this issue, provide an overview     by the advent of the industrial revolution.    Marriage of Burgess, the court was
  of the relevant literature, and provide        The movement of large segments of the          required to decide whether a mother
  some general recommendations for how           population from agrarian settings to           was to be allowed to relocate and take
  to proceed in cases where infant and           cities with their opportunities for factory    her children with her, even though this
  toddler overnight visitation is an issue       employment helped to shift the roles           would greatly reduce the father’s access
  before the court.                              of fathers and mothers in family life.         to the children.4 Judith Wallerstein, in
                                                 Fathers began to be absent from the            an amica curiae brief, emphasized that
            The History of the Issue             family home for large portions of the          the children’s contact with their primary
                                                 day. Gould states that “this was the first     caretaker (in this case the mother)
     The issue of overnight visitation           time in history that family responsibilities   was far more important than their
  for infants and toddlers cannot be             were clearly divided into the role of          contact with their father. Additionally,
  understood without placing the more            ‘provider-wage earner’ for the father          Wallerstein argued that as long as there
  general issue of child custody in historical   and ‘child caretaker-nurturer’ for the         was some degree of contact between
  context, since society’s views of children     mother.”2                                      children and their father, the attenuation
  and their place in families has evolved           These developments contributed to           of the paternal relationship was not
  over time. Originally, children were           a gradual erosion of the assumption            of great importance. Although her
  considered the chattel property of their       of paternal custody. Additionally,             opinions were based on observational
  father, who could do with them as he           psychoanalytic theories and early              rather than empirical research with a
  pleased. The father could sell his children    research on the importance of mother-          self-referred sample, this approach to
  into slavery, force arranged marriages,        infant attachment began to strengthen          primary location was widely adopted and
  and even kill them for disobedience.           the preference of American courts for          codified in many jurisdictions throughout
www.vtbar.org                                    THE VERMONT BAR JOURNAL • SUMMER 2009                                                       
  the United States.                              argument is rooted in attachment theory.      thought arrive at their conclusions for a




                                                                                                                                               Overnight Visitation for Infants and Toddlers
     In the 1970s, a countercurrent began         An in-depth discussion of the tenets of       number of reasons. First, they dispute
  to flow against the presumption of              attachment theory and the research on         interpretations of the available data
  maternal custody of young children. With        which it is based is beyond the scope         that suggest that overnight visitation
  changing economic circumstances and             of this article. Put briefly, attachment      for infants has been shown to have
  the rise of feminism, increasing numbers        theory states that human infants have         a negative effect on attachment. For
  of women began to move into the                 an innate instinct to seek proximity to       example, Warshak notes that “[t]he
  workforce. This had several effects. One        an adult, particularly in times of stress     evidence shows that infants form multiple
  of these was that the traditional father/       or insecurity. If this relationship is        attachments and a child could have
  provider-mother/nurturer roles began            consistent and the infant is well cared       an insecure attachment to the mother
  to blur and fathers began to take on            for, he or she will develop a pattern         but a secure one to another person.
  more child-rearing duties. This led many        of interpersonal relations that reflect       Although there may be hierarchies of
  jurisdictions to begin to consider the          secure attachment. On the other hand,         relationships, most infants develop
  possibility of joint custody arrangements       attachment theory states that if there        selective attachments simultaneously to
  in which parents would split child care         are significant problems in this initial      a small number of people who provide
  responsibilities and custodial time. At         parent/infant relationship, the infant will   regular contact and care.”8 Warshak also
  the same time, social scientists began          develop one of a number of problematic        accuses those supporting blanket
  to look at the role of the father and           interpersonal styles such as avoidant,        restrictions on such visitation of
  child development and discovered                disorganized, or ambivalent attachment.       subscribing to the abandoned notion
  that increased father involvement with          In severe cases of maltreatment or            of what has been referred to as
  children post-divorce contributed to            abuse, this can lead to a serious pattern     “monotropy,” which is the idea that
  better outcomes for children across a           of psychological/interpersonal problems       infants naturally develop a special
  wide range of psychosocial domains5             which has been referred to as reactive        attachment to one person, in most
  In addition, father-absence emerged             attachment disorder.                          circumstances the mother, and that this
  as a major correlate to a wide range               Experts in child custody who support       idea has been discredited.9
  of negative effects such as juvenile            the avoidance of overnight visitation for        Other experts writing on the subject
  delinquency and academic under-                 infants and toddlers point to a number        note that the available research
  achievement.                                    of studies that suggest higher levels of      indicates that children raised in joint
     As can be seen from the above review,        problematic attachment patterns and           physical custody have better outcomes
  decisions regarding overnight visitation        children who experience overnight             across a wide range of measures and
  for infants and toddlers now take place         visitation with the less-seen parent. These   show better adjustment in emotional,
  in the context of two diametrically             arguments are most notably put forward        interpersonal, and educational spheres
  opposed schools of thought. On the              by Judith Solomon and Zeynep Biringen.7       in later life. In his meta-analytic study of
  one hand, there is a long-term cultural         They note that preliminary research on a      thirty-three other studies examining the
  assumption that young children belong           group of 12-18 month-old children who         effects of joint physical custody versus
  with their mothers most of the time and         spend overnights with their less-seen         sole custody arrangements, Bauserman
  that the disruption of this most important      fathers demonstrated that they were           noted that children in joint custody
  of relationships can have deleterious           more likely to show signs of disorganized     situations were rated as better adjusted
  consequences for child development.             or unclassifiable attachment than those       than their sole custody counterparts, and
  On the other hand, most courts, mental          who did not have overnight visitation.        that this better adjustment was observed
  health professionals, and guardians ad          These authors also point out that while       by both parents, teachers, children,
  litem recognize that children develop           problematic patterns of attachment were       and therapists.10 Lamb, Sternberg, and
  multiple relationships and that high            observed more frequently in children          Thompson write that
  levels of father involvement in child-          experiencing overnight visitation, the
  rearing help protect against many of the        presence or absence of such visits did          To maintain high-quality relationships
  generally detrimental effects of divorce.       not have any measurable effect on the           with their children, parents need
  Can these seemingly incompatible                children’s attachment to their fathers.         to have sufficiently extensive and
  positions be reconciled, and what does          They acknowledge that there is little           regular interaction with them, but the
  this mean with regard to the feasibility        empirical evidence suggesting negative          amount of time involved is usually
  or lack thereof of overnight visitation for     effects of overnight visitation but             less important than the quality of
  toddlers and infants?                           believe that it is premature for courts to      the interaction that it fosters. Time
                                                  adopt a presumption that such visitation        distribution arrangements that ensure
            The Relevant Research:                should be the initial point of departure        the involvement of both parents in
          A Brief Review and Critique             in parenting plans for young children.          important aspects of their children’s
                                                     There is another group of experts who        everyday lives and routines—including
    There is an ongoing debate among              look at the available research and come         bedtime and waking rituals, transitions
  social scientists who work in the area          to very different conclusions. Some child       to and from school, extracurricular
  of child custody regarding the effects          custody experts strongly believe that           and recreational activities—are likely
  of overnight visitation for infants and         the literature supports a presumption           to keep nonresidential parents playing
  toddlers. On one side of this debate are        of joint physical custody when this is          psychologically important and central
  researchers and theorists who believe           logistically feasible or, at a minimum,         roles in the lives of their children.11
  that overnight visitation with the less-        relatively frequent overnight visitation
  seen parent should not be undertaken            for infants and toddlers with the less-         The most recent empirical research
  until the third year of a child’s life.6 This   seen parent. Members of this school of        on the issue of overnight visitation for
www.vtbar.org                                     THE VERMONT BAR JOURNAL • SUMMER 2009                                                        2
  young children was performed by Pruett,




                                                                                                                                                   Overnight Visitation for Infants and Toddlers
  Ebling, and Glendessa focused on
  direct measurement of the presence or           Level of Certainty       Clinical Criteria
  absence of problem behaviors in these           Unsupported              Nonsignificant or conflicting research findings
  children.12 Their results indicated that        Speculative              Conclusions that are consistent with accepted theory
  the presence or absence of overnights                                    supported by one or two studies of limited generalizability
  in and of themselves had little to do
  with outcomes for children, but that the        Tentative                Research studies consistently established statistical
  context in which the overnights occurred                                 significance in the expected direction, but have little or no
  (number of caretakers, consistent                                        practical value in classifying subjects
  schedule) produced differential effects.        Probable                 Research studies consistently established statistical
     The positions of experts on both sides                                significance in which cutting scores, measures of central
  of this issue appear to be supported by                                  tendency, or a similar statistic accurately differentiate
  data. Under these circumstances, how                                     between at least 75% of the criterion groups
  can judges and guardians ad litem decide
                                                  Definite                 Accurate classification of 90% or more of individual subjects
  whether to allow overnight visitation for
                                                                           based on extensive, cross validated research. Findings are
  infants and toddlers? How can decisions
                                                                           congruent with accepted theory
  informed by science be made based on
  contradictory data?

            Problems with Applying               Interviewing, Richard Rodgers lays out a         available empirical research (as opposed
              Pertinent Research                 schema for determining the degree of             to clinical lore) falls in the speculative
                                                 certainty of clinical findings that provides     category. There are to date two empirical
     In order to understand why the              a framework for evaluating the state of          studies that show small differences
  research related to overnight visitation       the research in a particular area.13             in attachment in young children who
  for infants and toddlers seems to support                                                       have overnight visitation with their less-
  the positions of both those advocating            Without going too deeply into                 seen parent.14 There is also one study
  and those opposing such practices, it          statistics and methodology, several              that addresses the effects of overnight
  is necessary to know a little bit about        terms utilized above must be defined.            visitation with young children but does
  the nature of psychological research.          Findings in research are considered to           not utilize attachment as the outcome
  Simply put, not all research is of equal       be “statistically significant” when they         measure.15 There are no other published
  value. Without going too deeply into           are deemed to be unlikely to have                studies that address these issues
  methodological and statistical issues,         occurred by chance. Social scientists            empirically. The state of the scientific
  there are ways of differentiating the          generally consider findings to be                literature in this area clearly comports
  importance and impact of particular            statistically significant when they are          with Rodgers’s definition of speculative
  studies.                                       unlikely to happen by chance more than           findings—conclusions that are consistent
     One of the most important things to         one out of twenty times. It should also be       with accepted theory supported by one
  consider when regarding a particular           understood that a study can be statistically     or two studies of limited generalizability.
  piece of research is whether it actually       significant but have little practical utility.   Despite this, there is no lack of child
  is research or just someone’s opinion.         An example of this would be a finding            custody evaluators and visitation
  Empirical research utilizes a variety of       that children with low levels of lead in         coordinators who assert to courts that
  techniques, such as matched comparison         their blood streams scored two points            the scientific literature supports the
  groups and double-blind designs, to            lower on standardized IQ tests than their        position of prohibiting or minimizing
  minimize the inevitable bias effects to        unexposed peers. Such a finding might            overnight visitation between children
  which human beings are prone. There            be statistically significant when looking        and their less-seen parent during the
  is a great deal of what some have              at large groups of children but it would         first three years of life on the basis of this
  referred to as “clinical lore” published       have little or no utility in predicting an       “body of research.”
  every year in journals. Such articles          individual’s IQ based on their lead level.          While the miniscule size of the empirical
  represent the theorizing, speculation,         “Generalizability” refers to the extent to       literature on the subject of overnight
  and opinions of experts but are not the        which the results of a study are specific        visitation for infants and toddlers makes
  product of empirical research. It should       to a particular situation or have broader        further analysis almost unnecessary, the
  be understood that there is nothing            implications. Finally, a “cutting score” is      problem of clinical utility should also be
  wrong with publishing such articles, as        simply a score on a test that effectively        addressed. In the three empirical studies
  all science begins with speculation and        differentiates between two groups or             mentioned above, while differences
  observation. “Clinical lore” only becomes      characteristics. For example, a high score       were found in comparison groups, these
  problematic when it is presented as fact       on a hypothetical depression inventory           differences were very small. One would
  when in reality it is only the ipse dixit of   could be effective in classifying those          not expect that any research would
  the expert testifying before the court.        who suffer from depression from those            show 100 percent differences between
     It is also useful to consider the           who are not depressed with very few              comparison groups, but differences of
  overall state of the research supposedly       false positives or false negatives.              a few percentage points on a criterion
  supporting one position or another in             What do we find when we consider              measure generally have no clinical
  child custody and other matters before         the research on overnight visitation and         significance. It is one thing to say that
  the court. In the second edition of the        attachment for infants and toddlers using        “young children who have overnight
  Handbook of Diagnostic and Structured          Rodgers’s criteria? It appears that the          visitation with their less-seen parent are
www.vtbar.org                                    THE VERMONT BAR JOURNAL • SUMMER 2009                                                             
  more likely to have attachment problems       many ways been resolved. A national            other parent, it is likely that he or she




                                                                                                                                              Overnight Visitation for Infants and Toddlers
  later in childhood” and another to state      survey performed in 2005 by the U.S.           will sleep in a car seat during trips from
  that “Young children who have overnight       Department of Education, National              one residence to another. In the absence
  visitation with their less-seen parent        Center for Education Statistics found          of any scientific data suggesting that
  are 1.5 percent more likely than their        that 50.7 percent of children ages 0-2         the practice of children sleeping away
  overnighting peers to have attachment         spent time in non-parental care, and that      from the bed in which they usually sleep
  problems in later childhood.” Both could      the rate for children aged 3-6 who were        creates problems, what basis is there for
  be literally true, but the latter statement   not yet in kindergarten was 73.7 percent.      suggesting a prohibition on overnight
  is far more helpful to the fact finder in     Because of changing employment                 visitation for infants and toddlers? It
  developing a parenting plan.                  patterns for women, non-parental care          does not appear that there is any rational
     Finally, it should be understood that      for very young children has become             or scientific basis for advocating such a
  attachment has become something               the norm rather than the exception in          prohibition.
  of a fad in the area of child custody         American society. While the benefits or
  assessment. There is a voluminous             drawbacks of such arrangements can be                Developing Appropriate
  literature on attachment phenomena            debated, the fact that this change has                Parenting Plans With or
  in developmental psychology but there         occurred is indisputable. If there was a            Without Overnight Visitation
  is a gap in its application to clinical       large, deleterious effect from children
  assessment. Although mental health            spending time with individuals other              It appears from a review of the
  professionals doing child custody             than their primary caretaker, it is very       available empirical literature that there is
  assessments frequently reference the          likely that the impact would be clearly        no scientific basis for either suggesting
  attachment literature, there is at present    evident by now, and such evidence does         a blanket prohibition on overnight
  no commercially available instrument          not exist.                                     visitation for infants and toddlers,
  designed to measure attachment directly          A second, related factor to be              or creating a presumption that such
  in a particular child. As a consequence,      considered      follows    from     simple     visitation is always appropriate and
  those working before the court as             observation of normal childhood,               necessary. Under these circumstances,
  experts in child custody assessment and       whether from intact or divorced                how should courts and guardians ad
  visitation coordination who present their     families. In his article entitled “Blanket     litem approach this issue? As with most
  findings as guided by the attachment          Restrictions: Overnight Contact Between        issues involving child custody, it involves
  literature are presenting speculation and     Parents and Young Children,” Warshak           a consideration of multiple factors and,
  opinion as science in a way that can be       makes the following point:                     to some extent, professional judgment.
  very misleading.                                                                             In an article critiquing the debate
     To summarize this brief review of            No formal studies exist that assess          between the visitation and non-visitation
  the empirical scientific literature on          the impact, on younger children, of          camps, Gould and Stahl17 noted that it
  overnight visitation, the following should      sleeping in more than one setting. But       is important to consider a number of
  be noted:                                       most parents have enough experience          factors in developing appropriate joint
                                                  with this arrangement to assuage             parenting plan:
     1. The empirical literature on the           concerns about its harm to children.
        overnight visitation for infants and      Infants and toddlers often sleep away          1. The history and extent of joint
        toddlers is extremely limited and         from their mothers and away from                   parenting prior to separation
        speculative in nature, and is not         their cribs. They sleep in strollers, car       These authors suggest that if both
        robust enough to inform decisions         seats, bassinets, and parents’ arms.         parents were substantially involved
        about such visitation.                    They sleep in day care, in church, and       in the child’s care prior to separation
     2. The literature does not point to          in grandparents’ homes. Any married          and the child had no difficulty being
        any major positive or negative            couple who takes a vacation in the first     cared for by both parents, it is likely
        effects of overnight visitation for       few years of their child’s life leaves the   prudent to continue this arrangement
        this population.                          child in someone else’s care. Clinicians     after the separation. If this was not the
     3. The context of the visitation is          do not routinely advise parents against      case, it may be better to consider an
        probably more important than the          taking such vacations. If infants can        arrangement of gradually increasing
        presence or absence of the visits         tolerate sleeping away from both             visitation with the less involved parent
        themselves.                               parents during nap time at day care          over time to allow the child to adjust to
                                                  centers, on what basis can we argue          the new arrangement.
     A Practical Approach to Overnight            that sleeping away from one parent, in
        Visitation for Young Children             the familiar home of the other parent,         2. Strengths and weaknesses of
                                                  would harm children?16                              each parent
     This would appear to leave child                                                            A careful examination of what each
  custody evaluators and the courts with           It is logical to ask why it matters where   parent brings to the situation may
  little guidance about whether overnight       the child sleeps at night, if anything         be helpful to the court. It may be
  visitation for infants and toddlers should    approaching          reasonable     daytime    discovered that one parent was more
  be considered when developing a               visitation is allowed between the less-        skillful and comfortable in performing
  parenting plan. However, there are other      seen parent and the infant/toddler.            bedtime rituals, while the other was
  sources of data that can be considered        Clearly, if a parent has daytime visitation    better at daytime recreation and care. It
  when approaching this issue.                  with an infant, an infant will be put down     should be understood that most couples
     The first of these is that, on a very      for a nap at some point. If the parent lives   have skill sets in relation to parenting
  pragmatic level, this issue has in            more than half-an-hour from the child’s        that complement each other. Once the
www.vtbar.org                                   THE VERMONT BAR JOURNAL • SUMMER 2009                                                         
  parents separate, these complementary          proposition that visitation should be             8
                                                                                                      Richard A. Warshak, Blanket Restrictions:




                                                                                                                                                    Overnight Visitation for Infants and Toddlers
  abilities will now be applied in isolation.    avoided prior to the age of three should          Overnight Contact Between Parents and
                                                                                                   Young Children, 34 fam. & ConCiliation Ct.
  If these differences in parenting ability in   be considered to be overreaching.                 rev. 422, 438-439 (2000).
  different areas are marked, they should        As with most aspects of child custody             9
                                                                                                      Id.
  be considered in the development of            assessment and development of                     10
                                                                                                      Robert Bauserman, Child Adjustment in
  the joint parenting plan.                      parenting plans, decisions whether or             Joint-Custody Versus Sole Arrangements: A
                                                 not to recommend overnight visitation             Meta-Analytic Review, 16 J. Fam. psyCh. 91
                                                                                                   (2002).
     3. The temperament of the child             and the extent of such visitation depend          11
                                                                                                      Lamb, Sternberg, & Thomson, supra note
     Some children come into the world           on a number of factors—including the              5, at 400-401.
  with easy temperaments that allow              prior co-parenting history, parents’              12
                                                                                                      Marsha Kline Pruett, Rachel Ebling, &
  them to be comfortable in a variety            strengths and weaknesses, and child               Glendessa M. Insabella, Critical Aspects
                                                                                                   of Parenting Plans for Young Children:
  of environments with very little               characteristics—should be considered,             Interjecting Data into the Debate About
  modification. Others are born with             and a certain degree of clinical                  Overnights, 42 fam. Cr. rev. 39 (2004).
  much more sensitivity to environmental         judgment cannot be avoided in making              13
                                                                                                      Richard Rodgers, Introduction, in CliniCal
  change. This should be considered when         such recommendations. Experts should              assessment of malinGerinG anD DeCeption 1
  developing an initial parenting plan and       be considered to have an affirmative              (R.Rogers ed., 1988).
                                                                                                   14
                                                                                                      Judith Solomon & Carol C. George, The
  also when attempting to modify such            obligation to provide the court with              Development of Attachment in Separated
  a plan with an eye towards greater             the specific facts on which their                 and Divorced Families: Effects of Overnight
  involvement of both parents.                   recommendations regarding overnight               Visitation, Parent and Couple Variables, 1
                                                 visitation are based (empirical research,         attaChment & human Development 2 (1999);
                                                                                                   Judith Solomon & Carol C. George, The
           Summary and Conclusions               observation, opinion), information about          Effects of Attachment of Overnight Visitation
                                                 the reliability of their clinical findings        in Divorced and Separated Families: A
     The issue of overnight visitation for       (unsupported, speculative, tentative,             Longitudinal Follow-Up, in attaChment
  infants and toddlers has been hotly            probable, and definite), and the nexus            DisorGanization 243 (Judith Solomon & Carol
  debated in the professional literature.        between their data and their conclusions.         George eds., 1999).
                                                                                                   15
                                                                                                      Pruett, Ebling, & Insabella, supra note 12.
  One camp, citing attachment theory,            Requiring such rigor will serve families          16
                                                                                                      Warshak, supra note 9, at 433.
  calls for a prohibition on such visitation     best by helping courts make decisions             17
                                                                                                      Jonathan W. Gould &Philip M. Stahl, Never
  with children under the age of three.          bases on actual data as opposed to                Paint by Numbers: A Response to Kelly and
  Their position is based on concerns            “clinical lore” masquerading as science.          Lamb (2000), Solomon and Biringen (2001),
                                                                                                   and Lamb and Kelly (2001), 39 fam. Ct. rev.
  that such visitation will create insecure         ____________________                           372 (2001).
  or disorganized attachment and that               Eric G. Mart, PhD, ABPP, is a board
  this will cause problems in adjustment         certified forensic psychologist in
  in later life. The other camp calls for a      private practice. Dr. Mart is licensed
  presumption that such visitation will          as a psychologist in New Hampshire
  occur, citing the scientific literature that   and Massachusetts, and licensed as a
  indicates that children raised in joint        psychologist-doctorate in Vermont. His
  physical custody situations with high          areas of specialty include child custody,
  levels of contacts with both parents have      criminal and civil competencies, and
  better adjustment in later life across a       risk assessment. He is the author of
  wide range of measurements.                    Issue Focused Forensic Child Custody
     A careful review of the empirical           Assessment       (2007),   Munchausen’s
  literature on attachment and early             Syndrome by Proxy Reconsidered
  overnight visitation reveals that there are    (2002), and Getting Started in Forensic
  only two studies that address this issue in    Psychology Practice (2006).
  the light of attachment and only one that      ____________________
                                                 1
                                                    James C. BlaCk & DonalD J. Cantor, ChilD
  examines outcomes using behavioral             CustoDy (1989).
  measures. It must be understood that           2
                                                    Jonathan W. GoulD, ConDuCtinG sCientifiCally
  while there are many more scholarly            CrafteD ChilD CustoDy evaluations 72 (2d ed.
  articles available on this subject, they       2006).
                                                 3
                                                    Joseph GolDstein, anna freuD & alBert J.
  are not empirical in nature and generally
                                                 solnit, BeyonD the Best interests of the ChilD
  fall into the category of “clinical lore,”     (1979).
  consisting of derivative opinions and          4
                                                    In re Marriage of Burgess, 51 Cal.Rptr.2d
  case studies. As matters presently stand,      444, 913 P.2d 473 (1996).
  the research on the subject can only be
                                                 5
                                                    Michael E. Lamb, Kathleen J. Sternberg,
                                                 & Ross A. Thomson, The Effects of Divorce
  described as speculative (one or two           and Custody Arrangements on Children’s
  studies of questionable generalizability)      Behaviour, Development, and Adjustment,
  and having little clinical utility.            35 fam. & ConCiliation Ct. rev. 365 (1997).
     As a consequence of the current
                                                 6
                                                    Judith Solomon & Zeynep Biringen,
                                                 Another Look at the Developmental
  state of the empirical literature on
                                                 Research: Commentary on Kelly and Lamb’s
  early childhood visitation, it should be       ‘Using Child Development Research to Make
  understood that any expert testifying          Appropriate Custody and Access Decisions
  before the court that the available            for Young Children,’ 39 Fam. Ct. rev. 355
  scientific    evidence      supports     the   (2001).
                                                 7
                                                    Id.

www.vtbar.org                                    THE VERMONT BAR JOURNAL • SUMMER 2009                                                              

				
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