Summer 2009-#5. Overnight Visitation for Infants and Toddlers: Implications for Parenting Plans.

Author:By Eric G. Mart, PhD, ABPP (Forensic)

Vermont Bar Journal


Summer 2009-#5.

Overnight Visitation for Infants and Toddlers: Implications for Parenting Plans

THE VERMONT BAR JOURNALVolume 35, No. 2Summer 2009 Overnight Visitation for Infants and Toddlers: Implications for Parenting PlansBy Eric G. Mart, PhD, ABPP (Forensic)One of the most contentious and controversial issues that arises in the context of the development of joint parenting plans is that of overnight visitation for infants and toddlers. Input to the court on this issue from custody evaluators, visitation coordinators, and guardians ad litem varies widely depending on their individual views of the available research as well as their personal views regarding child development. Some state that there should be no overnight visitation between the noncustodial or less-seen parent until the child is at least three years of age. Others believe that relatively frequent overnight visitation with the less-seen parent or even joint custody is perfectly appropriate and even beneficial for the child. Still others appear to "split the difference" and advocate for one or two overnights per week in this situation, trying to strike a balance between the other two positions.

This raises an important question: how is it that well-meaning and knowledgeable professionals, looking at much of the same data with a sincere wish to support the best interests of the child come to such different conclusions on the issue of overnight visits for infants and toddlers? This article will explore the history of this issue, provide an overview of the relevant literature, and provide some general recommendations for how to proceed in cases where infant and toddler overnight visitation is an issue before the court.

The History of the Issue

The issue of overnight visitation for infants and toddlers cannot be understood without placing the more general issue of child custody in historical context, since society's views of children and their place in families has evolved over time. Originally, children were considered the chattel property of their father, who could do with them as he pleased. The father could sell his children into slavery, force arranged marriages, and even kill them for disobedience. This view of the prerogatives of fathers in relation to children is still seen today in certain areas of the Third World. Under these arrangements, mothers had no legal rights or recourse in relation to their children. A similar philosophy was seen in early English common law, where fathers also had a legal obligation to support and care for their children. In cases of divorce, mothers had little if any access to the family's children. However, at the beginning of the 19th century a partial shift occurred when jurists in America and Great Britain concluded that very young children needed the support of their mothers, who were considered to be better able to meet the needs of younger children than were fathers. One of the first to articulate this view, later referred to as the tender years doctrine was the British barrister Justice Thomas Noon Talfound. This doctrine as articulated by Talfound also directed that custody would revert to the father when they were seven years of age.(fn1) This idea that women are better able to parent small children has been very pervasive in Western culture from that time until the present, although not always in the same form.

American views on child-rearing and parental responsibilities were affected by the advent of the industrial revolution. The movement of large segments of the population from agrarian settings to cities with their opportunities for factory employment helped to shift the roles of fathers and mothers in family life. Fathers began to be absent from the family home for large portions of the day. Gould states that "this was the first time in history that family responsibilities were clearly divided into the role of 'provider-wage earner' for the father and 'child caretaker-nurturer' for the mother."(fn2)

These developments contributed to a gradual erosion of the assumption of paternal custody. Additionally, psychoanalytic theories and early research on the importance of mother-infant attachment began to strengthen the preference of American courts for placing children of divorce with their mothers. Drawing on psychoanalytic theory, Goldstein, Freud, and Solnit postulated that children have a "psychological parent" and that the relationship between the child and his parent is central to healthy development.(fn3)Relationships with adults other than the psychological parent were deemed to be of minimal importance. These authors went so far as to state that for children under the age of two, a separation of as little as two days could cause permanent and irreversible psychological damage to the child. Because this relationship was so important, these authors urged the courts to give the psychological parent full legal and physical custody, including full control over any visitation with the other parent. These authors also argued that when a young child was placed with a surrogate parent for a year or more, the surrogate should automatically be considered the psychological parent of that child.

Despite the fact that this theory was not based on empirical research and it was ultimately shown that children form multiple attachments, the idea of the psychological parent has been extremely influential up to the present time. For example, in the case of In re Marriage of Burgess, the court was required to decide whether a mother was to be allowed to relocate and take her children with her, even though this would greatly reduce the father's access to the children.(fn4) Judith Wallerstein, in an amica curiae brief, emphasized that the children's contact with their primary caretaker (in this case the mother) was far more important than their contact with their father. Additionally, Wallerstein argued that as long as there was some degree of contact between children and their father, the attenuation of the paternal relationship was not of great importance. Although her opinions were based on observational rather than empirical research with a self-referred sample, this approach to primary location was widely adopted and codified in many jurisdictions throughout the United States.

In the 1970s, a countercurrent began to flow against the presumption of maternal custody of young children. With changing economic circumstances and the rise of feminism, increasing numbers of women began to move into the workforce. This had several effects. One of these was that the traditional father/ provider-mother/nurturer roles began to blur and fathers began to take on more child-rearing duties. This led many jurisdictions to begin to consider the possibility of joint custody arrangements in which parents would split child care responsibilities and custodial time. At the same time, social scientists began to look at the role of the father and child...

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