Family Law Unraveled
The latest from Margaret's blog
Friday, November 21, 2014
My neighborhood is teeming with attached babies. They’re peeking out from elaborate wraps which swaddle them onto the backs of their moms or snuggling into pouches strapped tightly to the chests of their dads. After the lights go out they’re sharing the family bed and breastfeeding off and on throughout the night, taking sips between naps. Attachment parenting is all the rage, which goes to prove there truly is nothing new under the sun. We return to our animal past, we acknowledge the wisdom of ancient cultures and the common practices of the developing world, and we claim it all as new and fresh.
I recently went to a seminar on attachment theory – the social science underpinning the parenting practices of my neighbors – and its relation to custody cases. Attachment theory is about the bond a baby forms with her parent or caregiver and the importance of that bond in later life.
The idea is that a parent who is consistently available, attuned and responsive to an infant’s needs allows that infant to develop a sense of security, a base from which she can explore the world. Children who are securely attached as infants, the theory goes, grow up with stronger self-esteem, are more self-reliant, have more successful social relationships, and experience less depression and anxiety as adults. All of which makes sense to me at an intuitive level as a daughter, a mother, and a family lawyer.
But it’s complicated. Pretty much, when we’re talking about this type of parenting, we’re talking about mom. What about the dark streak of regression in this vision, the look-back to times more oppressive, in actuality, than pastoral. What about the woman who does not want to use her body this way, who prefers to have her baby sleep in his own room so she can rest more soundly or have sex with her partner or read a magazine? Or the woman – most women – who needs to get up and go to work in the morning, whose infant cannot be attached to her body all day because she’s running the cash register or cleaning the hotel room or trying cases? Are we bad if we don’t want our bodies to be vessels? If we don’t choose to breastfeed, if we dislike co-sleeping?
Back in the seminar, I could see the hackles rising on the lawyers in attendance. We were shifting uncomfortably in our seats even before the psychologists began to address how this theory might guide courts in the establishment of parenting plans. We were all connecting the unspoken dots, worrying how this theory could be used by judges to minimize the role of divorced or separated fathers in the lives of young children. If supporting a baby’s relationship with the parent to whom she is more attached is better for the baby, and if no extended periods of time should be spent away from mom while a baby (or toddler) is breastfeeding on demand, how can babies and young children become similarly attached to their dads? The notion, prevalent for so long, that fathers are inferior caregivers when it comes to babies or young children, is no longer embodied in the law. And the cultural norm has shifted as well. Most of my clients, both mothers and fathers, expect that dads will engage in hands-on, day-to-day parenting. And there is certainly lots of social science to support the importance of paternal involvement in children’s lives.
So what do we conclude? If what’s best for the child really is to maximize the role of the primary caregiver until she’s two or three, then dads should just suck it up. But if there is no hierarchy of attachment, then maybe the stress to the baby of spending time away from the primary caregiver will be outweighed by the opportunity to develop that same kind of relationship with her father. I don’t know the answer. But I do know this: I have represented fathers of infants who ache to spend more time with their babies. And I have represented mothers of infants who do not want to be always available to them, who want time away, who want the fathers to share the burden as well as the joy. And if those parents are happier with that arrangement, doesn’t that benefit their babies?
Maybe the popularity of attachment parenting will swing the pendulum away from joint custody for young children. And maybe not. But one thing is certain: judges’ determinations about what’s in the best interest of children will always be informed by the common culture in which we all live. And right now, from my window, I’m seeing an awful lot of babies attached to their mothers’ bodies.
Sunday, September 14, 2014
Sooner or later, it had to happen. Nestled cozily in my in-box between an email from a grumpy opposing attorney and a bar association solicitation, there it was: NOW CASTING DIVORCED COUPLES FOR NEW NBC SERIES. Of course, I clicked….
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Friday, May 09, 2014
On Monday, May 5th, I was admitted to the bar of the Supreme Court. I wish I could say it was because one of my cases is headed there and I needed to get admitted in order to argue before…
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Friday, April 25, 2014
Is it too easy to get divorced? Huh? That was my reaction when I got a call from the producer of a radio show who wanted to know if I could discuss/debate that issue with a lawyer who co-chairs the…
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