Family Law Unraveled

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Attached at the Hip

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.


3 thoughts on “Attached at the Hip

  1. Steven Cohen says:

    There are problems with the current push to use attachment theory in custody litigation. It is often based on comparing attachment to each parent. But in today’s society, I would not be surprised to find that some children are more attached to the daycare provider or the nanny than either parent. But the psychologists who push the use of “attachment tests” to determine custody do not measure the attachment to these other figures.

    It is frightening to think that there are so who are so enamored of a single test that they will give it primary weight in making a custody determination.

    I have had some lively discussions with Marla about this in the past. I was asked to be on that panel to counter Marla’s arguments, but I had other commitments.

    PS: Your website looks really good. Nice pictures of all of you. I received the e-mail and took a look. That’s how i came to read your blog on attachment.

  2. John Shanken-Kaye says:

    The problems with attachment theory as a tool in custody disputes are legion. I agree with what Steve says above in terms of multiple attachments that are never explored. But there is also conflicting research that suggests the frequency of dual attachments and the benefits of early infant overnights in developing secure attachments to both parents.
    There is also research from Israel showing that the communal raising of infants, where there are many caregivers is a positive model that has not created adults with insecurities and low self-esteem.
    Finally, I have seen no controlled, long-term longitudinal research to support the model. The only research of which I am aware is post-hoc research that, at best, attributes causation to historical events which are determined after the fact.
    I think the model has minor utility but I find it far too subjective and in that determining this “thing” called attachment in artificial situations, does not accurately capture the variability present in the emotional lives of all infants and indeed in their caregivers.
    BTW, love the new web site, Congrats!

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