Family Lawyers need re-skilling

Posted on June 20, 2013 by

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“Shared Residential Custody Relevant Research for Family Lawyers”

By Linda Nielsen (Wake Forest University, North Carolina)

  • Linda Nielsen, Ed.D., is a professor of adolescent and edu­cational psychology at Wake Forest University in Winston Salem, North Carolina. She has written five books and numerous academic articles on father-daughter relationships, with a special focus on divorced fathers.

The following adapted commentary about shared parenting is based on the above  article by Dr. Linda Nielsen which first appeared in the Family Law Section of the North Carolina Bar Association. The text is complete but sub-headings have been added for ease of reading.

Section Vol. 33, No. 1 • October 2012

One of the most controversial and complex issues related to cus­tody and parenting plans is how parents should divide the residential parenting time. That is, how much time should the children live with each parent and how should that time be arranged ?

What is the best parenting plan in terms of the long-term outcomes for the children ?

In families where the children live 35%-50% time with each parent after their divorce, the terms shared residential custody, shared care or shared parenting are used interchangeably.

While many states have already revised their custody laws so that more shared parent­ing occurs, the majority of family lawyers must still guide their cli­ents through the complicated maze of questions and decisions about shared parenting.

Too much reliance

Understandably, family lawyers and other professionals involved in custody decisions and crafting parenting plans sometimes rely too heavily on the one or two studies that happen to receive the most attention at conferences or in journals. Indeed some of the so-called “reviews” of the research in fact present only a handful of the avail­able studies. For example, a recent article by Belinda Fehlberg at the University of Oxford law school which argues against shared residen­tial custody claims to be based on “international research”. Yet her ar­ticle only cites four of the nearly two dozen studies now available on this topic.1 Likewise another British law school professor, Liz Trinder, cites only five studies that compared shared care and primary care families in her “review of recent research” arguing against shared par­enting.2

Link to positive outcomes

A growing and substantial body of research has found more posi­tive outcomes for children who live 35% to 50% of the time with both parents. Compared to children who live with only one parent (which is referred to as primary care or as sole residential custody) and spend varying amounts of time with their non-residential parent (almost always their father), children in shared parenting families generally are generally better off in regard to: academic and cognitive devel­opment, emotional and psychological health, stress related illnesses, social behavior, and drinking, drug use, delinquent and aggression. More compelling still, the shared care children have more commu­nicative, more enduring and more meaningful relationships with their fathers than other children of divorce. These conclusions are based on data from more than two dozen studies conducted over the past twenty years and involving approximately 6,000 children from shared parenting families. All of these studies were published in peer reviewed journals and directly compared children in shared care and sole care families.3,4

‘Sleepovers’ benficial

It is also worth noting that a clear linear relation­ship has been established between overnight fathering time and the quality of the father-child relationship two to three years later. In this recent longitudinal study, regardless of the level of conflict between the parents, the amount of overnight time non-residential fathers had spent with their children in seventh grade was highly correlated with the quality of their relationships three years later.5

Several other interesting and surprising findings have emerged from these two dozen studies on shared parenting families.

  • First, most shared parenting families do not fail, meaning that most chil­dren do not tend over time to drift back to live full time with their mothers.
  • Second, compared to parents who do not share, parents who succeed at shared parenting are not necessarily far more coop­erative or conflict free – the exception being that they do not have a history of violence or physical abuse in their relationship.
  • Third, a substantial number of these parents did not initially want to share the residential custody. Many of their arrangements were negotiated with mediators or lawyers.
  • Fourth, even when there is ongoing ver­bal conflict, these families can succeed and the children still benefit from the shared parenting.

In other words, the benefits of living with both parents generally counter the negative impact of parents’ ongo­ing conflicts. It has long been acknowledged that children tend to be more stressed, anxious and depressed when their parents drag them into the middle of their on-going and unresolved conflicts – in intact families as well as in divorced families. Shared residential custody, however, usually helps to off-set this stress, rather than increase it.

Overall then, the benefits associated with shared parenting outweigh the negative impact of parents’ conflicts and the inconvenience of liv­ing in two homes.

These studies, however, do not tell us how many of these children started living with both parents as infants or as pre-schoolers [ nursery kindergarden]. As the 2012 national conference of the Association of Family and Concilia­tion Courts and the July issue of Family Court Review clearly demon­strate, there is still not enough data to make recommendations about the best parenting plans for infants and preschoolers. Likewise, the editors of the most recent book of research on parenting plans ex­plicitly state: “Overnight time sharing for infants, toddlers and pre­schoolers is an emerging area of research where general conclusions based on research cannot yet be offered and where there remains im­portant debate” (p. 579).6

The under 5s

Unfortunately there are only three studies that have compared children under the age of five in shared care and primary care fami­lies – two of which have serious methodological problems that limit their usefulness in making recommendations for the vast majority of divorcing parents. The first and oldest study by Solomon and George is now nearly 15-years-old7. In this study, 40 infants between one- and two-years-olds who spent any overnight time with their fathers were compared to 49 infants who never overnighted. Many overnighting infants had never lived with their father before their parents sepa­rated. Others went for weeks without seeing him before spending a night in his home. Moreover, the overnighting infants’ parents had more hostile, dysfunctional relationships, often involving restraining orders for physical violence. Although the overnighting infants had higher scores on a laboratory test designed to assess how “securely attached” they were to their mothers, the differences were too small to be statistically significant. Commenting on how their study is often misused to argue against overnights for infants, the authors write: “The interpretation of our findings is obviously problematic”. “Our study is used in a variety of different ways, including some that I do not agree with or that the data do not support”.8

Yale / Pruett, study

The second and more methodologically sound study was headed by Yale University researcher, Marsha Pruett, and involved 132 children ages two to six 9. Data were gathered from both parents, not just from the mothers as in the previous study. In terms of sleep problems, depression, anxiety, aggression or social withdrawal, children under the age of three who overnighted were similar to those who did not overnight. On the other hand, the overnighting two year olds were more irritable and the two and three year olds were less persistent at tasks. For the four to six year olds, however, the overnighting children had fewer problems than the other children. Those overnighters who did the least well were the ones with inconsistent schedules and multiple caretakers. The girls who overnighted generally fared better than boys – a finding which the researchers attributed to girls being more socially and verbally mature than boys their age. Overall then, overnighting [sleepovers] was not associated with serious, ongoing problems and was clearly advantageous for children ages four to six.

Jennifer McIntosh’s studies

Unlike these first two studies, the third study was not published in a peer reviewed academic journal. This report headed by Jennifer McIntosh was commissioned by the Australian government.10 The limitations of this study have been enumerated in detail elsewhere.4,11,12,13 But because it has received so much attention,14 it is worth noting several of its shortcomings.:

First, nearly 90% of the parents with children under age two had never been married to one another and nearly 30% had never lived together. Moreover, for children under age two, data were only gathered for 14 to 18 children in primary care and only 43 to 59 children in shared care.

More problematic still, “shared care” was so broadly defined (children who spent anywhere from four to fifteen nights a month with their non-residential parent) that nothing can be determined regarding which patterns of overnight care are best or worst. Although shared care children had slightly higher scores on some measures, the differences between the shared care and primary care infants were not statistically significant on irritability, physical health, monitoring their mothers’ whereabouts, or negative responses to strangers.

When many of these same children were assessed again two years later, there were only 25 children in shared care (which the researchers were now defining as 35-50% overnight time with each parent). Again, the differences between the shared care and primary care children were not statistically significant, except for wheezing which was more common in shared care children.

When the children were measured again as 4 to 5 year olds, for some reason the researchers added several hundred “new” children to their sample. Still, there were no statistically significant differences in the shared care and primary care groups except for hyperactivity/attention deficit disorder which was more common in shared care families – families who also had a higher percentage of boys. This matters because hyperactivity/attention deficit is two to three times more common for boys than for girls in the general population. In any case, given the small statistical differences in outcomes and the many flaws in this study, it is somewhat surprising that it has been the focus of so much discussion on shared parenting.

In sum then, the research on overnighting for infants and preschoolers does not provide enough data to guide us in making public policy about custody or in making decisions about individual children.

The debate about overnighting [sleepovers – RW] involves a vast body of research (and theory) on each parents’ impact on their child during infancy and the preschool years – research that encompasses far more than the just early childhood attachment. As pointed out in a recent review in Family Law Quarterly, attachment issues in child custody are “an additive factor, not a determinative one”.15 For overviews of the vast body of research on early childhood development as it relates to overnighting and shared parenting, consult the issues of Family Court Review in July 2002, July 2011, and July 2012. Again, there is no consensus among experts and no synthesis of recent research in regard to overnighting for infants and young children. More bluntly put, we cannot base parenting plans or custody agreements on the belief that infants and toddlers have a primary attachment to only one caregiver and that this primary bond will be jeopardized by overnights with their other parent.

Given the confusion among many family court workers and family lawyers over “what the research shows”, we must take special care not to be “woozled” by one or two studies – or by articles that claim to be reviews of the research. Dr. Richard Gelles a sociologist and expert in domestic violence research warned us years ago about the dangers of being “woozled”.16 Describing how the research on domestic violence was being misconstrued and manipulated by advocacy groups, Gelles coined the term “woozle effect”. He was referring to situations where only one or two studies were being discussed or cited often enough that they came to be held as “true” by people who had never even read the studies. Even if completely untrue, a single study (the woozle) can become “scientific evidence” that is used to promote a particular agenda or uphold our personal opinions. In my recent AFCC presentation, I described these “woozles” as “myths that are harder to kill than a vampire”. Like vampires, these unfounded beliefs keep resurrecting themselves even after seeming to have died off and to have been defeated by more balanced, more complete data. In our efforts to arrange the best possible parenting plans and custody agreements for children whose parents are no longer living together, we must be ever wary of the woozles and the vampires. •

E N D

Linda Nielsen, Ed.D., is a professor of adolescent and edu­cational psychology at Wake Forest University in Winston Salem, N.C. She has written five books and numerous academic articles on father-daughter relationships, with a special focus on divorced fathers. Her reviews of the research on shared residential custody have been published in the Journal of Divorce & Remarriage and in the American Journal of Family Law. As an expert witness, she has presented this research in a number of recent custody cases. She has also presented her research for three years at the annual conference of the Association of Family and Conciliatory Courts. For copies of her articles, email nielsen@wfu.edu or download them from her website http://www.wfu.edu/~nielsen

References

1. Fehlberg, B.; Smyth, B.; Maclean, M.; Roberts, C. Caring for Children After Parental Separation: Would Legislation for Shared Parenting Time Help Children? International Journal of Law, Policy and the Family 2011, 1-16.

2. Trinder, L. Shared Residence: A Review of Recent Research Evidence. Child and Family Law Quarterly 2010, 22, 475-498.

3. Nielsen, L. Shared Parenting After Divorce: A Review of Shared Residential Parenting Research. Journal of Divorce and Remarriage 2011, 52, 586-609.

4. Nielsen, L. Shared Residential Custody: A Recent Research Review. American Journal of Family Law (forthcoming issue) 2013.

5. Fabricius, W.; Sokol, K.; Diaz, P.; Braver, S. Parenting Time, Parent Conflict, Parent-Child Relationships and Children’s Physical Health. In Parenting Plan Evaluations: Applied Research for the Family Court; Kuehnle, R., Drozd, R., Eds.; OxfordUniversity Press: Cam­bridge, 2012.

6. Kuehnle, R.; Drozd, R. Parenting Plan Evaluations: Applied Re­search for the Family Court; OxfordUniversity Press: Cambridge, 2012.

7. Solomon, J.; George, L. The Effects on Attachment of Overnight Visitation on Divorced and Separated Families: A Longitudinal Fol­low Up. In Attachment Disorganization; Solomon, J. G. L., Ed.; Guil­ford: New York, 1999.

8. Solomon, J. An Attachment Theory Framework for Planning Infant and Toddler Visitation in Never Married and Divorced Fami­lies. In Handbook of Divorce and Custody; Gunsberg, L., Hymowitz, P., Eds.; Analytic Press: Hillsdale, NJ, 2012.

9. Pruett, M.; Insabellla, G.; Gustafson, K. Collaborative Divorce Project. Family Court Review 2005, 43, 38-51.

10. McIntosh, J.; Smyth, B.; Kelaher, M.; Wells, Y. L. C. Post sepa­ration parenting arrangements: outcomes for infants and children. 2010. Sydney, Australia, Australian Government. Ref Type: Report

11. Parkinson, P.; Cashmore, J. Parenting Arrangements for Young Children: Messages for Research. Australian Journal of Family Law 2011, 25, 236-257.

12. Lamb, M. Critical Analysis of Research on Parenting Plans and Children’s Well-Being. In Parenting Plan Evaluations: Applied Research for the Family Court; Kuehnle, K., Drozd, L., Eds.; OxfordUniversity Press: New York, 2012.

13. Warshak, R. Securing children’s best interests while resisting the lure of simple solutions. May, 2012. 2012. Haifa, Israel, Confer­ence: Parenting in the eyes of practice and the law. Ref Type: Confer­ence Proceeding

14. Zirkel, K. Custody and Placement of Infants and Toddlers: To­wards a Synthesis of Recent Research. Wisconsin Journal of Family Law 2012, 32, 1-4.

15. Ludolph, P.; Dale, M. Attachment in Child Custody: An Ad­ditive Factor, Not a Determinative One. Family Law Quarterly 2012.

16. Gelles, R. Violence in the Family: A Review of Research in the Seventies. Journal of Marriage and Family 1980, 42, 873-885.

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