Montenegro Brief — © 2002 by www.cflr.com

Section III.   THE MEANING OF STABILITY AND CONTINUITY IN A CHILD’S LIFE
    A. Children Form Multiple Attachments
    B. Children Suffer from Having Only a Single Caretaker
    C. Divorce Research Contributes to Our Understanding of Attachment in children
       1. Parental Absence after Divorce is Harmful to Children
       2. Custodial Parental Adjustment and Parenting Skills Significantly Affect Children After Divorce
      3. Interparental Conflict After Divorce is Harmful to Children
      4. Economic Hardship After Divorce is Harmful to Children
      5. Life Stress After Divorce is Harmful to Children
    D. The Extended Family and Community Contribute Substantially to the Stability of the Child’s World
    E. Time Spent with a Child is not an Adequate Measure of the Primacy of the Relationship
    F. Summary: Continuity and Stability From a Child’s Perspective

INTRODUCTION

The amici curiae here offer this brief to contribute to this Court’s analysis of the appropriate application of the “change of circumstances” rule in evaluating the best interest of the child in custody cases. This brief focuses on current psychological research that directly impacts our understanding of the intended and unintended effects of judicial decisions in this area on the lives of children and families.

The amici curiae here include leading mental health professionals deeply involved both in research and in the practical application of research to help families cope with the impact of divorce on children. Mary Duryee, Ph.D., for example, is the founding Director of Family Court Services of Alameda County, where she served for twelve years. She is the primary mental health professional serving on the family law faculty of the California Center for Judicial Education and Research. Sandra E. Purnell, J.D., Ph.D., is a Certified Family Law Specialist and member of the bar of California and Oregon; she teaches gender and communication and Eastern Oregon University and is a member of the Parenting Plan Work Group of the Oregon Judicial Department. Each of the other amici brings extensive education, research, field experience and professional acumen as psychologists, mediators, and educators to this issue. Further details regarding the amici curiae may be found at the end of this brief.

The amici wish to alert the Court to an increasingly complex understanding of what it means to maintain continuity and stability in custodial arrangements for children following separation and divorce. The Court of Appeal in the instant matter emphasized the fact that the child had been in appellant’s ‘primary care’ since birth and cited the Supreme Court’s emphasis on the need for “continuity and stability:” Montenegro v. Diaz (2000) 82 Cal.App.4^th 1, 17 (vacated opinion).

From a psychological point of view, a change of circumstances analysis is inevitably tied to the concept of “continuity and stability in custodial arrangements:” balancing the need to be able to adjust arrangements if something significant occurs, over and against the need to preserve continuity and stability. How one understands and defines continuity and stability is a foundational aspect of the analysis of a change of circumstances.

Courts are rightly concerned about protecting the legal process from abusive, repetitive litigation. In re Marriage of Carney (1979) 24 Cal.3d 725, 730. The change of circumstance principle also recognizes the undesirability of having to determine a custodial arrangement that would be suitable for the entire length of the child’s minority. Custodial arrangements, in their nature, differ from other court decisions in that they not only respond to past behavior and circumstance, but also attempt to order future relationships. Courts do not have the ability to predict the future, any more than do psychologists, parents or the ‘man on the street.’

A problem we all face in the child custody arena is that we have asked our legal institutions to resolve problems for which it was not initially designed. Legal decision-making is designed to determine facts through the ordered presentation of evidence, and make judgments within the framework of statute and precedent, with little or no concern for the subsequent effect of the decision on the disputants, much less on those not a party to the decision. It is event-driven: requests are followed by decisions, all of which occur according to pre-determined deadlines, and with the finality of res judicata.

This system was not designed to resolve problems in families, that is, problems in which we expect the disputants to have an on-going relationship after the decision. Such decisions, by definition, attempt to order future relationships rather than resolve past wrong-doing and focus on people not formally joined in the process (i.e. the children).

The event-driven ‘snapshot’ nature of the legal process stands in contrast to the fluid ‘movie’ of the parents’ job of raising children. Child development experts suggest that courts acknowledge the process of child development and provide orders that are “age-based and [include] stepwise increases” [1] as if the court itself would need to be in an on-going relationship with the family.

Introducing psychological principles into this mix does not resolve the inherent conflict between the nature of the resolution process and the nature of the conflicts to be resolved. That is a larger task. The introduction of mediation to custody and visitation disputes, and the advent of other dispute resolution tools, such as judicial case management, special masters, minor’s counsel, are all attempts to soften the misfit between the nature of the problem and the nature of the legal structure we use to address the problem.

Acknowledging the imperfection of our current situation, we may still find help from both the literature about the effect of divorce on families and the research concerning resilience in children. Given what we know about child development, resilience in children, and the effects of divorce on children, what are the principles that would guide us in evaluating whether the court should entertain a request for change in custody or parenting plan?

II.

APPLICATION OF THE CHANGE OF CIRCUMSTANCES RULE IS NOT MANDATED IN THIS CASE

The case at bar was clearly anticipated and left undecided by this court in Burchard v. Garay (1986) 42 Cal.3d 531, 538. Montenegro v. Diaz is the hypothetical described by the majority in Burchard in which the changed circumstance rule may conflict with the true best interest of the child because the original custody arrangement never was in the best interest of the child but it is enshrined by the change of circumstance rule. This court suggested two illustrative situations that might pose such a conflict:

The concurring Justices shared this concern. They concluded that such a conflict between the change of circumstances rule and the best interest standard should be resolved by avoiding a “mechanical and formalistic use of the [change of circumstances] rule itself.” (Id. At 550). Despite their defense of the change of circumstances rule in general, the concurring Justices concluded that “Nothing in the case law of the majority states, or in any of the literature in this area, suggests such a rigid application of the changed circumstances standard. . . . Clearly, courts can easily accommodate the ‘worst case’ hypothetical within existing law.” (Id., citation omitted). The present case is this court’s opportunity to indicate how such a case should be handled, with proper consideration of the child’s true circumstances and best interests.

In another context, this court has indicated that there are situations in which a change of circumstance need not be shown in order to warrant judicial modification of a parenting arrangement. In In re Marriage of Burgess (1996) 13 Cal.4^th 25, in the now-famous footnote 12, this court observed that “a different analysis may be required when parents share joint physical custody of the minor children under an existing order and in fact, and one parent seeks to relocate with the minor children. In such cases, the custody order “may be modified or terminated upon the petition of one or both parents or on the court’s own motion if it is shown that the best interest of the child requires modification or termination of the order.” (Fam Code, § 3087). Although no case has yet decided whether this rule applies only in the context of a move-away, it appears to state the principle that, where there is an existing, functioning shared custody arrangement, the change of circumstances rule may drop out of the calculus. This would be a sensible approach, given the court’s original rationale for the change of circumstances rule. Where there is an effective co-parenting arrangement, there is no issue of making a dramatic change in a child’s living situation. It is not necessary to “remove” the child from one parent and “give” him to the other parent. Cf. Marriage of Carney (1979) 24 Cal.3d 725, 730. The child has an established relationship with two parents and, in effect, has two homes.

In the instant case, the parties had a long-standing shared parenting arrangement. Based upon the last stipulated order, which only slightly modified those that had come before, the child spent approximately 40% of his time with his father and 60% of his time with his mother. Clearly, any “change in custody” would, in this context, consist of an adjustment of the relative time-share between the parents. The order of the trial court would have resulted in a timeshare of approximately 76% with father and 24% with mother. Clearly, this is not a situation in which a child is being torn from the only source of security and stability in his life – at age 5, Gregory had two homes and the court order would have resulted in his spending somewhat more time in one and less in the other.

In this respect, the case at bar is very similar to the influential decision in In re Marriage of Birnbaum (1989) 211 Cal.App.3d 1508 (1^st Appellate District, per King, J.). In Birnbaum the parties shared parenting time in a ratio of approximately 29% with father and 71% with mother. Anticipating Burgess’ footnote 12, the court held that “when parents have joint physical custody of their children, an order modifying the co-parenting residential arrangement does not constitute a change of custody.” Id. This decision realistically addressed the fact that stability and continuity for a child who has an established co-parenting residential arrangement involves maintaining such an arrangement but does not preclude adjusting it to better fit the child’s and family’s needs.

The court should also consider the period over which in alleged change of circumstances might have occurred. It has been customary to think in terms of a change since entry of the last order. While appropriate to general notions of judicial economy, this time frame is unrealistic in the present context. A child’s life is hardly measured from court order to court order. If a child’s situation has gradually deteriorated over a period of years and finally reached the point that his or her interests would be served by a change in the residential plan, the interests of the child would be served by taking the longer view rather than simply checking the snapshot of the last court order. In this respect, a recent spousal support decision is instructive. In In re Marriage of Shaffer (1999) 69 Cal.App.4^th 801 (“Shaffer II”), the court concluded that, while there had been no significant change of circumstances since the last order, it was appropriate to take a longer view and consider the entire course of events since the parties’ divorce, including a series of court orders and requests for modification. Id. at 812. Changes that occur gradually can slip through the cracks of judicial analysis if the focus is limited to what has happened since the last hearing or order.

The mental health professional amici, based upon their combined research, experience and observation of families struggling with the impact of divorce on children, have concluded that, for many families, the change of circumstances rule is a barrier to the type of age appropriate modifications a court should be free to direct where the child has a significant relationship with each parent. Two decades of experience under the 1980 custody mediation mandate has proven that mediation is a more effective practical tool for screening out re-litigation than the change of circumstances rule.

III.

THE MEANING OF STABILITY AND CONTINUITY IN A CHILD’S LIFE

What does it means to preserve stability and continuity in a child’s life? What are the specific components of continuity in the child’s life that should be preserved? A small tome published in the 1970's became a touchstone for custody decisions in family law, arguing that a judge should determine the primary caretaker of the child and assign the rights of custody to that (one) person exclusively and in perpetuity. It carried significant weight of psychological authority, being co-written by a psychiatrist and the daughter of Sigmund Freud, and represented a main stem of psychological thought at that point. [2] Psychoanalytic thinking has contributed enormously to our understanding of child development and has had more impact on the thinking of those charged with making legal decisions about children than most theoretical positions. [3]

Margaret Mahler, whose research spanned several decades in the 1940's and 1950's, was a central figure in this theoretical domain. [4] Of particular importance has been her notion of ‘separation-individuation’ and the development of stable internal objects [5] within the child. She posited a period of lack of differentiation between mother and infant (“normal symbiosis”), and suggested the development of a separate self occurred through a process of differentiation between mother and child. The father was thought to be a motivator for this process, coaxing the child out of the symbiotic relationship with the mother. This relationship of undifferentiation appears to require that the infant be symbiotically bound with only one other person ~ thus, the need for a primary caretaker. This understanding of the concept of the primary caretaker is compelling in its elegance and simplicity.

Based on the analytic literature of child development, and the theory of attachment, an important foundation was laid in Beyond the Best Interest of the Child by introducing the idea that a custodial determination should be based not only on an assessment of each parent (that is, a comparison of their individual strengths and weaknesses), but also on the nature of the pre-existing and on-going relationship between each parent and child. In other words, a relational, or child-centered perspective was introduced which was both new and a critically important additional criterion for determining custody.

In this treatise, Goldstein, Freud and Solnit introduced the idea of a “psychological parent” as a means of tying psychological theory to legal issues. They posited that a child may have only one psychological parent, and the court’s efforts should be directed to discovering who that parent was. When found, the child should be placed permanently with that person, and she or he would have the ability to determine the degree of the child’s contact with all others. When that determination had been made, all others (fathers included) became ‘strangers to the family:’ the family was redefined in that moment to include only the psychological parent and the child or children. Great harm was predicted otherwise:

Since the 1970’s, psychological understanding has expanded considerably our understanding of what a child-centered view of stability and continuity should include. John Bowlby, working during the same period of time for the World Health Organization with orphaned children from World War II, developed a theory of attachment, based on a combination of psychoanalytic theory, evolutionary theory and ethnology. [7] “The development of attachments to parents and other important caregivers constitutes one of the most critical achievements of the first year of life. These enduring ties play essential formative roles in later social and emotional functioning. Infant-parent attachments promote a sense of security, the beginnings of self-confidence, and the development of trust in other human beings.” [8] His work continued well into the 1980’s and has been built upon by Ainsworth and others. [9] In this work there is still an emphasis and acknowledgement of the critical part played by the central caregivers in a child’s life. However, ‘primary’ is no longer defined as ‘only.’ It has come to mean the ‘preferred’ person, the person the child prefers as a provider of comfort at certain times, and especially at certain ages. The child’s world, in this view, has been repopulated with significant others, the loss of any of whom would have detrimental effect. From this viewpoint, it would be more accurate to speak of a child’s central caregivers: the inner circle, so to speak, of people who are central to a child’s world.

Continuing the partial catalogue of psychological contributions since the 1970’s, it is noteworthy that the question of what is the father’s contribution to the development of the child was not posed as a research question in the early research. The first collection of published articles and research on this subject did not appear until 1970, and was then, very new. [10] Also, major work has also been done on the effects of divorce on children and parents in the past twenty years. Research in child development has made dramatic advances, particularly in the areas of infant development and attachment. Most recently, a new area has focused on resiliency in children. This body of work asks the question: ‘why do some children survive and even thrive in adverse circumstances?’

Together these lead to a greatly expanded and elaborated understanding of what it means to support the “continuity and stability” of the world of a child.

A. Children Form Multiple Attachments

Daniel Stern, through his extensive synthesis of research from several fields, calls into question Mahler’s description of the initial phase, that of a undifferentiated symbiotic union with the mother: [11] :

Stern both builds on what has gone before and significantly advances a model of infant development, which does not posit a primary undifferentiated relationship out of which the infant hatches, but rather sees the infant as an active participant in his or her unfolding relationships. [13] In this understanding, the relationship between infant and adult is co-created out of a series of repeated interactions that have sufficient ‘in-tune-ment’ of each to the other and are sufficiently predictable and reliable. Each relationship that an infant forms is unique to the set of interactions that occur within that dyad. The infant is seen as capable of forming distinctly different relationships with each person in his or her orbit and each relationship elicits unique aspects of the infant.

Other researchers concur: “The recognition that children usually have more than one loving relationship that provides emotional security has led to a greater appreciation of the importance of facilitating attachments and a corresponding de-emphasis on the trauma of separations…It is now generally accepted that the finding that children are distressed when separated from a parent and left with a stranger is not at all relevant to the situation where children are separated from one parent to whom they are attached and spend time with another parent to whom they are attached. Michael Lamb, [14] a leading authority on attachment, summarized two decades of research as demonstrating that the presence of one attachment figure provides sufficient emotional security to allow a child to avoid separation anxiety when separated from another attachment figure.” [15]

One study videotaped infant responses to multiple caregivers and verified that infants seemed to form unique relationships with each caregiver, rather than relationships built on the prototypical one offered by a primary caretaker: “Infants and caregivers appeared to form unique relationships in which infants’ relational behavior with non-maternal caregivers was not based on a template developed from mother-child interactions. Rather, these relationships seemed based on reciprocal exchanges between infant and caregiver and the individual qualities that each brought to the engagement. Each caregiving relationship apparently contributed to the infant’s formation of a sense of self and other, and was a valuable element in their social and emotional environment. [16]

In other words, the notion of a primary caretaker has shifted in meaning in a subtle but very powerful manner. Rather than referring to the one and only, exclusive, first relationship of an infant, it has come to mean that person who the infant may prefer in times of stress for comfort. It appears that this preference of the infant may wane after the first two years, or may shift to a different caretaker. Most importantly, we see that infants and children rely on a number of important attachments, and that each attachment provides a unique opportunity for expressions of selfhood and for learning strategies to cope with the world. Within the mainstream psychological community, the metaphor has changed and the paradigm has changed, although, as if to create confusion, the language we use has not. Where before we saw the relationship with the primary caretaker as the lifeline, the single strand which held the infant up, safe from catastrophic dangers to the self such as alienation and detachment, we now see the infant and child held up by a web – an net with multiple attachment points. Each end of the lines of the net are affixed to anchor points representing important relationships, very much the same way in which a mountain climber always relies on more than one anchor point for his lifeline. For children, surviving and thriving depend on a redundancy of support.

B. Children Suffer from Having Only a Single Caretaker

For this we need go no further than Bowlby himself: “I want also to emphasize that, despite voices to the contrary, looking after babies and young children is not job for a single person. If the job is to be well done and the child’s principal caregiver is not to be too exhausted, the caregiver herself (or himself) needs a great deal of assistance. From whom that help comes will vary: very often it is the other parent; in many societies, including more often than is realized, our own, it comes from a grandmother… In most societies throughout the world these facts have been, and still are, taken for granted and the society organized accordingly. [17]

Research in the area of resilience -- discovering what causes children to do well in the midst of adversity --developed out of the realization that some children are successful even in adverse circumstances, while others are not. [20] What caused them to do well? “Results of these studies have been remarkably consistent in pointing to qualities of child and environment that are associated in many studies with competence or better psychosocial functioning during or following adverse experiences.” [21] The qualities found in the successful children were: good intellectual functioning; an easy-going, appealing disposition; self-confidence; ability to realize talents; and faith. The qualities found in their families: a close relationship to a caring parent figure; authoritative parenting which included high expectations, warmth, and structure; socioeconomic advantages; and, connections to extended supportive family networks. The qualities in the extra-familial context were: bonds to pro-social adults outside the family; connections to pro-social organizations (churches, sports groups, etc.); and, `attending effective schools.

It was not that all of these qualities were required for any given child. It seems that each of these “domains” of life (one’s inner resources, one’s family, one’s community) contain ‘redundancies of support’ – all of which work together to provide a scaffolding for the child. When one of the domains becomes suddenly unavailable (as might occur through a move from a community, for example), the other domains are then much more heavily relied upon. “Resilient children do not appear to possess mysterious or unique qualities; rather, they have retained or secured important resources representing basic protective systems in human development. In other words, it appears that competence develops in the midst of adversity when, despite the situation at hand, fundamental systems that generally foster competence in development are operating to protect the child or counteract the threats to development. These systems appear to have enough redundancy and power to sustain reasonably good development under adversity, unless crucial adaptational systems are severely hampered or damaged, or the adversity exceeds the capacity of anyone to cope.” [22]

“Studies of competence, resilience, and intervention converge to suggest that there are powerful adaptive systems that foster and protect the development of competence in both favorable and unfavorable environments. These systems are manifested in the quality of parent-child attachment relationships, cognition, and self-regulation. Children who do well have adults who care for them, brains that are developing normally, and, as they grow older, the ability to manage their own attention, emotions, and behavior. These adaptive systems also enhance each other in the course of development... Poverty, chronic stress, domestic violence, natural disasters, and other high-risk contexts [such as divorce] for child development may have lasting effects when they damage or impair these crucial adaptive systems; effective preventive interventions may work by bolstering or restoring these systems.

A large body of the divorce research has independently arrived at the same position. "In general, relationships with parents play a crucial role in shaping children’s social, emotional, personal, and cognitive development, and there is a substantial literature documenting the adverse effects of disrupted parent-child relationships on children’s development and adjustment. [24] The evidence further shows that children who are deprived of meaningful relationships with one of their parents are at greater risk psychosocially, even when they are able to maintain relationships with the other of their parents. Stated differently, there is substantial evidence that children are more likely to attain their psychological potential when they are able to develop and maintain meaningful relationships with both of their parents, whether the two parents live together or not.” [25]

The child development research, attachment research, resilience research, and divorce research all point in the same direction: toward the possibility and the desirability of multiple attachment figures in the lives of children, who each provide unique opportunities for relating, and who inoculate the child from adversity. Each adult is a source of resilience for a child, an ‘adaptive system redundancy,’ another anchor point, holding up the web in which the child rests. On the other end of the spectrum, children who do not have attachments with any adult, fail to develop. Some fail to thrive at all. [26] Development in children, it turns out, occurs only in the context of relationships. It could be said, without exaggeration, that development and attachment are so inextricably bound together that one does not occur without the other. The sobering fact of family law is that to be in the business of orchestrating parent-child relationships is to be directly influential on a particular child’s developmental path.

This is important, because there has been a way in which an unintended consequence of the older developmental theories tended to confine our thinking about what a family should look like in ways which had policy implications. Often these idealizations were steps taken beyond the intrapsychic focus of the original research and the limits of the data. Thus the idea of a primary caretaker has become a legal concept with the apparent weight of psychological research behind it, comforting decision-makers that deciding between two parents was sufficient, rather than entering the messy, uncomfortable, often unrewarding task of helping parents re-sort their roles and relationships with their children after divorce. [27]

C. Divorce Research Contributes to Our Understanding of Attachment in children

Paul Amato conducted a meta-analysis [28] of 92 studies that involved more than 13,000 children, and a second meta-analyis of 37 studies which pooled data from 80,000 adults who had experienced the divorce of their parents. [29] From this enormous pooling of data, he found that there were five factors which predicted a good or negative outcome for children. It is important to note that these factors are not rank ordered, but are presented as co-contributors to the health and well-being of children or to the lack of good adjustment of children following divorce. The research does not help us weigh one factor over and against another, but rather suggests that we attend to all factors.

1. Parental Absence after Divorce is Harmful to Children

2. Custodial Parental Adjustment and Parenting Skills Significantly Affect Children After Divorce

It is interesting to note that this is the factor that is discussed in an Amica submitted in RE Burgess. While it is an important factor to keep in mind, it co-exists with these other four. [32]

3. Interparental Conflict After Divorce is Harmful to Children

4. Economic Hardship After Divorce is Harmful to Children

5. Life Stress After Divorce is Harmful to Children

From this entirely different set of research questions and data, we find that the body of divorce research literature dovetails with the literature of attachment and the separate research literature of resiliency. The conclusions we may draw from these three bodies of work are:

D. The Extended Family and Community Contribute Substantially to the Stability of the Child’s World

As a mobile society, we tend to downplay the importance of extended family and community for both parents and children. Uzoka has suggested that this is a particularly new world phenomenon, a quality of a people derived from immigrants who had to leave a homeland, and who elevated self-sufficiency to a national virtue as a means of coping with the loss of support. [37] He goes on to suggest that in fact we rely on extended family and community more than we will admit, and that a good deal of exchange of resources and support exist, even in the midst of the denial of their importance. Margaret Mead tapped into this vein of American life. She is contrasting the idealized view of family as the nuclear unit, with the actuality of the need of kin for one another, and lamenting the lack of support of this kinship network in our social structures and institutions: [38]

It is not unusual for members of the extended family to be in a position to provide a particular kind of support which neither parent is able to provide, or to provide the kind of back-up to parents which gives them just enough relief to be able to be better parents. In some instances this support may elevate parenting from an inadequate to an adequate status. In the body of literature concerned with child abuse, Emery and Laumann-Billings suggest that a substantial number of families where abuse has occurred would be better served by supportive intervention: “most parents currently labeled as abusive are under a great deal of stress, as we discuss in detail shortly… Such families are more likely to benefit from interventions designed to support them through the challenges of parenting than from interventions that first label them abusive.” [40] They suggest that the number of stressful life events distinguished families who were reported with child abuse, and came from communities in which there was poverty, absence of family services, social isolation, and lack of social cohesion in the community. The programs which show the most promise are those which provide a home-visiting, home-based support, mimicking the kind of support that extended family members provide.

Outside of the idealized version of how families operate, children have communities, worlds of their own, which overlap with but which are distinct from the parents’ communities. In certain stages of development, the ability to navigate these worlds is the central task, and therefore the central source of risk. If the world is inadequate (such as an inadequate school), or the child is unable to make use of that world for internal reasons (such as being overburdened by having to take care of an inadequate parent), or if the central caregivers do not provide the necessary supporting links to that world, the developmental step (such as mastering the change from elementary to middle school)) of the child may falter. [41] These risks often are heightened at the points of development which we use as milestones to mark the change from one stage to the next (e.g., moving from preschool to kindergarten, the inauguration into the world of school which then becomes the primary domain in which children’s competence and success is measured for many years.)

The child’s community is also increasingly composed of friendships with peers.

E. Time Spent with a Child is not an Adequate Measure of the Primacy of the Relationship

Parents bring to courts disputes over schedules, conflicts about amounts of time spent with each, and conflicts about the type of time (such as overnights) spent with each. A very simple reason for this is that relationships are nurtured by the time spent in proximity. At the same time, assuming that the primacy of the attachment corresponds to the amount of time spent together would also be incorrect. Recall Bowlby discussing infants in intact families: “Thus one child may have a secure relationship with the mother but not with the father, a second may have it with the father but not with the mother, a third may have it with both parents, and a fourth may have it with neither.” [45] Clearly, there are other factors beside the amount of time which determine the centrality of a relationship for a child.

The confusion about the correlation between time spent together and the significance of the relationship is compounded by the words ‘custody’ and ‘visitation.’ Where is the bright line between a relationship defined as a ‘visiting’ relationship and a relationship defined as ‘custodial?’ What is the practical difference between ‘tinkering with the schedule’ and ‘changing custody? Over the years since the differentiation between “joint” and “sole” custody, parents have devised (and professionals have assisted them to devise) myriad schedules under both titles, whose underlying actual percentage distribution of time may not vary enormously. Some families designate a sole custodian in a timeshare arrangement that another family would call joint. What professionals have found, however, is that whether or not a particular timeshare arrangement appears to fit the named title, parents bring a tremendous emotional load to these words because they suggest legitimacy (or failure to legitimize) the importance of a relationship.

Researchers in the area of joint custody have had to struggle with this issue and the prevailing definition of a ‘joint custody schedule’ for the purposes of research is one in which the percentage difference in time between parents is 30% - 70% or less. [46] (Note that the historic every-other-weekend and a weekday night schedule is approximately 28% - 72%, a mere 2% difference.) Often, the difference between two identical schedules in two different families is the name they call it, and the name they call it will have meaning to them. Even though the children are seeing their respective parents on the same schedule, the parents and the children may understand that in one household, there is a central attachment of much greater significance to one parent, who everyone refers to as the ‘primary parent.’ In the other household, the parents operate jointly and cooperatively, and one parent has sacrificed his or her time with the children for the sake of the convenience of the children, because of the length of the commute, or some other child-centered reason, which is acknowledged and understood by everyone and does not reflect a lesser importance of the parent with less time.

Prior to Burgess, attorneys and mental health professionals were counseling parents to move toward a different nomenclature which would avoid the words ‘custody and visitation’ altogether, and to focus instead on how to create a situation in which the child was able to receive the best of what each parent had to offer.

No where is this problem more thorny than in the area of constructing a schedule for infants. J. Solomon is currently the only researcher to have studied children under the age of two in custodial arrangements. She underscores the difficulty of correlating the amount and type of time with the solidity of the relationship.

What one may infer from this is that relationships need some minimum threshold of time to develop and to be maintained. In addition to that, we may surmise they need other, equally important supporting structures which form the context of the relationship: a sufficient attunement of the parent with the child; supporting structures such as legitimization and validation from family, communities and the court; sufficient resource support for the parent from a variety of sources (extended family and community).

This contextualization of the relationship of attachment seems to be especially important for schedules with infants: “In accordance with attachment theory, the context of overnight visitation, not just the separations themselves, seemed to explain the unusual levels and type of insecure attachment in the [group of infants who had overnights with the non-custodial parent]. Neither the particular pattern of overnight visits nor the total amount of time away from mother predicted disorganized attachment. Insecure attachment in the overnight group was associated, however, with high parent conflict and low parent communication (and was unrelated to parents’ current psychological adaptation)… paralleling what is known about infant-father attachment in maritally intact families, neither overnight visits, nor the amount and patterning of the infant’s time with father, were related to security of attachment to father… Across all groups, including the maritally intact ones, low communication between the parents about the infant was associated with disorganized infant-father attachment, which at the most general level, suggests how important the father’s relationship with the mother is for establishing an adequate infant-father relationship.” [51]

Another way of saying this is that the context of the infant-parent relationship was a more powerful variable than the type or the amount of time the parent spent with the infant. This is a significant, perhaps even radical, departure from the way in which disputes are characterized in courts. The problem for attorneys and judges is, of course, that it is far easier to determine the percentage of time each parent has than it is to figure out what the context is in which the relationships are developing or attempting to develop. It is not impossible for courts to obtain this information, but there are practical barriers to trial courts obtaining a deeper understanding of the families who appear before them. [52] However, a shift of this nature, going deeper that merely the schedule as a basis of determination, is very much in the spirit of Beyond the Best Interests of the Child in its child-centered point of view.

In the real world, from the child’s point of view, there is no bright line between custodial and non-custodial. Parents themselves blur the lines or cling fiercely to an individually defined bright line. From a child’s point of view, there is a mother and a father; [53] there are relationships which are comforting, and relationships which support independence; there are caregivers who are reliable and caregivers who are rigid. To ask which is the better parent without reference to the quality of relationships (as we did before Beyond the Best Interest of the Child), or to ask which parent is the primary parent (as we tend to do now) is very much like asking a child which leg he would rather have cut off, his right or his left. While the two legs may not be equal, and the child may prefer one to kick a ball with one of his legs, he needs both to walk. In fact, when asked whether he would like to go back and forth between two households, invariably a child will say he does not want to. When asked which parent he should give up, a child will say he would rather go back and forth between two homes. [54]

F. Summary: Continuity and Stability From a Child’s Perspective

Historically, the continuity and stability has been understood to be equated with placing the child with the ‘primary caretaker.’ We have seen, however, that our understanding of the concept of primary caretaker has changed, and so has our understanding of what it means to take a child-centered viewpoint. Now we attempt to include at least a partial understanding of the role of the network of relationships of the child, and the importance of the child’s extended world in the form of extended family and community. In addition, we have also begun to understand the interactive nature of these domains of support for children. For example, it is not just the quality of relationship between the father and infant, but the nature of the father’s relationship to the mother. It is not just the quality of the relationship of the child to each parent, but also their ability to support the child’s relationship to his or her peer group, etc.

The implications for this in working with divorcing families is the need to understand the nature of the multiple risks to children and the multiple sources of support:

With an understanding of the complexity of supporting continuity and stability for children, we may now turn to understanding the nature of change in a child’s world.

IV.

JUDICIAL ANALYSIS OF CHANGE OF CIRCUMSTANCES MUST INCLUDE FACTORS BOTH INTERNAL AND EXTERNAL TO THE CHILD

Paradoxically, while we are focusing on the need for continuity and stability in the world of the child, the child’s focus is by nature, on change. Child development is the story of how children change, driven by inborn forces which are met by support from the surrounding environment. Introduced by Freud, the radical shift in our understanding is that children are not miniature adults, but are qualitatively different. School-ready children are not just bigger versions of infants, but creatures with qualitatively different minds and bodies, both of which allow them qualitatively different coping abilities. Each stage of childhood brings with it a different set of tasks, and a different set of hoped-for achievements, and as a result different set of risks.

As children change, they force their parents to change, to become proficient at a different set of skills congruent with the child’s developing needs. There is a call-and-response between children and parents, as children ‘call-up’ responses from their parents, and parents respond. (This is self-evident to anyone who has in his or her household a ten year old and a 14 year old at the same time.) It is also self-evident to most parents that any one person is not equally proficient at being a parent to children of every age and all stages; the tremendous benefit of having more that one central caregiver is the greatly increased likelihood that at least one of the caregivers will be sufficiently proficient to meet whatever the current demands of child-rearing are.

The challenge of formulating a structure for the analysis of a change of circumstances is that it occurs within the context that Courts require a clear enough standard which accomplishes a sophisticated and complex task: protecting children from repeated disruptions of the stability and continuity of their world – in all the complexity that world entails, as we saw above – while at the same time permitting an arrangement to be changed when children have outgrown it, just as they outgrow clothing, or graduate to new schools. This amica suggests that the analysis of a change of circumstances, to be consonant with our best understanding of children and families, should include an understanding that the origin of change in a child’s world may arise from two sources: from the child’s world and from within the child herself. An assessment of whether there has been a change of circumstances would then look in two directions: has there been a significant change in the developmental needs of the child ( i.e. factors internal to the child); and, has there has been a significant change in the immediate world of the child (i.e. factors external to the child) from the child’s point of view.

A. Factors Internal to the Child: Changes in Needs and in the Capacity to Cope

Most experts who work with children following divorce offer parents advice about schedules based on the age of the children. [58] For the most part this advice is sought and offered at the time of the separation or divorce with the understanding, at least on the part of the mental health professionals, that whatever arrangements are made will need to changed as the children grow and develop. Professionals base their assessment of each situation on an understanding of the changing internal landscape of the child – changes in what they need, and changes in their capacity to cope with what will be expected of them without being overwhelmed. Children need challenges which ask them to stretch their capacities and growth is enhanced when parents and others provide this to them. However, challenges which are too great, which create likelihood for children to fail and to be overwhelmed, interfere with development and siphons energy away from developmental tasks. Physical exercise is an appropriate analogy: exercise which challenges muscles in the correct amount enhances strength; exercise beyond the limits of the muscles produces injury.

Counsel is given to parents of infants and toddlers to create schedules in which the time away from any central caregiver is relatively short (hours or a day). Children at this age lack the capacity to understand time (and therefore be comforted by a reassurance that they will see the other caregiver soon) and their lack of ability to understand language (which limits the nature of the comfort that can be offered). The ability to cope in children is related to ability to be comforted and to provide self-comfort. In very young children, predictability of the comings and goings of parents is a concrete method of providing reassurance in the absence of being able to be reassured through language. (While there remain significant controversies about whether overnights are harmful to infants and toddlers, there are not significant controversies about the benefit of multiple central relationships.)

On the other hand, a child who is ready for school is a child who has the capacity to understand the days of the week, who has a mastery of language, whose developmental tasks have shifted from learning how to become attached to honing social skills with peers. The arrangement made for an infant or toddler, with it’s frequent transitions and shorter periods of time in each home, becomes burdensome to this child.

Subsequent developmental changes, in the form of cognitive changes which radically change the child’s ability to conceptualize, participate in abstract thinking, also effect the custodial arrangement. Children in the 8 to 11 year old range are engaged in a cognitively-driven new understanding of rule-bound behavior: they are their parents’ judges and juries and become very concerned with fairness and justice. They are most apt to demand exactly equal schedules.

Adolescence brings with it a renewed re-focus outside the home; parents now compete for time (and sometimes for influence) with the peers of their children. Adolescents tend to be more concerned with the ease with which their friends can locate them than with the details of the schedule. They need close monitoring but of a style and type drastically different from that required in earlier years. They also need to know that their parents can take care of themselves, and that they need not be concerned with having to take care of their parents at the expense of their own developmental agenda, most specifically, preparation for leaving home.

There is substantial agreement in the mental health community that independent of any other factor, the developmental shifts within children, by themselves, argue for a re-examination of the custodial arrangements:

Children may also directly herald a change themselves by gravitating toward a central caregiver that they have not been as close to in younger years. For example, it is not unusual for children to shift alliances between parents as they enter adolescence, and parents who are able to be responsive to this shift can make adjustments which permit greater contact with that parent without permitting a rejection of the other. Parents who have been in conflict, whose self-esteem as parents has been compromised by a prior history of custodial conflict, are more apt to need the help of professionals or the Court to accomplish this kind of realignment.

There are other changes that arise internal to the child which may or may not be developmentally related, but which may be important to consider. Included in this category would be a diagnosis of an illness in the child, or a diagnosis of a condition in the child (such as a disability which requires specific intervention), or a significant change in emotional status of a child (such as a suicide attempt, emotional instability, etc.).

There are many factors which would mitigate whether it would be appropriate to actually make the requested changes, and which would become part of the analysis of what was in the best interest of the child, once a determination was made that the situation was worthy of the court’s attention. Such factors include (but are not limited to) the presence of siblings on the same schedule. When there are several children in a home, it is often desirable to develop a schedule which is good enough for all of them together, rather than ideal arrangement from a developmental point of view for each child separately. We know that the support from the sibling cohort mitigates the difficulties of individual children in the family.

For our purposes, there is a need to put a simpler structure on this complexity. Child development experts tend to group development into stages (although in real life there is a continuum of change). These rather grossly defined stages may be useful for creating a practical structure for analyzing whether there has been a change of circumstance as the result of factors internal to the child. There are several ways this might be accomplished.

B. Factors External to the child, as Seen from the child’s Point of View

We have already seen that growth in children is the match between the child’s inner resources and the support offered from the child’s world. What is meant here by the ‘child’s world’ is that series of concentric circles around the child: the central caregivers; the network of kin and specific adults who offer relationship and support; friends and peers; school, including relationships with teachers and the academic fit to the child; extra-curricular activities and the relationships with friends and prosocial adults that comprises, including sports activities, music activities, social groups such as Girl Scouts, church activities. By the time a child is ready for school, he or she has experience in many of these areas of activities and types of relationships. The world of the child is the world of familiarity – recognition of places, the comfort of deepening relationships, and a sense of being accompanied by allies when confronting the ‘new’ and the unknown.

In some ways, attempting to assess the change of circumstances in terms of the wider world is more difficult than those internal to the child. The march of development, all things being equal, moves similarly in all children. Events in the child’s world, however, have impact in direct proportion to their meaning to the child, the manner in which the event is managed by the caregivers, and the magnitude of the event, all of which may vary widely from instance to instance. A child’s world has already become extraordinarily idiosyncratic and unique within the first four or five years of life, and sorting out the variable contribution of different aspects of a particular child’s world is a long-term project. In one child’s world, the relationship with a teacher or coach may provide a very important resource; in another, the birth of a half-sibling may be all important, while the child next door would rather see her step-brother drop off the face of the earth.

We have seen that children are supported from multiple sources and face multiple risks, including some that arise from inside of themselves. “Given the high likelihood of multiple risks occurring in a child’s life, prevention and intervention programs will probably be more effective if they target multiple risks for elimination or amelioration and boost multiple assets and protective factors.” [61] In other words, we must protect children from risks (such as the adversity of loss) and also boost their resources (such as remaining mindful of the things that are in place and require protection.)

In terms of analyzing change of circumstances, we would begin with the question, Has a change occurred? If so, does the change rise to the level of a change of circumstances? It’s happened, (whatever it is), and now what do we do to address the risk.

The court is in a quandary: how to assess whether a threshold has been reached which would permit the court to entertain a request for a change in custody, without looking more deeply into the situation in advance of entertaining the request.

What we may surmise, however, about factors external to the child is that the meaning of the factors to the child will change as the child develops. For example, a behavior of a parent or a parental characteristic may have a different impact on the child depending on the child’s age. The fact of one parent’s lack of support of the child’s relationship with the other parent may not change over time, but the meaning to the child and the impact on the child may. A failure of a parent to facilitate access of a toddler to the other parent may be more easily mitigated by frequent good experiences with the other parent. A failure of a parent to facilitate access of a school-aged child may result in an alienated child, when accompanied by direct and indirect commentary by the parent, which is absorbed by the child and influences her feelings about the other parent. [62] Similarly, a “somewhat overprotective mother will have less negative impact early on in a child’s life. But if it continues and impedes separation and autonomy later, those same characteristics become more problematic to the child.” [63]

Context may change the impact of the factor. For example, “a parent with limited ability to focus on multiple tasks does fine with one child who is young, but then remarries a person with three children and then can no longer provide the attention to the original child.” [64]

Given our current understanding, a court might query whether an event or proposed event would reasonably significantly challenge a child’s ability to cope (because of the magnitude of the event, or because of its importance or special meaning, or because of the ability of the child’s family to manage the change. This strategy follows the resiliency research: capacity to thrive is based on both the capacity within the child to cope, and the ability of crucial adaptational systems to sustain development. This is a two-pronged approach.

An alternate strategy might be to enumerate the circumstances that might be grave enough to meet the test of the threshold, we might pose the question a little differently. What are the necessary conditions for a court to entertain a request for a change in custody? For example, the court might find that three conditions exist:

It is not presumed here that a definitive strategy has been offered for solving the difficult balancing required between children’s need for continuity and their need for a changing, supportive structure around them. Rather, several strategies have been offered. All of them have one thing in common. There is no single factor which becomes a proxy for the decision, either when determining a change of circumstances or in determining best interests. In either situation, it is appropriate, from a child development point of view, to weigh the multitude of factors.

Children need both roots and wings. They need the reassurance that is provided by sameness, the reassurance we all derive from familiarity and things traditional. And they need the capacity to stretch and become bigger than they were, with the stimulation of expanded horizons.

THE PERVASIVE CONSEQUENCES OF THIS COURT’S DECISION IN THIS MATTER

An aspect of this question is of great interest to the vast majority of families who do not reach the attention of trial courts, much less the Appellate, or the Supreme Court. The unintended shadow of a decision of this nature is vast. All of these families are ‘bargaining in the shadow’ of this and other decisions, and its effect is to change the nature of the advice given to people by their lawyers, the limits placed on the positions they may reasonably take in mediation, and the positions they feel required to take in a court of law.

Most parents do not dispute arrangements for children following separation and divorce. Of those who do have child disputes, most settle ‘in the shadow of the law.’ It is estimated that fewer that 10% of the cases which are referred to court services for mediation result in a referral for evaluation, and fewer than 1% of those cases result in a trial on the issue of custody. As a practical fact, the cases which go to court at all are less than half the population of divorcing families, and those that result in a appellate review are miniscule by percentage, and by definition, not reflective of the vast majority of families. [65]

Thoughtful commentaries on family law have noted the future orientation of a court’s decision – the degree to which decisions are ordering future relationships in families. [66] Ordinarily, decisions are based on past conduct. In family law, relying only on past conduct runs counter to the principle of best interests because best interest has a future orientation embedded within it: for what other reason are we concerned about best interest if not about the care of a child now and into the future?

In addition, past conduct does not always predict future conduct. For example, there appears to be no correlation between pre-divorce fathering and post-divorce fathering. Father’s who were active in their children’s lives during the marriage sometimes opt, for a variety of complex reasons, not to be active after the divorce. Fathers who had participated in a family in which the mothers’ job was to raise the children sometimes find in divorce the opportunity they did not have during the marriage to redefine their roles in connection to the children. [67]

Usually, parents’ decisions to divorce are attempts to rectify problems, to make things different, to make things better. There is an irony when this forward-looking stance is met with an insistence on replicating the past. This means that custodial arrangements become rewards for past behavior rather than based on the on-going development of both children and parents. Development does not end when a child reaches minority: it is a life-long project. Such a stance does not take into consideration the legitimate attempts on the part of the adults in families to use the divorce to create an opportunity to change.

This Court’s decision will have a potentially chilling effect on parents’ ability to negotiate. If the developmental changes of the child are not part of the change of circumstances analysis, then the logical extension of this is that all custodial arrangements for children will be determined by the age the child is at the time of the divorce or separation. This will have the effect of forcing parents who are bargaining in this shadow to fight, at the time of divorce, for custodial arrangements which are not suitable for a child at its current age, but for some arrangement that will guarantee the arrangement they eventually want. For example, it would not be intelligent for a parent who wishes to be a joint custodian to agree to no overnights on the basis of the child’s tender age, knowing that when the child is five, this issue will not be able to be reconsidered. Those who have made such negotiations in the past in good faith will find themselves caught in a ‘catch 22’ in which having given up time then means not having time now.

“What is lacking is a mechanism for the differential use of policies and procedures and for their modification over time. The court and the legal system as traditionally structured lack the necessary flexibility to deal with families. It has been apparent for some time that there is a serious mismatch between the adversarial court system and the needs of divorcing families which has contributed heavily to the difficulties encountered by children and parents. It would be interesting to speculate how much of the difficulty that is currently attributed to the impact of divorce would be reversible given a legal system that was more sensitive to divorcing families.” [68]

In other areas of family law, when there are underlying factors that determine the outcome, the court has permitted review when these factors change. Examples include child support determinations and temporary restraining orders. In regard to custody, ‘change of circumstances is seen as a sub-component of ‘best interest,’ honoring the needs of the child. In contrast to the original intent, it has become a straight-jacket that does not allow a court to respond to the changing needs of the child. We must find a means of combining both the fact of getting older with some indicia that the current schedule is not working, in order to sidestep the inevitable dilemma in advance. The nexus of the argument must remain the best interest of the child.

VI.

CONCLUSION

In evaluating a request for modification of an existing shared residential parenting arrangement, a court should determine what residential parenting arrangement is in the child’s best interest, taking into consideration both the internal and external factors that reflect the child’s developmental needs. No change of circumstances should be required.

Therefore, the court should reverse the Court of Appeals, affirm the trial court and remand for further proceedings.

Sandra E. Purnell, J.D., Ph.D.
Attorney at Law
California State Bar no. 121973
Attorney for Amici Curiae

Mary A. Duryee, Ph.D., Founding Director, Alameda County Family Court Services; Family Law Faculty, California Center for Judicial Education and Research

Sandra E. Purnell, J.D., Ph.D., Certified Family Law Specialist; Communication Faculty, Eastern Oregon University; Member, Oregon Judicial Department Parenting Plan Work Group

Janet L. Johnston, Ph.D., Executive Director, Judith Wallerstein Center for the Family in Transition; Associate Professor, Administration of Justice, San Jose State University; Co-author, Impasses of Divorce: Dynamics and Resolution of Family Conflict and In the Name of the Child: A Developmental Approach to Understanding and Helping children of Conflicted and Violent Divorce, NY: Free Press.

Joan B. Kelly, Ph.D., Psychologist, researcher, and author of more than 65 articles and chapters on children and divorce, custody, child development, and divorce mediation; Co-author of Surviving the Breakup: How Children and Parents Cope with Divorce.

Lawrence K. Lehner, Ph.D., Chief, Family and Children’s Services Bureau, Administratively Consolidated Trial Courts of Alameda County; formerly Coordinator of Training, Administrative Office of the Courts, State of California.

[1] Kelly, J.B., Lamb, M.E., (2000) Using child development research to make appropriate custody and access decisions for young children. Family and Conciliation Courts Review, Vol, 38, NO. 3.

p. 309

[2] Goldstein,S., Freud, A, . Solnit, A.J. (1973) Beyond the Best Interests of the Child, New York:Free Press, 1973.

[3] This may be because within psychoanalytic schools of thought, there are bridges between research and practical clinical application; often the same individuals are engaged in both endeavors. In other domains of psychology, particularly developmental psychology, the connections between research and practical application have not so easily been made.

[4] Mahler, M.S., Pine, F., and Bergman, A. (1975) the psychological birth of the human infant, New York:Basic Books.

[5] 'Internal objects’ refers to the way in which an individual holds the image of the other in mind, and also, the image of the self.

[7] Bowlby, J., (1988) A Secure Base: parent-child attachment and healthy human development. New York:Basic Books.

[8] Kelly, J.B., Lamb, M.E., (2000) Using child development research to make appropriate custody and access decisions for young children. Family and Conciliation Courts Review, Vol, 38, NO. 3.

[9] Ainsworth, M.D.S. (1982) Attachment: retrospect and prospect’ in C.M. Parkes and J. Stevenson-Hinde (eds) The place of attachment in human behavior, 3-30, New York:Basic Books.

[10] Lamb, M.E., (ed) (1970) The role of the father in child development. New York:John Wiley. This book is now in its third edition.

[11] His work is based on research techniques which technology has advanced since Mahler’s work (including the ability to monitor finely tuned physio-biological changes in infants, video-taped interactions with parents) and by bringing together findings from several lines of research in biology, neuropsychology and developmental psychology.

[12] Stern, D. (1985) The Interpersonal World of the Infant: a view from psychoanalysis and developmental psychology. Basic Books. p 240 – 241

[13] Stern, D. (1995) The Motherhood Constellation: a unified view of parent-infant psychotherapy. Basic Books. Stern, D. (1985) The Interpersonal World of the Infant: a view from psychoanalysis and developmental psychology. Basic Books.

[14] Lamb, M. (1994, November 3) Brief for the Texas Supreme Court Committee on Child Visitation, Austin.

[15] Warshak, R.A. (2000) Blanket restrictions: overnight contact between parents and young children. Family and Conciliation Courts Review, 38(4).

[16] Zimmerman, L. & L. McDonald (1995) Emotional availability in infants’ relationships with multiple caregivers. American Journal of Orthopsychiatry, 65(1), 147-152.

[18] Main, M., and Weston, D. (1981) “Quality of attachment to mother and to father: related to conflict behavior and the readiness for establishing new relationships.’ Child Development, 52: 932-40.

[20] Adversity is defined as those things which have been demonstrated to be high risk circumstances for children. Included in this list are: divorce, births to single parents, teenage pregnancy, child abuse, homelessness and poverty, substance abuse and violence. Masten, A.S., Coatsworth, J.D. (1998) The development of competence in favorable and unfavorable environments: lessons from research on successful children. American Psychologist. 53(2): 205-220.

17 Masten and Coatsworth, p.212, emphasis added.

[23] Masten & Coatsworth, 1998, p 215, emphasis added.

[24] Lamb, M.E. (1999) Non-custodial fathers and their impact on the children of divorce. In R.A. Thompson & P. Amato (Eds), The post-divorce family: Research and policy issues (pp.105-125. Thousand Oaks, CA:Sage; Lamb, Hwang, Ketterlinus, & Fracasso, (1999) Parent-child relationships. In M.H. Bornstein & M.E. Lamb (Eds.) Developmental psychology: An advanced textbook (4^th ed., pp 411-450) Mahwah, NJ:Lawrence Erlbaum.

[26] The impetus for Bowlby’s original work with children orphaned after World War II was the inexplicable phenomenon of the failure to thrive of those children in orphanages whose physical needs were met but whose emotional needs for connection to adults were not.

[27] Another unintended consequence is that those who do not fit the married paradigm are often excluded from the discussion completely: unmarried parents, non-biologically-related psychological parents, parental grandparents, same-sexed parents.

[28] A meta-analysis is a statistical pooling of data from a number of studies by expressing the results of individual studies in a common unit of measurement. The result is a summary of effects of divorce which though very generalized, is also very reliable statistically.

[29] Amato, Paul R. (1994) Life-span adjustment of children to their parents’ divorce. The Future of Children: Children and Divorce, Vol. 4, No. 1, The David and Lucille Packard Foundation, 300 2nd Street, Suite 102, Los Angeles, CA., 94022. This is, essentially, a review of the research in the field of divorce of the last 20 years, with added statistical strength.

[32] Amica Curiae Brief of Dr. Judith Wallerstein, Ph.D. In this amica, Dr. Wallerstein cites three factors which predict “good outcomes for children post-divorce: 1) a close, sensitive relationship with a psychologically intact, conscientious custodial parent; 2) the diminution of conflict and reasonable cooperation between the parents; and 3) whether or not the child comes to the divorce with pre-existing psychological difficulties.” While the two lists have significant overlap, the differences may be attributable to the source materials. Dr. Wallerstein refers to a paper by M. Kline, J. Tschann, J. Johnston, and J. Wallerstein, “Children’s Adjustment in Joint and Sole Custody Families, 1989, 25, Developmental Psychology.

[33] Cherlin, A.J., Furstenberg. Jr., F.F., Chase-Lansdale, P.L. et.al. Longitudinal studies of effects of divorce on children in Great Britain and the United States. Science (1991) 252:1386-89.

[37] Uzoka, ( ) The myth of the nuclear family. American Psychologist

[38] Note the similarity with Bowlby’s comment, ‘from whom that help comes will vary: very often it is the other parent; in many societies, including more often than is realized, it comes from a grandmother.” (See page 2, Bowlby.

[39] Mead, M. (1979) Anomalies in American Post-divorce relationships. In P. Bohannan, (Ed.) Divorce and After: an analysis of the emotional and social problems of divorce. New York:Doubleday Anchor.

[40] Emery, R.E. and Laumann-Billings, L. (1998) An overview of the nature, causes and consequences of abusive family relationships: toward differentiating maltreatment and violence. American Psychologist, 53(2), 121-135.

[41] Or, if for example, the parents’ conflict hinders their ability to provide the links to those worlds – conflicts over which school, which extra-curricular activity, fall into this category.

[42] Brown, B.B., & Huang, G.H. (1995) Examining parenting practices in different peer contexts: implications for adolescent trajectories. In L.F. Crockett & A.C. Crouter (Eds.), Pathways through adolescence: Relation to social contexts (pp. 151-174). Mahwah , NJ: Erlbaum.

[46] In one study, 30% of the respondents in the joint custody category had time share arrangements of 75% - 25%: Irving, H., Benjamin, J., Trocme, N. (1984) Shared Parenting: An empirical Analysis Utilizing a Large Canadian Data Base. In J. Folberg (ed.), joint custody and shared Parenting, Washington D.C., Bureau of National Affairs, 128-135. In another study, the timeshare arrangements ranged from 67% - 33%: Abarbanel, A. (1979) Shared Parenting After Separation and Divorce: A Study of Joint Custody. Amer. J. Orthopsychiatry. 49(2), April.

[47] Bowlby, J. (1982) Attachment and Loss: Volume I, Attachment. New York: Basic Books; Chisolm, K. (1998) A three year follow-up of attachment and indiscriminate friendliness in children adopted from Romanian orphanages. Child Development, 69, 1092-1106; Talbot, M. (1998) Attachment theory: The ultimate experiment. The New York Times Magazine, May 24, 1998.

[48] Jacobsen,T., & Miller, L.J. (1999) the caregiving contexts of young children who have been removed from the care of a mentally ill mother: Relations to mother-child attachment quality. In J. Solomon & C. George (Eds.) Attachment disorganization. (pp. 347-378).

[49] Ainsworth, M.D.S. (1967) Infancy in Uganda: Infant care and the growth of love. Baltimore:Johns Hopkins University Press.

[50] Solomon, J. (in press) An attachment theory framework for planning infant and toddler visitation in never-married, separated, and divorced families. In. L. Gunsburg & P. Hymowitz (Eds.), Divorce and custody: contemporary developmental psychoanalytic perspectives. Washington, D.C.:APA Publications. Empasis added.

[52] Duryee, M.A. & J. Garbolino (1996) Family law: is the system broken? Family Law News, State Bar of California Family Law Section, 19(1). The author has been involved in analyzing the statistics and workload of five different county Family Court Services within the last five years and each has been significantly understaffed. There are several common factors impinging on courts: changes in the law have increased workload; there has been a dramatic increase in the number of self-represented parties; most services have not seen increases in staffing since the early 1980’s.

[53] Or, a mother and a grandmother; or a father and a father, and a grandmother, etc.

[54] Wallerstein, J.S. & J.B. Kelly (1980) Surviving the Break-up: How children and parents cope with divorce. Basic Books:New York. Commentary of Joan B. Kelly, in Dad’s House, Mom’s House, The Film Board of Canada.

[56] Judith S. Wallerstein, Ph.D. (1997) Children of Divorce: A Society in Search of Policy. In , Mary Ann Mason, J.D. and Steven Sugarman, J.D., eds., The Evolving Family. Oxford University Press.

[58] The author has reviewed the orientation materials of a number of Family Court Services departments around the state which offer this sort of advice, which itself is a culling of a vast literature. Many books and articles are available on the subject, such as: Hodges, W. (1991) Interventions for Children of Divorce: Custody, Access, and Psychotherapy. New York:John Wiley; Kalter, N. (1990) Growing up with Divorce. New York:Fawcett Columbine; Ricci, I. (1998) Mom’s House, Dad’s House: A Complete Guide for Parents Who Are Separated, Divorced or Remarried. New York:Simon & Schuster (2^nd Edition).

[59] Kelly and Lamb, p.309, emphasis added.

60] An argument could be may for dividing adolescence into ‘early’ and ‘late’ with the transition point being age 16, or the point at which the adolescent achieves a new mobility. However, many of the disputes which arise between parents about adolescents after 16 are self-resolving, in that the new player, the adolescent himself or herself resolves the issue. In addition, there is a need to limit the opportunities for unnecessary litigation.

[62] This is not intended as a definitive description of alienation from a parent, which may also include many other aspects. It is only offered as an example of the differential impact of the same behavior on children of different ages. A complex analysis of parental alienation is offered in the recent research work of Janet Johnston.

[63] Margaret Lee, Ph.D., Marin County, personal communication. 2001.

[64] Margaret Lee, Ph.D., Marin County, personal communication. 2001.

[65] Duryee, M. (1991) Demographics and Outcome Data of A Court Mediation Program. Statewide Office of Family Court Services, Judicial Council, State of California, 455 Golden Gate Avenue, San Francisco, CA.. The statistics in Alameda County were quite similar to those from other counties around the state.

[66] Mnookin, R.H. and Kornhauser, L. Bargaining in the Shadow of the Law: The Case of divorce. (1979) 88 Yale L. Rev.950.

[67] Lamb, M.E. (1981) Fathers and Child Development: An Integrative Overview. In M.E. Lamb (ed.) The Role of the Father in child Development. New York:John Wiley & Sons.

I.

INTRODUCTION

II.

APPLICATION OF THE CHANGE OF CIRCUMSTANCES RULE IS NOT MANDATED IN THIS CASE

III.

THE MEANING OF STABILITY AND CONTINUITY IN A CHILD’S LIFE

A. Children Form Multiple Attachments

B. Children Suffer from Having Only a Single Caretaker

C. Divorce Research Contributes to Our Understanding of Attachment in children

1. Parental Absence after Divorce is Harmful to Children

2. Custodial Parental Adjustment and Parenting Skills Significantly Affect Children After Divorce

3. Interparental Conflict After Divorce is Harmful to Children

4. Economic Hardship After Divorce is Harmful to Children

5. Life Stress After Divorce is Harmful to Children