Of the millions of divorces that occur in the United States, a substantial number involve children. Parents who divorce usually do not just go their separate ways as if the marriage can be forgotten; once you've had a child with someone, you have a never-ending relationship, whether you like it or not. Divorcing parents find themselves juggling with that relationship, with the relationship between the children and the former spouse, and with plans for moving on with their lives. The relationship and the plans are up to the individuals, but family courts may be involved with decisions about the children.
In spite of their mutual disappointment or antagonism, about 90% of divorcing parents are able to agree about plans for custody of children and for access (visiting, holidays, etc.). They may be assigned joint custody and left to work out the practical arrangements for themselves. Of the other 10%, many can still come to terms with the help of mediation and don't require judicial orders. For the rest, the hard core dysfunctional relationships, family court judges may have to make difficult decisions. How do they do this?
A first step usually involves a child custody evaluation (CCE) by a psychologist. Although in the past it was the usual practice for the parents to employ separate experts, who would then "fight it out" in court, it is now much more common for one evaluator to examine both parents and the children and make a recommendation about care of the children. This seems like a good idea-- unless by some chance the evaluator has a connection with one or the other parent, or a bias of some kind, and although it is uncommon, such a situation can occur. The evaluator is expected to follow guidelines established by the American Psychological Association and to use science-based measures in the examinations and report (see. www.apa.org/childcustody.html ). However, several authors in the last few years have emphasized the limitations of the science we have available for this task.
The major principle on which the court's decisions are made is called "the best interests of the child". This term comes from a highly influential series of books, which began with the publication in 1973 of "Beyond the Best Interests of the Child", by Goldstein, Freud, and Solnit (this was Anna Freud, by the way, who was a major force in considerations of children's needs). The concept of the best interests of the child stresses the idea that decisions should be made in ways that are least detrimental to children's development, rather than following the older principles of parent's property rights in children. But, although Goldstein, Freud, and Solnit discussed many aspects of children's best interests, the concept remains somewhat vague, and potentially different for different children and families.
How to act to achieve the best interests goal remains uncertain. Several processes are currently being discussed. One of these, the approximation method, involves decisions about time with children that are based on previous care arrangements. Thus, if one parent has had 75% of the time responsibility for child care--- bathing, feeding, taking to child care, school, or music lessons--- that parent will have physical custody of the child 75% of the time. While some authors have argued that this method is connected with the child's attachment to a particular parent, this is doubtful, as contact time itself does not necessarily determine a secure or an insecure attachment. Although the approximation method is fairly easy to use, it may be problematic because of the differences between mothers' and fathers' involvement with children of different ages. For example, a breast-feeding mother of an infant may do 90% of the child care, but in the absence of divorce she might do only 50 % by the time the child is 6 years old.
A method that has recently been introduced (in an article in "Journal of Child Custody" by Isaacs, Marvin, & George) involves the use of well-researched attachment measures, notably the Strange Situation Paradigm (SSP). This measure is a standardized test developed decades ago by Mary Salter Ainsworth, a major attachment theorist and researcher. In at least one case, the SSP has been used as part of a child custody evaluation. There are several problems about this, however. One is that the SSP and related tests are meant for use with infants, toddlers, and preschoolers and would be useless with older children and teenagers. Another important issue is that measures of attachment do not really help decide how post-divorce parental care should be structured. If a child had absolutely no attachment to one parent, it would seem unreasonable to give that parent primary custody (unless other factors were present). But if a child is insecurely attached to one parent, does this mean the child should not spend time with that person? Or does it mean that more time and interaction are needed so a more secure attachment can be developed?
Whatever method of decision about custody is used, an essential point is the need for developmentally appropriate practice. As children of different ages have different needs, courts need to concentrate on the factors and the methods of decision-making most appropriate for each child.