Family lawyers are generally well equipped to assist their clients in negotiating future parenting agreements for children. If a parenting matter is relatively straight-forward and conflict is limited, a satisfactory agreement can be easily reached between parents, with the assistance of their respective skilled family law legal representatives whom are guided by precedent cases, the principles that apply under the Family Law Act 1975 and an expert understanding of what the Court’s view is on less-complex parenting matters.
However, occasionally a parenting matter will arise that is not straight forward. There may be more complex issues at play including high-level conflict, assertions of risk, allegations of abuse or specific circumstances that may impact the parents’ ability to come to an amicable resolution.
One such specific circumstance includes children whom are of tender age (less than three (3) years of age). Parents of such children are frequently unable to agree upon what is an appropriate spend time arrangement for their young child, taking into consideration his/her developmental needs.
Although it may seem like an attempt to assert control or inflict pain by one parent upon the other, parenting arrangements for children of tender years ought to be determined only following the giving of proper advice, consideration and care, the basis of which is outlined below.
It is widely accepted in family law, that children of tender age will have a secured primary attachment to one of their caregivers, ordinarily the parent whom has provided primary care to the child. Further, that a secondary attachment is formed with the secondary caregiver (ordinarily the other parent), secured at the time the child is able to develop multiple attachments at around nine (9) to ten (10) months of age. Although children will recognise a familiar and regular secondary caregiver prior to this time.
Child experts describe attachment in early childhood as the emotional bond a child has with a caregiver. Research indicates that early childhood attachments have an enormous impact on a child’s behaviour and interpersonal relationships throughout his/her life. It is believed that a person that has enjoyed secure attachments in childhood tends to have a higher level of self-esteem and self-disclosure and the ability to form and maintain happy and healthy interpersonal relationships with others (including partners).
Child experts suggest that separation of a child from its primary attachment can not only cause significant anxiety for the child, but potentially disrupt the attachment. Often children diagnosed with behavioural and stress related disorders have failed to properly secure primary attachments, or have had secure primary attachments disrupted, in early childhood.
As a result, the Courts are often overly cautious when determining parenting matters so as to ensure that the best interests of the child protected by maintaining existing attachments.
That said however, it is often the case that the primary caregiver can be a little over zealous when proposing spend time regimes for the secondary caregiver, by heavily curtailing time until the child reaches school age. This can have a detrimental effect on the child and the securing of a secondary attachment.
It is important for the primary caregiver to remember that whilst the best interests of a child remain the paramount consideration in determining parenting matters, the benefit of a child’s right to a meaningful relationship with both of its parents remains a primary consideration and as such the amount of time proposed should be with this in mind.
Although shared care or significant blocks of time may not be appropriate for a child of tender years, it is commonly accepted that a graduating (increasing) regime of time with the secondary caregiver is likely to be in the best interests of such a child as well as likely to encourage and maintain that child’s relationship and attachment with their secondary caregiver.
In theory, an example of a graduating regime for a child of tender years, may see the child spending time with the secondary caregiver initially for a number of short day visits each week, before graduating to full day visits and later short overnight visits. Eventually as the child develops, the length of the overnight visits will increase to significant and substantial time and/or shared care. Quite often in graduating regimes, an interval of time may need to be extended or regressed if the child is not ready to graduate, or not coping with a recent increase in time. Subsequently, an effective co-parenting relationship ought to be maintained between the parents.
Ordinarily, in parenting cases that are before the Court, judges and legal practitioners will look towards Court appointed child experts, called family consultants, to provide:-
- Recommendations regarding an appropriate graduating regime, including but not limited to, the amount of time that should be facilitated at each interval and the rate at which said time should graduate.
- Guidance as to the effect of a graduating regime on a child and his/her developmental needs (including attachments).
However, if a parenting matter is not yet before the Court, parents will look towards their legal practitioners for guidance on same. Although practitioners can provide legal guidance by looking at the principles that apply under the Family Law Act 1975 and recent decisions that contain similar circumstances to a client’s case, they are not child experts and are unable to provide advice as to the appropriateness of a proposed regime, or the effect of said regime on the child and his/her developmental needs (including attachment theory).
Subsequently, it is recommended that during the early negotiation stage of a parenting matter, parents’ seek the assistance of a skilled private family consultant (referred by a legal practitioner) to assist them in coming to an appropriate parenting arrangement that takes into consideration their child’s developmental needs.
Thereafter, any agreements reached between the parents’ should be formalised by the parents’ respective legal representatives into consent orders to provide certainty for the parents and the child. It is advisable to include a review date in any consent orders for children of tender years, as parenting arrangements that are entered into at this stage of a child’s development are often not appropriate for older school aged children.
If you are seeking assistance in respect of your family law matter, in particular parenting arrangements for your child/ren of tender years, the family law team at Marino Law hold the expertise required to assist you. Please do not hesitate to contact us for an initial consultation.