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December 16th, 2011 by Robert Franklin, Esq.
The roll-back of shared parenting laws in Australia is barely two weeks old, when this appears (Sydney Morning Herald, 12/15/11).

It seems that the Australian Association for Infant Mental Health has published “guidelines,” presumably for use by family court judges in deciding custody and visitation issues for children under the age of two.  The guidelines have no legal authority and there’s no indication of who, if anyone, asked the Association to publish them.

In a nutshell, they say that divorced or separated fathers should have minimal contact with their children prior to the age of two.  Oh, they don’t say ‘fathers.’  They employ the euphemism “primary parent,” but we all know who that is.  In Australia, over 90% of parents with primary custody are mothers.  According to the guidelines, that leaves dads out in the cold.

…Wayne Butler, executive secretary of the Shared Parenting Council of Australia, fears they will influence judge’s rulings.

”When parents are together, they care for the babies on a shared basis,” Mr Butler said. ”There’s no reason why there couldn’t be reasonable overnight contacts [after separation] when the parents are co-operative.”

Mr. Butler is right, of course.  From here on, there won’t be a custody case in the country regarding a child under two, in which the mother’s attorney doesn’t wave the guidelines in the judge’s face.  That’s because the guidelines say frankly that there should be only one primary parent during a child’s first two years of life.  And we all know who that is – Mom.  According to the guidelines, overnight visits with the non-primary parent “should be avoided unless necessary.”  What “necessary” means in that context is left unexplained.

So, if the guidelines are implemented, what does Dad get?

The guidelines recommend that non-custodial parents, nine out of 10 of whom are fathers, should instead see children under two during the day, up to three times a week, gradually phasing in overnight visits after the second birthday.

So the guidelines recommend that dad should see Junior during the day, i.e. when Dad’s at work earning to pay court-ordered child support.  As a practical matter, that means he sees his newborn rarely if ever until he/she is two and then he gets “gradually phased into the child’s life.”

I don’t know what planet the members of the Association inhabit, but the idea of that happening in the extremely anti-father world of Australian family courts would be laughable if it weren’t so tragic.  The simple fact is that the guidelines will be used first to deny fathers real time with their newborn children.  Then, when the child reaches age two, courts will be told that Dad hasn’t spent time with the child and so hasn’t “earned the right” to parent in the future.

Whether that’s the intention of the Association, I don’t know.  In the absence of such information, I’ll attribute more benign motives to its members.  I’ll say, until I know differently, that these people are academic researchers with an imperfect grasp of what actually happens in family courts, and let it go at that.

Amazingly, the guidelines are based on a single study completed in 2010 by Dr. Jennifer McIntosh and others.  Here it is.

If you have the time, it’s an interesting read, mostly because its methodology and findings do little to back up the conclusions the Association drew.  The study deals with children from birth to five years old, with a special section devoted to those under two.  It sought to find out if those children undergo emotional stress from spending overnights with a non-custodial parent.  So it compares infants in intact families to those with various ranges of shared care.  Some of the non-custodial parents had essentially no contact with their child.  Others had between one and 11 overnight visits per year; still others had 1 – 3 nights per month; another group had 1 – 2 nights per week and the final group had up to five nights every two weeks.

The researchers gathered data in three areas – whether the child had been sick (with “wheezing”), its level of irritability and its level of visual monitoring of the primary parent.  “Wheezing” seems to be a proxy for anxiety, while monitoring the parent seems to indicate stress.

Now, all that is very worthwhile, but the study has some very obvious flaws and weaknesses, many of which are acknowledged in its write-up.  For example, the sample surveyed is tiny; only 258 children were considered.  But of those, 174 (67.4%) had little or no contact with their fathers.  That means that the entire cohort of children studied who had one or more nights per week with their father numbered 63.

More important, was how the data were gathered.  The researchers asked the primary parent for her observations about whether the child appeared anxious, followed her with its eyes, cried easily and was difficult to comfort, and the like.  So, with the exception of illness, 100% of the data are subjective.  If a mother reads anxiety in her little one, that’s what she reported.  If not, she didn’t.  But there was no effort to quantify or objectify any of the observations.  Mothers projecting their own anxieties were treated the same as those who weren’t.  The researchers might be able to make a case for that methodology if the cohort of subjects had been large, but it wasn’t.  That means errors in gathering and recording data could have resulted in signficant errors in the conclusions drawn.

Not only that, but no non-custodial parents were interviewed about their observations of the children they cared for.  That’s right, not one.  Of course almost all of the non-custodial parents of the children in the study were fathers.  If I read the data correctly a grand total of two fathers contributed information to the researchers out of the non-intact families.

Do the researchers think that might inject a bit of gender bias into their findings?  If they do they don’t let on about it.  And when you consider it, that’s a strange way to conduct a study.  After all, many of these fathers had almost no contact with their children, but 83 of them had a fair amount.  That means they were available to the researchers to be asked their views on their children’s level of stress or contentment.  But they weren’t asked.

Morerover, the mothers who took part in the survey bear little resemblance to Australians generally.  For example, from 0% to 3.39% of the mothers worked full-time, while 78% – 83% worked not at all.  An astonishing 79% – 90% of the mothers relied on government support for their income.  The mothers with infants under the age of two were overwhelmingly poor, underemployed and undereducated.

All that and more raise the obvious question ”were the babies stressed because they spent the night with their non-custodial parent or because their custodial parent was stressed?”  It’s a question the researchers neither asked nor answered.

Worse, if their data supports their conclusion, I can’t see it.  There seem to be significantly fewer children ill with wheezing who are in the exclusive care of their primary parent than those with more non-custodial parent contact.  But whether that actually is a proxy for anxiety or not looks like an open question.

But on the other two markers, irritability and visual monitoring, significant differences aren’t present at all.  Go to page 133 of the study and the two charts indicate only tiny differences among the four groups of parental arrangements.  Indeed, children with one or more overnights per week are exactly as irritable as those in intact families.  But the overwhelming conclusion is that keeping fathers out of the lives of their infants affects their stress level slightly if at all.

The researchers don’t notice it, but their findings could argue as strongly for breaking up intact families and turning over the infants to mothers as well as they do for keeping fathers out of the children’s lives. 

At the end of the study, the researchers take pains to point out its limitations and argue for more research to be done to iron out the wrinkles in their work.  One of the obvious problems they acknowledge is that parents who pass off children to each other for overnights may do so because the children are irritable, stressed and the parents need a break.  That is, the researchers may have mistaken an effect for a cause.

In short, this is a single study and a small one with many obvious flaws.  But that didn’t stop the Australian Association for Infant Mental Health from bootstrapping it into a set of guidelines that likely will result in the separation of still more fathers from their children.  That may or may not have been the intention, but it will probably be the result. 

Perhaps the last word should come from a parent who’s lived what the “experts” are recommending.

Caring for a toddler alone can be ”a tremendous burden,” Bunny Banyai, co-author of frank new parenting book Sh*t On My Hands, said. Her daughter Clementine was 18 months old when Ms Banyai separated and it was decided she was too little for overnight stays with dad. But now Ms Banyai regrets it.

”I was almost psychotic with tiredness and so my relationship with my daughter suffered,” she said. ”She was pining for her dad.”

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