June 23, 2014 by Robert Franklin, Esq.

Since we’re back on the issue of overnight care of very young children, I thought it would be a good time to deal with the most recent paper on the subject by our old friend Jennifer McIntosh. As I reported here, McIntosh and her new co-authors, Marsha Cline Pruett and Joan Kelly, have put out two companion papers. In the first, we find a completely different McIntosh from the one whose work has for years formed the basis of public policy in Australia and elsewhere that marginalizes fathers in children’s lives. Part I of the two recent papers admits that children form attachments to both parents, that those attachments are important for children’s ability to adjust to the world around them, that their attachment to one parent doesn’t depend on their attachment to the other parent, etc. The authors also admit the importance of fathers to children and that children tend to do better with two parents actively involved in their lives.

They also say that the current state of the social science on very young children doesn’t permit hard and fast conclusions about what type of parenting arrangements are best for kids when their parents don’t live together. Therefore, no one can provide courts with clear guidelines with which to issue parenting plans.

So it’s altogether strange that the same authors get very close to doing exactly that in Part II of their recent work. To be clear, what McIntosh, et al are doing in Part II is specifically designed to guide courts’ orders. They provide a single page of “Considerations for determining post-separation overnight care of children aged 0-3.” There follows a handy chart that, for example, a judge could use in a custody case to issue parenting time orders. Indeed, I don’t doubt for an instant that that’s its sole purpose.

Here are the factors listed by Part II:

1. Safety

A)The child is safe in the care of each parent

B) Parents are safe with each other

2. The child’s trust and security with each parent

The young child:

A) is continuing an established, trusting relationship (of 6 months or more) with a parent

When resident parent is not present, the young child:

B) seeks comfort from and is soothed by the other parent

C) finds support for exploration with the other parent

3. Parent mental health

The parent has:

A) sensitivity in recognizing and meeting child’s needs

B) no or well-managed drug and alcohol issues

C) no or well-managed mental health issues

4. Health and development

The young child:

A) has significant developmental or medical needs

B) such needs are well supported in the proposed arrangement

C) the infant is exclusively breast-feeding or will not yet accept a bottle

5. Behavioral adjustment

Relative to temperament and stage of development, the child shows any of the following persistent behaviors (i.e., over 3–4 weeks):

A) irritability, frequently unsettled, without medical cause

B) excessive clinging on separation

C) frequent crying or other intense upset

D) aggressive behavior, including self-harming behavior

E) regression in established behaviors, e.g. toileting, eating, sleeping

F) low persistence in play and learning

G) any regressions or difficulties in the above are short lived and readily resolved

6. Co-parental relationship

Parents are able to:

A) communicate civilly about and plan for their young child together

B) manage conflicts arising, using interventions as needed

C) be consistent yet responsive with the schedule

D) value or at least accept the child’s relationship with the other parent

E) put their child’s needs before their own wishes for time/contact

F) ensure low stress exchange of the child at transitions

7. Pragmatic resources to support sharing of overnights

A) can be the main caregiver for the young child during scheduled overnight and majority of scheduled day time (excluding work time)

B) live within a manageable commute of each other

C) when a parent cannot personally care for the child overnight, care by the other parent is prioritized

8. Family Factors

A) Older siblings sharing the same overnight schedule are a source of security to the young child

B) Overnight arrangements would enable maintenance of other relationships that are sources of security to the child, (e.g., grandparents) and/or enable exposure to important elements of each parents’ cultural or religious practices.

Judges are supposed to consider those factors and decide what number of overnight visits per week, the non-custodial parent should be allowed. If a certain factor is present or absent, the chart provides what conclusions are to be drawn in terms of overnight stays, if any. So for example, under Factor 4(c), if the child is breastfeeding, then judges are instructed to issue a particular type of order which is “Rare/No overnights indicated.” The same appears to be true if, under factor 6, the parents don’t get along. The same holds if the child hasn’t been permitted to form relationship with one of the parents of six months or more. Etc., etc.

Then, if some of the favorable factors are present, but not all, the non-resident parent is, according to the chart, allowed more overnights with the child. And if still more positive factors are present, still more overnights. How many? The alternatives the authors provide to the first category of overnights, “Rare/No overnights,” are “1-4 per month” and “5 + per month.” That last is referred to as “higher frequency.” So, according to these authors, 5 nights out of 30 (16.7%) constitutes high frequency parenting for Dad.

Now, I must emphasize the fact that both Parts I and II are written explicitly with the real-world of family court in mind. So the authors are aware that, in all but rare instances, the residential parent is Mom and the non-residential parent is Dad. So when they refer to “overnights,” they know and we know that, in all but the rarest of cases, they’re explicitly referring to how often fathers — not mothers — get to see their kids.

And, since the authors explicitly wrote this in the context of family court practice, they are also aware that parents don’t always behave themselves when it comes to custody issues. So it’s worth noticing how many of the authors’ considerations are directly under the control of the custodial parent, i.e. Mom. How long she decides to breastfeed the child determines Dad’s access. Her willingness to communicate with Dad, comply with the parenting schedule, promote Dad’s relationship with his child, permit him to see the child at all, etc., are solely up to her. According to the handy chart prepared by McIntosh, et al, any mother with a pulse can see how to marginalize Dad in little Andy or Jenny’s life. And all with the imprimatur of the court and, of course McIntosh, et al.

Nor do the authors ignore the matter.

Conflict is not always perpetrated or maintained by both parents (Kelly, 2003). Conundrums exist when the parent caring for the child a majority of time is also the one to unreasonably reject or block the meaningful participation of the other parent.

Stated another way, mothers are known to often create conflict to keep Dad out of the child’s life and the authors simply punt that issue by calling it a “conundrum,” and letting it drop.

But didn’t these very authors say in Part I that social science really doesn’t yet provide a prescription for parenting plans for children under four? Yes, they did, which raises the issue that, since they’re trying to specifically guide courts in their orders, what’s the science behind McIntosh, et al’s handy-dandy chart?

If there is any, the authors didn’t cite it. In an eight-page article, seven sources are cited and none of them to support any aspect of the chart. So, if you’re looking for some sort of social science for the proposition that children should never see their fathers overnight if Mom and Dad aren’t communicating well, don’t bother looking too hard; there isn’t any. There’s not any back-up for any of the chart, which raises the question “where’d it come from?”

As far as I can tell, the authors just confected the thing out of nothing.

In a nutshell, McIntosh, et al, have come up with a handy guide to judicial decision-making that has no basis in science. They’ve constructed their guidelines in the context known to them to have Mom as the residential parent in virtually all cases. And their guidelines coincidentally give Mom essentially complete power over Dad’s access to children. And finally, even if she plays nicely and doesn’t interfere with his time with the kids, that time is likely to be so limited as to be all but non-existent.

In short, on one hand we have a Jennifer McIntosh who, for the first time, is saying all the right things about the value of fathers to children and, on the other has produced an easy-to-use chart for judges that does nothing to ensure that kids ever see those fathers she proclaims to be so important to them.

This doesn’t look to me like the same old anti-dad McIntosh. No, it looks to me like an altogether more politically adept one. If charged with anti-dad sentiment, she can now point proudly to Part I and its paean to fathers and their influence on kids. Meanwhile, the real Jennifer McIntosh — the one who’s ever ready to find ways to keep fathers out of their children’s lives — is still lurking in Part II.

Here’s an idea: why doesn’t everyone just start ignoring Jennifer McIntosh. We know what she’s about and we know there are far better and far more honorable scientists in the field of child well-being. 110 of them signed on to Richard Warshak’s recent analysis of the science of family structure and the welfare of very young children. Let’s give them and their ideas a chance.


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National Parents Organization is a non-profit that educates the public, families, educators, and legislators about the importance of shared parenting and how it can reduce conflict in children, parents, and extended families. Along with Shared Parenting we advocate for fair Child Support and Alimony Legislation. Want to get involved?  Here’s how:

Together, we can drive home the family, child development, social and national benefits of shared parenting, and fair child support and alimony. Thank you for your activism.

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