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A Letter to the Court "Overnights and other custody/visitation arrangments with divorced or separated parents of infants and toddlers" by Isabelle Fox, Ph.D.

A Letter to the Court "Overnights and other custody/visitation arrangments with divorced or separated parents of infants and toddlers" by Isabelle Fox, Ph.D.

by Isabelle Fox, Ph.D.


The Court is often confronted with a number of perplexing problems as divorced or separated parents battle with each other over their "rights" to custody and visitation with respect to children of various ages. Each parent is usually represented by their own attorney (whose individual competence, knowledge and motivation may vary widely). But in the typical "family law setting" where there is no issue of abuse, the child - the crucially important party - has no advocate; there is, literally, no one except the judge who can protect the child and make a ruling in the best interests of the child. To do this, it is essential that the Court understand a basic tenent of child development: that infants and toddlers have emotional and psychological requirements vastly different from older children:

The vignette is all too familiar: mother and daddy appear before the Court locked in battle. The father, employed during the work week, wants every other weekend visitation with his 10 month old daughter or son. "I am a good dad - and hurried day of the week visits aren't enough. I want a Friday and Saturday overnight; I'll bring my toddler back by noon Sunday - I'm entitled!"

On the surface, it does sound quite logical. But, it overlooks a basic need of every infant: the creation and strengthening of the infant's feeling of trust and security that can only come from consistent nurturing care by their primary caregiver in a familiar setting. Our "example infant", by ten months, has developed a close "attachment" and bond to his mother. When he is upset, he turns to his mother for comfort and security. Since he has no language ability and little or no sense of time, he cannot be prepared for any change in his environment or routine. To allow "overnights" away from his primary attachment figure (mother) and in an unfamiliar setting would be stressful and traumatic, with long range and even lifetime negative consequences! It is impossible for the mother (or anyone else) to explain to a ten month old child, "I love you. I am not deserting you. I will see you again in just twenty-four hours. I can't nurse or sing to you tonight. Don't despair." Instead, the non-verbal infant, away from his familiar home or apartment, feels abandoned with deep feelings of impotence, anger and sadness. His crying may eventually subside, but the residue of rage and hopelessness can haunt the child and influence his relationship with both his mother and father for years to come.

"Overnight" visitation away from the primary caregiver and familiar routines is not in the best interests of the child until approximately age three when there is usually enough language ability for the child to understand where he is going, who will take care of him, what is happening and when he will be returned to his familiar caregiver. It is true, of course, that some children speak quite well at two years and if they do, overnights can be considered somewhat earlier. But, extended time away - especially at night, does create stress for most children.

For infants and toddlers, visitation by the non-residential parent should start with frequent visits with both parents present. However, if the infant is separated from his familiar environment, he should be no more than an hour or two away from the primary attachment figure - (which is usually the mother, but could be either the father or grandparent). Typically, dad might play with the child in the mom's home or take the child for a walk to a local park or to the father's own residence. Such visitations are to be encouraged since a relationship with both parents is not only desirable, but essential. But it should take place regularly and frequently. First, one or two hours visitation several days a week may be appropriate. When the infant becomes a toddler, the time may be extended to three or four hours. If the child seems disturbed - continues to cry, etc., consideration should be given to a prompt return to the mother or other primary attachment figure.

Eventually, the child begins to trust that both parents are responding to his needs. The child should not be made to feel that one parent is abandoning him, nor that the other is punitively keeping him away from the parent who provides comfort and protection. This approach, where fathers, as well as mothers become attuned to the child's needs and wants, is the best investment to insure positive and loving relationships with both parents.

It is important to minimize the stress that will naturally be experienced by infants and toddlers when separations occur with visitation and custody arrangements. How parents handle these separations, changes in residential environment and routines, and the introduction of substitute caregivers will profoundly influence the emotional security of their child.

Normal infants and toddlers experience separation anxiety in the first and second years of life, even in the safety of their home. When a mother walks out of a room and closes the door behind her, this can often bring forth cries of distress from her year-old toddler. So it should not be surprising that extended overnight visitations can be experienced as traumatic and abusive by the very young. However, when children feel that their caregivers are nurturing, protective and responsive, and also close at hand, they will eventually feel safe and secure. As a result, both the primary caregiver, as well as the non-custodian parent will enjoy the child's positive responses and attitudes.

Eventually, as the child matures both cognitively and verbally, more convenient and "equal" time arrangements can be arranged. In the end, both parents will certainly benefit by having the court focus on what is in the best interests of the child. Unfortunately, anger between the contesting parties can blur the issues involving visitation arrangements. Custodial "tugs-of-war" often make it difficult for the court to arrive at a decision that will be best for the child. Without an advocate, the child can easily end up as a mute victim of the final decision.

The court (or counsel for a party) may question: Why are overnights contraindicated until the child is three? A natural question would be: "Wouldn't three or four months be sufficient to allow the child to become acquainted with dad? Why should either parent or child be required to wait two years before an 'overnight' is permitted?" The answer: Primary attachments are very critical and profoundly important. This is where and how all of us learn to trust, to give and receive love, and to develop a sense of optimism and hope. Such attachments and the bonds that are created can easily be damaged in the first years of life. They cannot be repaired easily. Fifty years of research has shown us that children whose early security is threatened may become anxious, angry or withdrawn, with lifelong problems. The primary reason why overnights can be endured (and - later - enjoyed) is that cognitive skills and verbal ability allow the older children to be prepared for separations and to be able to communicate more effectively their needs, desires, worries and concerns.



1. Visitation by the non-residential parent should start with regular frequent visits with both parents present.

2. For infants, initial visits away from the primary caregiver should be no longer than two hours.

3. For toddlers, time away may be increased to three or four hours.

4. After separation, if the child is distressed for an extended period, the child should be returned to the primary caregiver for comfort.

5. Overnights should not be scheduled until the child has sufficient language to be prepared for the experience and to understand where and for how long he or she will be away from the primary attachment figure - (age two or older).

The court must ask itself when making custody decisions: Will this decision meet the appropriate needs of the child? The "best interest of the child" must take into account the child's age, emotional, social and physical development. In many situations, court decisions are made on the basis of what is "fair and equitable" to each parent rather than what is best for the child. But a child is not a bank account or other asset to be divided.

The child who is older than three can retrieve memory of difficult experiences and with the help of a sympathetic ear, resolve and mitigate these stressful experiences. However, the pre-verbal child is unable to conceptualize or even recall disturbing events. Instead, these infants and toddlers are left with a legacy of anger, sadness and anxiety, which is extremely difficult to remedy. All possible efforts should be made to avoid this result and not make decisions that are stressful and traumatic for the infant and toddler.


No attempt is made to cover the older children and their many different legal issues that will come before the court. These matters, along with an excellent and detailed discussion of early childhood are very well covered in a 1997, 47-page publication of the Spokane County Bar Association: "CHILD-CENTERED RESIDENTIAL SCHEDULES." Copies may be obtained by mail for $7.50 each, plus $1.50 shipping and handling, or a total of $9.00 sent to:

Spokane County Bar Association

1116 West Broadway - 4th Floor Annex

Spokane, WA 98260-0030

Tel: (509) 477-6032

Isabelle Fox, Ph.D. received degrees from Radcliffe College and UCLA. She was a practicing psychotherapist in Southern California for over thirty years, specializing in parent-child relationships and developmental issues. For ten years, Dr. Fox was a senior mental health consultant for Operation Head Start. Currently, she is a member of the Advisory Board of Attachment Parenting International. Dr. Fox is the author of Being There (Barron's, 1996).

Isabelle Fox, Ph.D.