Custody & Visitation of Infant Children in Divorce

by Brenna Davis
Divorce can disrupt early attachments in infant children.

Divorce can disrupt early attachments in infant children.

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Child custody and visitation cases can become contentious, especially when they involve an infant. Early attachment and bonding can affect a child's relationship with her parents for the rest of her life. Unfortunately, traditional custody arrangements may not facilitate this bonding process. Parents engaged in custody disputes over very young children should carefully consider the importance of developing attachments and work to maintain the child's attachment to both parents.

Best Interests Standard

All states use the "best interests of the child" standard in making custody and visitation determinations. Judges might take into account factors such as the emotional and physical health of each parent, financial stability and parenting competence. Several states, including Virginia, Wisconsin and Vermont, outline specific factors judges should consider when determining what is in the best interests of a child. Most states, however, do not give specific factors and instead offer general guidelines. In these states, judges have much more leeway in determining what factors matter. For infants, judges might consider whether a mother is breastfeeding, who is the primary caregiver for the child and who has a more flexible schedule. A parent who is unable to spend large quantities of time with the child, or who has never cared for a baby, might be at a disadvantage in some cases.

Tender Years Doctrine

The tender years doctrine is a presumption that babies should live with their mothers. In most states, this doctrine has been abolished. However, there is still an unstated presumption in many child custody cases that babies should be with their mothers because mothers are more likely to obtain custody of babies than fathers. When both parents can demonstrate they have provided care for the child and can continue to provide competent care, however, judges may determine that joint custody is the best choice for the child. In some states, such as Indiana and Pennsylvania, the law specifically states both parents must be considered as potential caregivers for the child, with no presumption in favor of either parent.

Child Advocates

Because the courts are aware babies have special needs, judges often appoint child advocates in cases involving children. A guardian ad litem is an advocate -- typically an attorney -- who is hired to investigate and represent the best interests of the child. A guardian ad litem may file motions and reports on the child's behalf. Court-appointed special advocates fill a similar role, but are more likely to be social workers or volunteers with training in child development. A court-appointed special advocate can let the judge know a child's specific needs. In some cases, a judge may appoint child experts, such as psychologists, to testify regarding the best interests of the child.

Overnight Visitation

Overnight visitation is a particularly contentious area of child custody law regarding babies. The tender years doctrine dictated that fathers should not have overnight visitation with babies, and this presumption still permeates many child custody proceedings. Many states have specific provisions regarding overnight visitation. Indiana, for example, requires both parents to receive overnight visits if both parents have previously provided overnight care for the child. In states without these specific provisions, fathers may need to prove the child is attached to them and they are able to provide competent overnight care.

Custody for Babies

Babies require custody arrangements different from the schedules typically given to older children. Frequency of visitation is much more important than length of visitation because babies have short memories and need ample contact to facilitate bonding and attachment. Further, because babies are not in school, their visitation schedules do not need to be constructed around the school year. If both parents are competent caregivers, the parents can alternate visitation days or one parent might be able to visit with the child every day during the other parent's parenting time. Seeing the non-custodial parent every other weekend is typically insufficient to promote parent-child bonding and can result in attachment issues and a disrupted relationship.