Custody & Visitation of Infant Children in Divorce

By Brenna Davis

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.

Divorce is never easy, but we can help. Learn More

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.

Divorce is never easy, but we can help. Learn More
California Laws on Teenage Custody Wishes


Related articles

Parental Visitation Rights in New Jersey

Public policy in New Jersey holds that both parents should be regularly involved in their child's life. When one parent has sole custody of the child, the other parent is usually granted visitation. Even in cases where domestic violence or mental health issues are present, New Jersey offers supervised visitation programs to ensure children still have contact with both parents.

Father's Rights in Indiana

The fathers' rights movement is a response to perceived injustices in the family court system throughout the country. Advocates for both fathers and children have brought about significant changes in child custody law over the past few decades, and many divorced fathers can look forward to increased time with their children and even primary custody. Indiana, like most states, uses a "best interests of the child" standard and considers each child custody case based on the individual circumstances of the family. As a result, there aren't explicit rules for the amount of time each father gets with his child. There are, however, numerous laws and procedures that can protect the rights of fathers.

About Dual Custody

Child custody evaluator Jonathan Gould argues in his book, "The Art and Science of Child Custody Evaluations," that children can suffer from a number of psychological and behavioral problems if the relationship with a parent is severed or weakened during divorce proceedings. Many courts look to some form of dual custody -- more commonly referred to as joint custody -- as a way of protecting the best interests of children. Joint custody arrangements do not necessarily require parents to split time with the child equally, and there are many joint custody options available to families.

Get Divorced Online

Related articles

Facts on Child Support & Visitation Laws in Oklahoma

Oklahoma, like all states, uses the "best interests of the child" standard in making custody and visitation ...

Child Rights in Divorce Visitations in Tennessee

In contentious custody battles, both parents frequently claim to represent the best interests of the child; however, ...

Shared Custody Agreements

In the past, most custody arrangements granted primary custody to mothers, giving only a few days of visitation to ...

An Example of a Child Custody Schedule

Continued contact with both parents after divorce is important to a child's development. Unless there has been ...

Browse by category
Ready to Begin? GET STARTED