In the Best Interests of the Child: Drafting Parenting Plans Considering the Child’s Age and Special Needs

To truly be in the best interests of the child, parenting plans cannot be based on “fill-in-the-blank” templates. Such an approach may be fast, less expensive and address a divorcing couple’s need for finality but in no way addresses the nuances required by the stages of a child’s development. This article addresses the drafting issues presented by each stage of a child’s development and how the Collaborative approach can best resolve these often highly emotional issues.

Before During and After Birth

If the mother is pregnant at the time of the divorce, issues surrounding the birth and its aftermath must be addressed. Who is allowed to be in the birthing room? Who will be allowed to feed the newborn, particularly if the mother is intending to breast feed? The Collaborative approach allows for the negotiation of these delicate issues. If the relationship between the parties is such that the mother does not want the father in the birthing room, perhaps he can wait outside until the actual birth and then be allowed in. If the mother is breast feeding, it is not in the best interest of the newborn to allow this to prohibit a father’s opportunity to bond with his child. Pumping the breast milk and giving it to the father for feeding allows the father to establish meaningful contact with his infant.  The Collaborative approach encourages these types of compromise.

Up to Six Months

This period of the infant’s development is crucial for bonding. In the Collaborative practice model, the Mental Health Professional Neutral (MHP Neutral) drafts the parenting plan to support the creation of attachment by the infant to both parents. In the past, it was thought that there was one primary attachment figure in the infant’s life. Current research has demonstrated that this is not true. Infants can form multiple attachments during this period. Accordingly, it is important for the parenting plan to allow for both parents to participate in basic caretaking activities (bathing, feeding, playing, dressing). To form a bond, the infant needs frequent short contact with both parents. The Collaborative approach can encourage both parties to have contact with the infant either daily, which is ideal, or at least every other day.

Six to Eighteen Months

During this critical period, timesharing arrangements must be structured to maintain the child’s bond to both parents. This is true whether both parents are fully involved with the child or only one parent is involved. Frequency and consistency of contact maintains the bond with the child. If the bond is disrupted due to conflicts between the parents, the child is harmed. Research shows that fathers who feel disenfranchised tend to “fall out” of the child’s life. An uninvolved father impairs the child’s development. Mothers estranged from the father can balk at encouraging the father’s frequent involvement. “He has never done this before. I am the one who does everything.” The Collaborative approach strives to reach compromises on these issues that supports, not impairs, the child’s progress to health and maturity.

Toddlers to Two Years

By this time period, the child can transition to a more typical timesharing schedule. If one of the parents is a “secondary” caregiver, the parenting plan should encourage this caregiver to stay involved. The MHP Neutral encourages and counsels the parents to refrain from showing negative emotions or expressing negative feelings in front of the child. Toddlers are very sensitive to tone of voice, body language and other cues of anger and tension and must be shielded from these to the extent possible.

Six to 12 Years

During this period a huge shift occurs in the child’s life from a focus on the parents to a focus on school and the social groups school provides. Children become more vocal and share their opinions. Children can choose “favorites” during this period and fluctuate as to who their “favorite” is. It is critical for the parenting plan to allow for a reassessment of what is in the best interests of the child. There are a number of important issues to address. Some examples:

  • Who is going to maintain contact with the child’s teacher(s)?
  • Which parent is going to be involved in the child’s chosen activities, e.g. sports, etc.?
  • Who is monitoring the child’s friendships and contacting the parents of the child’s friends?
  • If one parent will be traveling with the child, what guidelines are there for notification of the other parent, going out of the country, missing school?
  • Who will decide on a new school?
  • If “face time” with a parent is scheduled, what are the rules for the other parent regarding no texting or telephoning to disrupt that time?
  • What religious instruction will the child receive and which parent will be involved?

The Collaborative approach flushes out the potential conflicts on these issues and structures a compromise that addresses the child’s best interests not the parent’s desires.

Adolescence

When the dreaded teens arrive, the parenting plan comes up against puberty and this poses a number of challenges for the parents. Effective parenting plans for adolescents incorporate the development of a plan in which both parents create and mutually enforce firm guidelines and boundaries for the teenager, while taking into consideration the wants and needs of the adolescent. Sometimes, this presents a challenge as parents can struggle with the gradual process of transitioning the child from a dependent relationship with them into an independent unique person. As a child grows and gets older, it is increasingly important to learn to be flexible in developing co-parenting strategies by focusing on compromise and communication.

An understanding of brain development is helpful when considering the best interests or needs of an adolescent. During childhood, and beyond, the brain has the ability to grow and change. New research into brain biology has reported that the rapid neural connectivity once considered occurring primarily in early life also reoccurs during adolescence. The brain continues to form and develop into the mid-to-late twenties, which in turn influences the judgment and decision-making processes of an adolescent. Consequently, it is important for parents to be mindful when dealing with adolescents that many have, and will develop, opinions and ideas based upon his or her own thoughts and experiences. Further, the adolescent’s ideas or opinions may or may not reflect the opinions or ideas of the parents, or reflect the parent’s interpretation of an event or experience. Often during a divorce, one parent will attribute the ideas and opinions of the adolescent to the influence of the other parent, instead of recognizing that the adolescent frequently has a unique and individual perspective and interpretation of the situation. Unfortunately, sometimes adolescents can and do develop entrenched and sometimes extreme positions. For example, it is not uncommon for an adolescent to tell one parent or the other “I never want to see you again. I wish you were dead.” While hurtful in nature, the extreme opinions or ideas sometimes expressed during adolescence are not a divorce specific phenomenon.

Due to the high tensions and stress associated with a divorce, parents might misinterpret an adolescent’s behavior as resulting from negative actions on the part of their co-parent. Therefore, it is helpful for parents to understand the differences between affinity, estrangement and alienation. Parental Alienation Syndrome is a term coined by Richard A. Gardner in the early 1980s to refer to what he describes as a disorder in which a child, on an ongoing basis, belittles and insults one parent without justification, due to a combination of factors, including indoctrination by the other parent and the child’s own attempts to denigrate the target parent. Although this is a commonly used term, Parental Alienation Syndrome is not a clinical diagnosis that is recognized by the American Psychological Association (DSM-5).

Affinity is when a child displays a preference for a one parent over the other. This is a normal developmental phenomenon that occurs due to a child’s temperament, gender, social interests, or identification with one parent’s attributes.  The child still has and wants a positive relationship with the other parent. Affinities are natural and should not be of concern. A child having an affinity for one parent over another is not an indication that the child does not like or love the other parent. The child’s affinity does not indicate Parental Alienation, nor is this phenomenon divorce specific.

Estrangement occurs when a parent’s past or present real behaviors have, or are creating an uncomfortable situation for the child.  Estrangement is different from alienation because the child has reasonable or understandable reasons for the timesharing resistance. Children become estranged from their parents for a number of reasons such as: 1) witnessing domestic violence, 2) parental history of drug or alcohol abuse, 3) emotional or physical abuse, 4) excessive parental control, 5) neglectful or poor parenting, 6) prolonged periods of lack of contact or 7) parental mis-attunement or the parent is not “attuned to the child’s needs”. Child/Parent estrangement always has clear identifiable and realistic reasons for the child to resist parental visitation. Again, as with affinity, estrangement is not a divorce specific phenomenon.

Parental alienation is a set of strategies designed to “alienate” the child’s relationship with the other parent by undermining and interfering with the child’s ability to develop and maintain a positive relationship with the other parent. This behavior is often an indication of the parent’s inability to successfully separate the child from the couple’s conflict. Instead of focusing on the needs of the child to have a healthy loving relationship with both parents, this parent encourages the child to emotionally reject the targeted parent. Often this parent is unable or unwilling to separate his or her own strong persistent negative emotions regarding the other parent from the child. Unfortunately, this results in another loss for the child, a loving and competent parent. While most commonly associated with the co-parenting conflict associated with a divorce, parental alienation is not a divorce specific phenomenon.

It is important for parents to remember that sometimes children or adolescents have other reasons for timesharing resistance or refusal that are not associated with parental estrangement or alienation.  For example, normal developmental issues are often a factor in a child or adolescent’s timesharing reluctance.  This is especially evident during adolescence. For example, one parent’s home might offer better social opportunities such as more accessible friends. Some adolescents simply do not like the disruption in activities between the parent’s homes. Sometimes a child or adolescent prefers one family, home, or parent to another.  And finally, sometimes differences in parenting styles or loyalty binds are a factor in timesharing reluctance or resistance.

Social science research has consistently shown that it is not the divorce itself that can inflict long-term damage on the child but high conflict between the parents during the divorce. Although some parents might want their children to choose sides in a divorce or parental separation, most parents understand that this is not in their children’s best emotional interest. However, some parents might attempt to capitalize on a child’s estrangement from the other parent and this needs to be discouraged. Hopefully, parents understand that winning the “short game” (gaining what they see as a temporary advantage) is not in their long-term interest let alone the child’s, and are able to focus on the “long game” (helping the child grow into a healthy adult) by not putting the child/adolescent in the middle of co-parenting conflict.

Special Needs Children and Divorce

This is a very broad and complex topic. A few key issues will be addressed. First, why is it important to think of special needs in the context of divorce? The number of children diagnosed with special needs is rising – asthma, ADHD, autism, etc. Secondly, research indicates that 85% of marriages with special needs children end in divorce so the Collaborative divorce professional is likely to encounter these issues. Third, often after a divorce, each parent has less money making it difficult to fund therapy, treatment and medications. Fourth, traditional developmental guidelines as described above may not apply. Children with Down syndrome, autism or mental retardation may function significantly below their chronological age. It is critical for the parenting plan to address these differences. In many instances the need for stability in residential placement and consistency in routine may outweigh a custodial schedule that provides equal time with both parents.

Who are “special Needs” children? “Special needs” is an umbrella term. What does it really encompass? “Special needs” is a designation that covers a staggering array of conditions from learning disabilities, profound cognitive impairment, serious medical illness, developmental disorders, physical disabilities and severe psychiatric disturbance. The key aspect of all these conditions is that they tend to be chronic and require additional services, sometimes throughout the person’s life. Collaborative professionals cannot be experts at every type of condition but should have information on the most common conditions faced by the family courts: autistic spectrum disorders, attention deficit/hyperactivity disorder, learning disabilities and serious depression (especially with teenagers).

How do special needs impact parenting plans? Special needs children pose a number of challenges regarding the content of the parenting plan. The severity of the disorder must be addressed. For some conditions, cerebral palsy for example, specifications for ongoing services are required, e.g. occupational and physical therapy. An assessment of each parent’s ability to understand and appreciate the risks of the child’s condition is important. If a parent fails to understand the potential consequences of not handling Type 1 diabetes properly, the result can be literally life-threatening. Parental capacity (understanding the condition, effective participation in the treatment plan, ability to attend medical appointments, compatible temperament) are key considerations. Consider which parent is best able to maintain highly structured schedules and attention to physical dangers and childproofing. One of the parents may have the same problem (e.g. ADHD) as the child which impacts that parent’s ability to support the proposed parenting plan. If the child has a severe condition requiring a lifetime solution, the Financial Professional Neutral may need to be consulted to structure a trust fund to finance the person’s ongoing care. In some cases, there may be a need to appoint a Guardian ad Litem, or a Parenting Coordinator.

Over the past ten years a risk-assessment model has been developed which can form a good basis for drafting the parenting plan. (See Family Court Review, Volume 53, Issue 2, pp. 113-133, “Parenting Plans for Special Needs Children – Applying a Risk-Assessment Model”, Pikar and Kaufman from which Tables 1 and 2 were reproduced.) The model provides a way to systematically analyze the Risk and Protective Factors that inform timeshare and custodial recommendations. The domains/variables are outlined in Table 1 and are drawn from several key sources in the fields of child psychiatry, pediatric medicine and forensic mental health assessments in the field of divorce and child custody. Particular emphasis is placed on the demands on parents to support and participate in intervention plans. These risk/protection domains should be examined in conjunction with other global parent variables (i.e., mental health functioning and parenting capacity), child variables (i.e., age of the child, the child’s wishes, attachment issues), and co-parenting variables (i.e., level of conflict, gatekeeping) that are typically examined in a child custody evaluation.

Because of the demands placed on parents by these children as well as the broad array of disorders, multiple factors should be considered in determining an appropriate timeshare schedule. Table 2 lists these factors which can roughly be broken down into three broad categories: Child Factors, Parent Factors and Parent-Child Interaction Factors. The considerations posed by both tables should be considered on a continuum from likely to be successful with a more typical developmentally-based schedule, to those where the Collaborative practice professional should give strong consideration to recommending or ordering a schedule that places a child primarily in the care of one parent. In these instances, frequent access to both parents may have to be sacrificed for the sake of safety, stability, routine and implementation of treatment and educational plans. Needless to say, these cases can be complex. Table 2, when used in conjunction with the risk/benefit assessment, can guide the MHP Neutral in the process of weighing the data gathered.

Conclusion

It is clear from the discussion above that the “one size fits all” parenting plan template is inadequate to address all the above issues. The parenting plan cannot address just the issues posed by the child’s stage of development at the time of the divorce. Every parenting plan should include a section requiring periodic re-evaluation of the child’s development and situation. There can be no presumptive timesharing schedule. Parents may resist this due to a desire to “be done with it” and over concerns of cost. Considering the ramifications of failing to handle properly the issues discussed here,  it can be less costly to have the MHP Neutral address these issues with the parents as they come up over time than ignore them and deal with the consequences. Periodic re-evaluations are certainly more cost-effective than repeatedly going back to the courtroom in litigation.

Contributors:

Mercedes McGowan, Ph.D.

www.MercedesMcGowan.com

(904) 373-0659

Tracy L. Johnson EdD, LMHC

www.familymatters.com

(904) 269-3522

Edna Schaefer

www.psychologytoday.com

(904) 685-1478

David C. Blackmon, Ph.D.

www.drdavidblackmon.com

(904) 333-3389

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