A Judge’s Guide

Special
Considerations
DEVELOPMENTAL CONSIDERATIONS
underestimate the importance of interacting with the infant to encourage language
development.
Gauging the impact of separation and divorce on the nonverbal infant involves
careful observation. First, it is necessary to have a ‘baseline assessment’ of the
infant’s temperament from birth, usually revealed through parent and caregiver
accounts of the infant’s behavior prior to the separation. Testimony should then
focus on any unusual changes in feeding, sleeping, and alert patterns that may be
symptoms of stress. The infant experiencing stress, for example, is more likely to
be irritable, harder to calm, and to react unpredictably to caregivers.
In order to make a custody decision about an infant, you will need to hear
evidence on issues such as temperament, attachment, safety and security, and
acute signs of distress. You may obtain this information through the parents’
testimony, the child’s attorney and/or guardian ad litem, or from a court-ordered
evaluation and/or home study. You should gather as much information as
possible from individuals who have observed interactions between the infant and
each parent or other primary caregivers. With a thorough understanding of the
following issues as they relate to a particular child, you can draft an appropriate
parenting plan.
Temperament. Understanding the child’s temperament will
provide better insight into the particular child’s needs. As
discussed earlier, some infants may demonstrate a high tolerance
for stimulation and changes in environment from birth. Others
may be considered “colicky” in these beginning months or simply
unable to handle significant change.
Attachment. By three months, it is usually apparent who are the
infant’s primary caregiver(s). Decisions should focus on
preserving and maintaining these primary attachments. You may
wish to refer the family for a professional evaluation to assess
attachment. There are mental health professionals who specialize
in attachment assessments.
At the same time, attachment theory should not be used to exclude
an otherwise loving parent who has not been as consistently
involved with an infant’s daily needs prior to the separation. 5
Ideally, this parent can remain involved with short, frequent visits
that can be adjusted later when the infant is developmentally ready
or has formed a more secure attachment to the parent. The exact
point at which an infant can handle overnight visits or shared
physical custody, therefore, is variable and depends in large part on
the infant’s particular temperament and his or her need for a
predictable, consistent environment. Some infants, for example,
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