Attachment Methodology in Custody Evaluation: Four Hurdles Standing Between Developmental Theory and Forensic Application

Abstract

Post-separation and post-divorce child custody guidelines have evolved from one-size-fits-all, gender-biased and adult-centered norms toward today's resource-intensive, child-centered best-interests standard. For all of its broad appeal, the best-interest standard remains ill-defined. The present paper discusses attachment theory as an empirically rich, developmentally-informed and systemically-oriented model with great promise to some day inform child custody litigation but which remains, as yet, impractical and without adequate validation for this application. Four hurdles are identified which family law professionals must yet overcome before this wealth of data can begin to become part of best-psychological-interests custody evaluations.

KEYWORDS:

• attachment
• best interests
• custody
• family law
• strange situation

ACKNOWLEDGEMENTS

The author is indebted to Robert Erard, Ph.D., Ginger Calloway, Ph.D., and Leslie Drozd, Ph.D. for encouragement, patience, insight, and invaluable editorial guidance in developing these ideas for publication.

Notes

Judge Neely is quoted in Glendon (1986, p. 60) as stating that, “The vague and open-ended ‘best interests of the child’ test appears reasonable, he says, ‘until we understand how much sinister bargaining is carried on in the shadow of this unpredictable, individual-oriented system.’”

The best-interests standard pervades our contemporary institutions, from the United Nations' 1959 Declaration for the Rights of Children (United Nations, 1959), to the Charter of Fundamental Rights of the European Union (European Union, 2000). It is explicitly referenced by organizations as diverse as the American Academy of Pediatrics (e.g. Diekema, 2005), only the American Academy of Pediatric Dentistry (2003), the American School Counselor Association (2004), the National Association of Social Workers (1996), the American Academy of Child and Adolescent Psychiatry (2002) and the American Psychological Association (APA; 2002) and is no less popular among legal professional groups, throughout local, state and federal legislation and court rulings on all levels. By 2005, “every state … indicates that custody decisions are to be made according to [the] ‘best-interests of the child’ standard” (Emery, Otto, & O'Donohue, 2005, p. 5). In one recent review (Garber, 2007b), over 90 references to serving the “best-interests of the child” (or a variant of the phrase) were identified in the Wisconsin statutes regarding, “Actions Affecting the Family” as in the direction that, “the Guardian ad litem shall be an advocate for the best-interests of the minor child.”

Pearson and Munson (1984) cite a 1979 study which found 299 published custody determination criteria.

Glendon (1986, p. 59) argues specifically that, “in divorce law, the traditional stronghold of judicial discretion, the judge's discretionary power should be brought within a framework of clear, ordered and consistent principles.”

“The principal limitations of the Strange Situation procedure are that it is only applicable within a narrow age range (perhaps as narrow as 12–18 months), that repeated assessments have to be spaced to prevent strong carryover effects, and that the situation and scoring procedures do not lend themselves to research on developmental changes in the attachment control system. The procedure is also expensive to administer and score, and scoring is difficult to learn without direct instruction” (Waters & Deane, 1985, p. 47).

The literature has traditionally discussed the four major attachment types as categorical and distinct. The Q-set generates a continuous measure of attachment security, consistent with more recent theorists (e.g., Fraley & Spieker, 2003).

Two weeks of intensive training followed by 18 months of reliability testing. “The AAI is one of the most time-consuming instruments in the area of developmental and clinical psychology and developmental psychopathology. It requires extensive training and practice, careful verbatim transcription of 1-hr interviews, and mastery of a laborious coding procedure” (Steele & Steele, 2008, p. 85–86).

The AAI protocol is discussed in Hesse (1999) and available at: http://www.psychology.sunysb.edu/attachment/measures/measures_index.html

Many adult self-report attachment measures are reviewed at http://psychology.ucdavis.edu/labs/Shaver/measures.htm

This perspective is embodied in the use of the Least Detrimental Alternative standard for custodial assignment (Goldstein, Freud, & Solnit, 1979).

Kelly and Lamb (2000, p. 302) summarize: “Although secure and insecure attachments were once thought to be fixed and stable over time, this appears to be true only when the infants experience reasonably stable family conditions…. Factors known to influence the security and stability of attachments include poverty; marital violence and high conflict between parents; and major life changes such as divorce, death, or the birth of a sibling, which in each instance are associated with more insecure attachments.”

It is this author's clinical experience that children embroiled in high conflict divorce seldom have secure attachment relationships with either parent and rarely, if ever, appear to have secure attachment relationships to both parents.

The author notes with chagrin that the literature has largely neglected the role of the sibling group (e.g., Teti, Sakin, Kucera, Corns, & das Eisen, 1996) in custodial research and recommendations.

In some instances, viewing family video recordings with a child, a parent, a sibling group or a child–parent dyad proves an invaluable source of evaluative data.