Assessments and Custody Recommendations

Because judges and attorneys are rarely experts on child development issues, they generally seek help when decisions are to be made about child custody or about termination of parental rights, the legal action that frees a child for adoption. Expert testimony in these cases is usually given by a psychologist or psychiatrist who has done a bonding assessment. (In spite of the fact that the term bonding is unusual in professional discussions of child development, legal discussions do not often speak of attachment.) As we will see, the expert's testimony is actually a custody recommendation and does not necessarily deal directly with attachment.

Assessment of attachment for custody recommendation purposes is not as easy as is sometimes implied. In earlier chapters, we saw that measurements of attachment must be different for children of different ages, and that available standardized routines, like the Strange Situation, are inappropriate for this purpose, having been developed for research on groups rather than evaluation of an individual child. So-called bonding/attachment assessments may be used to develop very general custody recommendations. These recommendations may also take into account past family history, particularly whether a given adult was the child's primary caregiver in the first years of life. Assessments may investigate a parent's knowledge about childrearing techniques, availability to care for the child, and attitudes about education and health care.

Bonding/attachment assessments may also involve observations of parent and child together, evaluating the appropriateness of their interaction, and whether they seem happy to be together. Although such observations could be valuable (does the parent seem to behave abusively or is the child frightened of or unresponsive to the parent?), in reality the conditions of the observation may be so artificial that the information gathered becomes almost useless. For example, a two-year-old in foster care may be scheduled for an assessment of attachment to a biological parent. The child may be picked up by an unfamiliar social services worker in an unfamiliar car, taken to an unfamiliar building, handed over to another unfamiliar person, and placed with the parent in an unfamiliar room where they are watched by another stranger. The child can hardly be expected to behave normally in these circumstances -- and neither can the parent. But it is in such situations that many observations are made.

A recent suggestion is that bonding/attachment assessments need to look at reciprocal connectedness.[11] Reciprocal connectedness is evidence of the feelings the parent and child have for each other, feelings that are expressed in different ways toward and by children of different ages. Expressions of feeling may range from eye contact and affectionate touching (parent and young child), to cooperation in teaching and play (parent and school-age child), to cooperation in setting rules and limits (parent and adolescent). The idea of reciprocal connectedness seems to be based on Bowlby's principle that goal-corrected partnership is an aspect of attachment.

Attachment Issues and Legal Decisions

Public attention was brought to the role of relationships in custody decisions by two cases: those of "Baby M" and of "Baby Jessica." In each case, parents' wishes took precedence over considerations of the child's emotional attachment, but the attachment question was clearly present.

In the 1986 Baby M case, the child's biological mother, Mary Beth Whitehead, had entered into a contract with a childless couple. She agreed to be inseminated with the husband's sperm, to act as a gestational surrogate or surrogate mother, and to surrender the child for adoption by the couple. After the little girl's birth, however, Mrs. Whitehead was reluctant to give up the child; she delayed for some months, even disappearing with the baby at one point. The childless couple brought a lawsuit asking for compliance with the original agreement and eventually won custody of Baby M. The court's decision was based on the competing rights of Mrs. Whitehead as the biological mother, and the rights of the couple under, the contractual agreement. Baby M was approaching an age where attachment to a familiar caregiver was an issue, and although child development professionals pointed this out, concern for this issue seems to have been absent in court.

In the 1993 case of Baby Jessica, the public's attention was captured by the distress of a toddler and her adoptive parents as they became caught up in a net of contradictory state laws and human errors. Jessica's unmarried biological mother had named the wrong man as the baby's birthfather. The actual biological father was unaware of the baby's birth and was never asked to voluntarily give up his parental rights -- an essential step for a clear adoption process. Jessica was adopted and reared for two years by a couple in a state that neighbored the one where she was born, the two states having different laws about paternal rights in adoption.

When Jessica's birthfather became aware of the child's existence, he undertook legal proceedings to assert his parental rights and take custody of the child, whom he had actually never seen. The legal battle again concerned the opposing rights of the birthfather and the adoptive parents, with little or no concern about the impact of a decision on Jessica. The birthfather won, and the adoption was disrupted. Jessica was taken screaming from her adoptive mother's arms and given to the birthfather. Cases like these, together with the progress of the best-interest principle, have encouraged the consideration of the child's emotional needs as one of the factors in child custody decisions. But, as we shall see, legal decisions have made a rather unsystematic use of this factor.