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Developmental

Psychology for Family

Law Professionals

Theory, Application, and the

Best Interests of the Child

Benjamin D. Garber, PhD, is a New Hampshire-licensed psychologist, state-certi￾fied guardian ad litem, practicing parenting coordinator, and expert consultant

to courts across the country. He is a nationally acclaimed speaker, an award￾winning popular press writer, and the author of numerous peer-reviewed profes￾sional publications in child development, mental health practice, and the law.

He is also is the author of Keeping Kids Out of the Middle: Child-Centered

Parenting in the Midst of Conflict, Separation, and Divorce (2008).

Across all of these professional roles and in writing this book, Dr. Garber

pursues the singular goal of helping families, communities, schools, and the

courts to better understand and respond to the developmental and systemic

needs of children. Learn more at www.healthyparent.com.

Developmental

Psychology

for Family

Law Professionals

Theory, Application, and the

Best Interests of the Child

BENJAMIN D. GARBER, PhD

New York

Copyright © 2010 Springer Publishing Company, LLC

All rights reserved.

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Ebook ISBN: 978-0-8261-0526-4

10 11 12 13 / 5 4 3 2 1

The author and the publisher of this Work have made every effort to use sources believed

to be reliable to provide information that is accurate and compatible with the standards

generally accepted at the time of publication. Because medical science is continually advanc￾ing, our knowledge base continues to expand. Therefore, as new information becomes

available, changes in procedures become necessary. We recommend that the reader always

consult current research and specific institutional policies before performing any clinical

procedure. The author and publisher shall not be liable for any special, consequential, or

exemplary damages resulting, in whole or in part, from the readers’ use of, or reliance on,

the information contained in this book. The publisher has no responsibility for the persistence

or accuracy of URLs for external or third-party Internet Web sites referred to in this

publication and does not guarantee that any content on such Web sites is, or will remain,

accurate or appropriate.

Readers are advised that no published work or generic source should ever be mistaken as

sufficient for understanding, diagnosing, or adjudicating a specific matter. This book only

offers general guidelines with which to understand certain areas of child and family develop￾ment and the means with which to apply these principles to certain family law matters.

Proper understanding of a specific individual’s needs calls for the careful administration of

direct, reliable, and valid assessment tools.

Library of Congress Cataloging-in-Publication Data

Garber, Benjamin D. (Benjamin David), 1959-

Developmental psychology for family law professionals : theory, application, and the best

interests of the child / Benjamin D. Garber.

p. cm.

Includes bibliographical references and index.

ISBN 978-0-8261-0525-7 (alk. paper)

1. Developmental psychology. 2. Families—Psychological aspects. 3. Parent and child.

4. Domestic relations. I. Title.

BF713.G365 2009

155.02’4346015—dc22 2009030047

Printed in the United States of America by The Hamilton Printing Company.

This volume is dedicated to you, the family court professional, who wades

patiently and skillfully through the raging tides of caregiver conflicts, who

faces the damage done by ignorant and ill and substance-abusing parents,

who endures the bottomless pit of paperwork and delay and who risks

sanity, no less than life and limb, confident that our children’s health and

happiness are worth all of this and more. May the blessing of even one

child’s smile carry you through many rough seas.

This book is dedicated, as well, to my three muses, Zoe, Mollie, and Laura,

not only for their insight, perspective, and feedback, but for sharing in the

profound and incomparable adventure of growing up together.

This page intentionally left blank

Contents

Preface ix

Acknowledgment xv

PART I: ONE SIZE CAN NEVER FIT ALL 1

1 Why a Perspective on Child and Family Development? 5

2 Caveat Lector: On the Limitations and Relevance of 19

Developmental Theory, Statistics, and Methods

PART II: DEVELOPMENTAL THEORY IN OVERVIEW 41

3 Cognitive Development 43

4 Language Development 55

5 Social and Emotional Development 69

6 The Child’s Defense Mechanisms: Regression, Stress, and 95

Impediments to Developmental Capacity

7 Developmental Asynchrony and De´calage 105

PART III: IN THE BEST DEVELOPMENTAL INTERESTS OF THE CHILD:

TOPICS IN SEPARATION, VISITATION, AND REUNIFICATION 141

8 A Child’s Understanding of Time, Separation, and Loss 143

9 Custodial Schedules and Infant Overnights 153

10 On Visitation Resistance and Refusal 165

11 Growing Up Apart: Child–Parent Separation 179

vii

viii Contents

12 Development and Parent–Child Reunification 201

13 Development and the Termination of Parental Rights 215

PART IV: ADVANCED APPLICATIONS OF DEVELOPMENTAL

THEORY TO FAMILY LAW PRACTICE 227

14 What Is a “Mature Minor”? 229

15 Psychological Assessment and Diagnosis in Family Law 247

16 Alienation, Estrangement, and Alignment: The Tools and 263

Weapons of Affiliation

17 Development in the Mirror: On Becoming (and Remaining) 279

a Family Law Professional

APPENDICES

Appendix I: Learn More Now: Agencies, Organizations, and Experts 295

Appendix II: Preserving Families, Serving Children’s Needs, and 309

Building Our Shared Future: A Proposal for a National Program of

Continuing Parent Education

Appendix III: Select Resources for Involuntary Separation: 311

Incarcerated, Enlisted, or Hospitalized Parents

Appendix IV: Mentoring Youth: Anchoring Kids Cast Adrift 319

Appendix V: On Compassion Fatigue, Burnout, and 321

Vicarious Traumatization

References 325

Index 381

Preface

Developmental Psychology for Family Law Professionals: Theory, Applica￾tion, and the Best Interests of the Child is a practical application of

developmental theory to the practice of family law. It intends to help

you to ask questions that are developmentally informed and to better

understand the breadth of experience, reams of reports and depth of

emotion that must be digested in the course of seeking to understand

each child’s unique needs. It will provide you with new tools with which

you might better understand the developmental needs, synchronies, and

trajectories of children and—perhaps most critically—it will urge you

to see each child in terms of fit and growth. Ultimately, this book

seeks to guide you to recommend outcomes that anticipate changing

developmental needs.

Succeeding in these combined goals is intended first and foremost

to improve family court outcomes in the best interests of each child,

but may simultaneously improve the validity of your work and thereby

solidify your footing in deposition, as well as under direct and cross￾examination. To the extent that Developmental Psychology for Family

Law Professionals: Theory, Application, and the Best Interests of the Child

makes your work more scientifically based and your conclusions more

reliable and valid, you may be in better standing the next time an

injured and acrimonious parent brings you before a licensing board, a

malpractice hearing, or an appeals court (see chapter 17).

Succeeding in these goals may further benefit the courts and the

communities they serve by decreasing recidivist traffic. Developmentally

informed family court outcomes seek not only to fit children’s present

needs, but to implement outcomes that anticipate and account for

continuing growth. This may mean that revolving door litigants have

fewer reasons to return to court, can invest critical resources in their

children rather than their attorneys, and our courts’ tremendous backlog

and burden might thereby diminish.

ix

x Preface

But Developmental Psychology for Family Law Professionals: Theory,

Application, and the Best Interests of the Child must not be misunderstood

to be a recipe book that can ever replace your own insights, intuitions,

compassion, and skill. In the best of circumstances, this book will serve

as reliable metric but, like the shoemaker’s tape measure, it remains

up to you when and where and how to apply it.

A WORD ABOUT WORDS

I’ve taken certain liberties in writing this book in the interests of making

an already complex subject a bit more readable and succinct, even if

perhaps a bit less politically correct. Here I would like to point out

certain choices in word usage, particularly as regards references to age

and developmental stage, gender (and family roles, both in case exam￾ples and in distinctions between developmental research and theory.

Age and Stage References

Some aspects of development are continuous over time (e.g., height).

Others are marked by qualitative shifts that are commonly referred to

as stages, as in “the terrible twos.” Many developmental theorists dis￾cussed in the pages to follow speak in terms of successive stages like

so many steps in a flight of stairs.

In the case of discontinuous growth, it is useful to refer to the onset

of a stage in terms of an associated landmark skill or capacity. Thus,

the stage of physical growth known as puberty is commonly marked

by specific physical “landmarks” (as measured by Tanner Stages, e.g.,

Sun et al., 2005). The same is true of stages of cognitive, social, and

emotional development, even if the landmark features are not as

readily apparent.

When stages of development are commonly associated with specific

chronological ages, those ages are stated. However, all such ages must

be understood to be approximations only: “Individuals differ consider￾ably in the timing of the development of psychosocial maturity, making

it difficult to define a chronological boundary between immaturity and

maturity” (Cauffman & Steinberg, 2000a, p. 758). Research demon￾strates time and again that the specific age at which a specific develop￾mental milestone appears can vary dramatically by individual, culture,

Preface xi

language, opportunity, diet, and a host of other environmental variables.

Thus, “[even] for Piaget, the key element was the sequence, not the

age of cognitive transformations” (Lourenco & Machado, 1996, p.147).

The most valid and meaningful aspect of any such discussion will always

be the sequence of steps.

Even as approximations, references to specific developmental mile￾stones must further be understood to assume a full-term gestation of

40 weeks in utero. For example, a reference to the typical child beginning

to walk unassisted at twelve months in fact refers to twenty-one months

postconception. This is important in the case of the child born two

months prematurely whose first birthday actually occurs at nineteen

months post-conception and who, therefore, might look quite different

from his peers on their first birthdays.

Gender References

In telling the story of development and its application to family law

practice, references are made to boys and girls and caregivers of both

genders for ease of expression without implying anything specific to

either gender. For example, a child’s ability to tolerate separation from

a primary caregiver might begin with the phrase, “Her capacity to

maintain a secure internal image of the missing parent…” rather than

writing out the awkward “his/her” and “s/he.” However, there are a

number of sex-specific developmental differences. In these instances,

the distinction will be made explicitly, as in the statement, “Boys’ early

gross motor development typically precedes that of female age mates.”

Family Role References

Again, for ease of reference, the hypothetical families who populate

this book are framed in the terms of a conventional, heterosexual,

married, “Leave it to Beaver” family structure. Thus, children are dis￾cussed in relationship to one mother and one father, paternal relatives

and maternal relatives. In fact, the research literature upon which this

book is based is more or less explicitly limited to exactly this population.

Nevertheless, this book intends no such bias. To the fullest extent

possible, the family law matters discussed here are intended to apply

to children and their caregivers regardless of race, religion, culture,

xii Preface

gender, age, generation, sexual orientation, and/or the legal status of

the adult relationship or of the caregiver–child relationship.

This means that, unless specifically noted to the contrary, a discus￾sion of a child’s attachment to his mother can reasonably be generalized

to apply to the quality of the relationship between a little girl and her

foster or adoptive father. By the same token, a discussion about the

quality of communication between coparents will most commonly refer

to a heterosexual married—or previously married—couple, but is rea￾sonably generalized to apply to any pair of adults who share the primary

responsibility for a child. These generalizations are expected and en￾couraged, with the caveat that they probably go beyond the research

data that informs them.

I also note that I write at a time of transition in family law. Where

terms like “custody” and “visitation” were ubiquitous 10 years ago,

they are slowly being replaced by more awkward but politically correct

terms such as “parenting rights and responsibilities” and “parenting

time,” respectively. In the interests of readability and space, I intermix

these terms as I see fit, never intending to connote ownership as might

be inferred from the word “custody” or irrelevance and disinterest as

might be associated with “visitation.”

Specifically, in the text that follows, the “custodial parent” and the

“residential parent” are interchangeable references to the adult who is

vested by court order (or by happenstance) with day-to-day decision￾making responsibility for a child. The “parent on duty” (or POD) is

the adult who has the immediate responsibility for the child’s care.

Finally, in the context of transition between two caregivers, as com￾monly occurs between separated and divorced parents or between a

foster and a birth parent, the “sending parent” is the adult who is giving

up POD responsibility and the “receiving parent” is the adult who is

accepting POD status.

Case Examples

When it seems useful, I have taken the liberty of illustrating the applica￾tion of developmental principles with hypothetical and fictitious case

examples, derived from my experience and that of collaborating col￾leagues. In every instance, relevant details have been changed to protect

confidentiality and privilege, except when case law is cited. Even in

Preface xiii

these latter, precedent-setting instances, we must agree that the real

children’s lives, must never be unduly exploited or publicized.

REFERENCES, CITATIONS, AND

RESOURCES IN THIS BOOK

Developmental Psychology for Family Law Professionals: Theory, Applica￾tion, and the Best Interests of the Child provides you, the front-line family

law professional, with the relevant and up-to-date data with which to

make developmentally informed, systemically oriented, and therapeutic

recommendations in the best interests of the child. However, it is

impossible for any single text, or compendium of texts, to discuss all

that is known about child development, let alone apply this data to a field

as diverse and provocative as family law. In this regard, Developmental

Psychology for Family Law Professionals must not stand on its own.

This book simply cannot adequately do the job that it intends between

two covers.

Professional ethics, relevant procedural guidelines and particular

court preferences commonly mandate that our work be grounded in

relevant, peer-reviewed, empirical research (e.g., Gould & Martindale,

2008). In service of this goal, Developmental Psychology for Family Law

Professionals is peppered with a tremendous number and great breadth

of links to further information. Citations to up-to-date literature are

provided wherever possible. Separate bibliographies of relevant re￾sources are devoted to several topics deserving of attention far greater

than what I can provide. Direction to relevant associations, agencies, and

Web sites appear throughout the text and are summarized in Appendix I.

Copious footnotes elaborate and provide alternate interpretations and

competing ideas. At the potential risk of interrupting the flow of the

text, these links intend to empower you to go far beyond this text, to

learn more about the particular issues that arise in a particular case, and

thereby to better understand and fulfill the needs of each unique child.

Children are not well served if social policy is based on lawyers’ opinions and

judges’ instincts or the views of advocacy groups, rather thanon the sound

foundation of knowledge actually available.

—Leslie Shear et al., Amici curiae brief, In re Marriage of LaMusga

xiv Preface

[B]y what manifesto was the family law bench imbued with greater wisdom

and knowledge about the children than that possessed by the consenting

parents themselves?

—Tom Altobelli, Federal Magistrate, Sydney, Australia