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STEMMING THE TIDE OF MISINFORMATION:

INTERNATIONAL CONSENSUS ON SHARED PARENTING

AND OVERNIGHTING

Richard A. Warshak, Ph.D.

ABSTRACT

Warshak, with the review and endorsement of 110 researchers and

practitioners, analyzed more than four decades of research and issued

a peer-reviewed consensus report on parenting plans for young

children. As intended, the report stemmed a tide of misinformation that

was threatening to resurrect myths about child development and

enshrine them in professional practice and family law. The list of

endorsers and their professional accomplishments reflect the

widespread acceptance of the consensus report’s findings that favor

shared parenting and overnighting for young children under normal

circumstances. Two years after its publication, the conclusions and

recommendations of the Warshak consensus report remain supported

by science.

ICHARD

A. W

ARSHAK

, P

.D. is a Clinical Professor of Psychiatry at the University of

Texas Southwestern Medical Center in Dallas, Texas, and a clinical, consulting, and

research psychologist in private practice. He consults and testifies internationally in child

custody proceedings. Through his studies on divorce and custody appearing in 14 books

and more than 75 articles, Dr. Warshak has had a broad impact on family law. He studies

the psychology of alienated children; children’s involvement in custody disputes; and

outcomes of divorce, child custody decisions, stepfamilies, relocations, and parenting

plans for young children. Also he develops educational materials and interventions to

help understand, prevent, and overcome damaged parent–child relationships. His website,

warshak.com, provides resources for family law attorneys and their clients. Dr.

Warshak’s latest book,

Divorce Poison: How to Protect Your Family from Bad-mouthing

and Brainwashing,

is widely regarded as a classic, and is available in e-book, audiobook,

and seven foreign editions. The video he co-produced,

Welcome Back, Pluto:

Understanding, Preventing, and Overcoming Parental Alienation,

is used in every state

in the U.S. and 26 foreign countries.

ORRESPONDENCE CONCERNING THIS ARTICLE

, and requests for the report endorsed by

an international consensus of experts, should be addressed to Dr. Warshak at

[email protected]

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Richard A. Warshak

Stemming the Tide of Misinformation

INTRODUCTION

Main Issues

Judges and lawmakers hear competing versions from the mental health field

about what type of parenting plans are best for very young children. Discussions

of parenting time for young children who are raised by parents who live apart

from each other generally address three main issues.

1. Should young children’s time be concentrated predominantly under the

care and supervision of one parent, or should their time be more evenly

divided between parents?

2. Should young children under the age of four spend nights in each parent’s

home, or should they sleep in the same home every night?

3. Are the benefits to the child of involvement with both parents, or

overnight care, diminished or erased if the parents disagree about the

parenting plan, or if one or both parents feel great discomfort or hostility

toward the other?

Differences of opinion regarding shared parenting time for children under the

age of four years focus on the issue of whether giving children more time with

their fathers, aimed at strengthening father-child relationships, risks harming

mother-child relationships. The concern is that spending too much time away

from the mother, or having overnights away from her, rather than increasing the

odds that a child will have a high quality relationship with both parents, will result

in the child having poor relationships with both parents.

Background

Our society holds a curious double standard when it comes to encouraging

hands-on shared parenting. For instance, we want dads involved with their infants

and toddlers—diapering, feeding, bathing, putting to bed, soothing in the middle

of the night, cuddling in the morning. But when parents separate, some people

think that young children need to spend every night in one home, usually with

mom, even when this means losing the care their dad has been giving them.

Despite all strides in cracking gender barriers, many of us still think that it is

primarily the mother’s role to care for infants and toddlers, and that we jeopardize

young children’s wellbeing if we trust fathers to do the job.

Where does science stand on these issues? A body of research from the 1970s

to the 1990s challenged stereotypes and prejudices that had governed child

custody decisions throughout most of the 19

and 20

centuries. The results of

social science studies throughout the United States converged to support the

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Richard A. Warshak

Stemming the Tide of Misinformation

position that most children needed and wanted more contact with their fathers

after divorce than they were having.

In 1994 a multidisciplinary group of experts, sponsored by the U.S. National

Institute of Child Health and Human Development (NICHHD), met to evaluate

the empirical evidence regarding the ways in which children are affected by

divorce and the impact of various custody arrangements. In 1997, eighteen

experts from the NICHHD group issued a consensus statement concluding:

Time distribution arrangements that ensure the involvement of

both parents in important aspects of their children’s everyday lives

and routines—including bedtime and waking rituals, transitions to

and from school, extracurricular and recreational activities—are

likely to keep nonresidential parents playing psychologically

important and central roles in the lives of their children. How this

is accomplished must be flexibly tailored to the developmental

needs, temperament, and changing individual circumstances of the

children concerned.

Over time, custody policy and decisions increasingly reflected the importance

of frequent and continuing contact between children and both parents, including

giving children more contact with their fathers. Nevertheless, professional

opinions continued to favor the practice of denying infants and toddlers overnight

contact with their fathers, even those children who had been accustomed to seeing

their dads every day and experiencing his care at bedtime, in the middle of the

See, e.g.,

ANFORD

L. B

RAVER

& D

IANE

O’C

ONNELL

, D

IVORCED

ADS

: S

HATTERING

THE

YTHS

(1998) (Arizona); C

HARLENE

E. D

EPNER

& J

AMES

H. B

RAY

ONRESIDENTIAL

ARENTING

: N

ISTAS IN

AMILY

IVING

(193) (Arizona); E.

Mavis Hetherington, Martha Cox, & Roger Cox,

Effects of Divorce on Parents and

Children, in

ONTRADITIONAL

AMILIES

: P

ARENTING AND

HILD

EVELOPMENT

233

(Michael E. Lamb ed., 1982) (Virginia); E. M

AVIS

ETHERINGTON

& J

OHN

ELLY

, F

ETTER OR

ORSE

: D

IVORCED

ECONSIDERED

(2002) (Virginia); John W. Santock &

Richard A. Warshak,

Father Custody and Social Development in Boys and Girls,

34 J.

. I

SSUES

112 (1979) (Texas); J

UDITH

S. W

ALLERSTEIN

& J

OAN

ERLIN

ELLY

URVIVING THE

REAKUP

: H

HILDREN AND

ARENTS

OPE WITH

IVORCE

(1980)

(California); R

ICHARD

A. W

ARSHAK

, T

USTODY

EVOLUTION

(1992) (Texas);

Richard A. Warshak,

Father-Custody and Child Development: A Review and Analysis of

Psychological Research,

4 B

EHAV

. S

. & L. 185 (1986) (Texas); Richard A. Warshak &

John W. Santrock,

The Impact of Divorce in Father-Custody and Mother-Custody

Homes: The Child’s Perspective, in

HILD

. & D

IVORCE

29, 38, 42–43 (Lawrence A.

Kurdek ed. 1983) (Texas).

Michael E. Lamb, Kathleen J. Sternberg, & Ross A. Thompson,

The Effects of Divorce

and Custody Arrangements on Children’s Behavior, Development, and Adjustment,

. & C

ONCILIATION

. R

. 393, 400 (1997).

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Richard A. Warshak

Stemming the Tide of Misinformation

night, and in the morning.

I labeled presumptions against “overnighting” until

children reach the age of four or five,

blanket restrictions.

Between 2000 and 2002 a well-cited exchange of articles in

Family Court

Review

addressed the wisdom of guidelines that restricted young children from

sleeping in their fathers’ home. One group of authors supported flexible,

individualized parenting plans rather than absolute rules favoring or prohibiting

overnights.

Those authors recommended that decision makers consider the option

of overnights with fathers for its potential benefits to the children’s developing

stable and lifelong relationships with both parents. Those opposing this view

conceded the need for some relaxation of blanket restrictions, but continued to

emphasize the potential harm rather than potential benefits of overnights.

They

proposed that overnights should be viewed with caution rather than prohibited or

contraindicated on an a priori basis, thus accepting that in some cases overnights

with their fathers might be in young children’s best interests.

In the aftermath of the 1997 consensus statement, subsequent articles on

parenting plans for young children, and a growing body of research relevant to

parenting plans, the importance of providing sufficient opportunities for children

to develop and maintain high quality relationships with both parents became

generally recognized as the accepted and settled science with respect to child

custody issues.

The decade between 2001 and 2011 saw increasing acceptance of

overnights for infants and toddlers among mental health professionals, courts, and

parents. This remained the zeitgeist until 2011.

Richard A. Warshak,

Blanket Restrictions: Overnight Contact Between Parents and

Young Children,

38 F

. & C

ONCILIATION

. R

. 422 (2000) (giving examples of

guidelines in the professional literature advocating restrictions against overnights).

Joan B. Kelly & Michael E. Lamb,

Using Child Development Research to Make

Appropriate Custody and Access Decisions for Young Children,

38 F

. &

ONCILIATION

. R

. 297 (2000); Michael E. Lamb & Joan B. Kelly,

Using the

Empirical Literature to Guide the Development of Parenting Plans for Young Children:

A Rejoinder to Solomon & Biringen,

39 F

. C

. 365 (2001);

Warshak,

supra

note 3; Richard A. Warshak,

Who Will Be There When I Cry In the

Night? Revisiting Overnights—A Rejoinder to Biringen et al.,

40 F

. C

. R

. 208

(2002).

Zeynep Biringen et al.,

Commentary on “Blanket Restrictions: Overnight Contact

Between Parents and Young Children”

40 F

. C

. R

. 204 (2002); Judith Solomon &

Zeynep Biringen,

Another Look at the Developmental Research: Commentary on Kelly

and Lamb’s “Child Development Research to Make Appropriate Custody and Access

Decisions for Young Children”,

39 F

. C

. R

. 355 (2001).

See, e.g.,

Gordon E. Finley & Seth J. Schwartz,

The Divided World of the Child:

Divorce and Long-term Psychosocial Adjustment,

48 F

. C

. R

. 516 (2010); Seth J.

Schwartz & Gordon E. Finley,

Troubled Ruminations About Parents: Conceptualization

and Validation With Emerging Adults,

88 J. C

OUNSELING

& D

. 80 (2010).

See also

Joan B. Kelly,

Paternal Involvement and Child and Adolescent

Adjustment After Separation and Divorce: Current Research and Implications for Policy

and Practice,

2 I

’

. F

. L., P

’

& P

RAC

. 5, 10 (2014) (“These heated

controversies in the United States and elsewhere in the last decade were exacerbated by a

Family Court Review

special issue on attachment (McIntosh, 2011), which focused on

infant-mother attachment research and policy conclusions regarding overnights.”).

Jennifer E. McIntosh,

Guest Editor’s Introduction to Special Issue on Attachment

Theory, Separation, and Divorce: Forging Coherent Understandings for Family Law,

. C

. R

. 418, 424 (stating that McIntosh and the commentators she interviewed

concurred strongly that “Overnight stays away from the primary caregiver in early

infancy are generally best avoided, unless of benefit to the primary caregiver.”).

Also see

Jennifer McIntosh,

Special Considerations for Infants and Toddlers in

Separation/Divorce: Developmental Issues in the Family Law Context, in E

NCYCLOPEDIA

ARLY

HILDHOOD

EVELOPMENT

[online] 1, 4 (Robert E. Emery, topic ed., Richard

E. Tremblay, Michel Boivin, Ray DeV. Peters eds., 2011),

available at

http://www.child-

encyclopedia.com/divorce-and-separation/according-experts/special-considerations-

infants-and-toddlers.

(In a section titled “Implications for Parents, Services and Policy,”

McIntosh states: “In early infancy [defined by McIntosh as under 2 years old], overnight

stays are contra-indicated, undertaken when necessary or helpful to the primary

caregiver. . . .”

See, e.g.,

Kelly,

supra

note 7, at 10.

See also

Michael E. Lamb,

A Wasted Opportunity

to Engage with the Literature on the Implications of Attachment Research for Family

Court Professionals,

50 F

. C

. R

. 481 (2012) (commenting on the restricted range

of views in the issue of

Family Court Review

that McIntosh guest edited: “The resulting

special issue contained a total of 11 articles—an introduction by McIntosh, two invited

articles, and the edited transcripts of eight interviews by McIntosh with one or (in three

cases) several commentators. Nine of the articles were ‘authored’ by the editor, and

(remarkably) all 11 listed her as a corresponding author, underscoring the narrowness of

the perspective offered to readers of the special issue.”)

See also

Pamela S. Ludolph,

The

Special Issue on Attachment: Overreaching Theory and Data,

50 F

. R

. 486, 493

(2012) (noting: “[T]he Special Issue, and particularly its summary [the one article in the

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Richard A. Warshak

Stemming the Tide of Misinformation

noted “the absence of any articles or consideration of infant-father attachments,

and the limited and methodologically flawed research used to establish broad

conclusions that substantial time with fathers and overnights after separation were

detrimental.”

CURRENT CONSENSUS OF SOCIAL SCIENTISTS ON

PARENTING PLANS FOR YOUNG CHILDREN

Practitioners and scholars in the field of child custody expressed concerns that

this seeming reversal of a decade-long endorsement of shared parenting for

preschool children was generating widespread confusion and uncertainty about

where the scientific community stood on these issues. To give voice to those

concerns, and in an effort to right a ship that was listing from a tide of

misinformation, I spent two years reviewing the relevant scientific literature. Then

I vetted my analyses by incorporating feedback from an international group of

experts in the fields of attachment, early child development, parent-child

relations, and divorce. The results appeared in

Social Science and Parenting

Plans for Young Children: A Consensus Report

published in the American

Psychological Association’s journal,

Psychology, Public Policy, and Law,

that is

edited by Cambridge University Professor Michael Lamb, a prominent child

development scholar.

The report was published with the endorsement of 110 of

the world’s leading researchers and practitioners, several who contributed seminal

studies cited in the report.

The first goal was to provide a balanced and accurate overview of settled,

accepted research from the past 45 years relevant to parenting plans for children

under the age of four whose parents lived apart. The second goal was to provide

empirically informed guidelines for policy makers and for people involved in

making custody decisions.

No support was found for the idea that children under four need or benefit

from restrictions with parents who are loving and attentive. Warnings against

infants and toddlers spending overnight time with each parent are inconsistent

with what we know about the development of meaningful, positive parent-child

relationships in the first few years of children’s lives. Babies and toddlers need

journal issue solely authored by McIntosh] overreaches the available research data, doing

so by remarkable omissions and over-generalizations. The voluminous literature on the

role of fathers in early childhood was barely touched upon. Monotropy was reified,

despite its being an idea unsupported by empirical evidence. The serious attention many

researchers have given to the attachment capabilities of both parents was virtually

unmentioned. Serious losses of childhood were confounded with trivial ones.”).

Kelly,

supra

note 7, at 10.

Richard A. Warshak, with the endorsement of the researchers and practitioners listed in

the Appendix,

Social Science and Parenting Plans for Young Children: A Consensus

Report,

20 P

SYCHOL

., P

. P

’

. & L. 46 (2014). This article, available to legal and

mental health professionals on request from the author, lists in the Appendix the names

and positions of the endorsers, and provides reference citations for all the studies

included in the consensus report literature review and analysis. Others can purchase the

article at http://psycnet.apa.org/journals/law/20/1/46/.

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Richard A. Warshak

Stemming the Tide of Misinformation

parents who respond consistently, affectionately, and sensitively to their needs.

But infants and toddlers do not need, and most do not have, either parent’s full-

time, round-the-clock presence. Many married mothers work night shifts that keep

them away from their infants and toddlers at night without damaging their

children’s secure attachment or their development. As a result, most mothers

separated from the other parent should have no reason to worry about leaving

their children in the care of the other parent.

To maximize infants’ chances for a secure lifelong bond with both parents,

public policy should encourage both parents to actively participate in daytime and

overnight care of their young children. Scholars who study the benefits of

children’s relationships with both parents find no empirical support for the belief

that mothers are more important than fathers in their infants’ and toddlers’ lives.

In short, after their separation, both parents, in most circumstances, should seek to

maximize the time they spend with their young children, including the sharing of

overnight parenting time. This lays a strong foundation for parent-child

relationships and allows children to enjoy the unique and overlapping

contributions of each parent to the children’s development and well-being.

ANALYTIC GAPS BETWEEN SCIENTIFIC EVIDENCE AND

BLANKET RESTRICTIONS

An extensive knowledge base, drawn from more than four decades of research

directly relevant to this topic, informed the conclusions of the international

consensus report. The consensus report refutes the claim that a scientific

foundation exists for a general policy of limiting or discouraging young children’s

overnights with one parent when their parents live apart. Those who advocate

such a policy often cite two studies to support their concerns about the risks of

shared parenting and overnights for children under the age of four.

The first study was a 2010 report written by McIntosh, Smyth, and Kelaher,

issued by the Attorney General’s department in Australia, and copyrighted by a

clinic founded by the study’s first author.

The second study, by Tornello et al.,

was published in 2013.

The consensus report identified significant problems and

limitations in both studies that should affect the admissibility and weight of

Jennifer McIntosh, Bruce Smyth & Margaret Kelaher,

Parenting Arrangements Post-

separation: Patterns and Developmental Outcomes, Part II. Relationships Between

Overnight Care Patterns and Psycho-emotional Development in Infants and Young

Children: Report to the Australian Government Attorney-General’s Department, in

OST

SEPARATION

ARENTING

RRANGEMENTS AND

EVELOP

MENTAL

UTCOMES FOR

NFANTS AND

HILDREN

: C

OLLECTED

EPORTS

85 (Jennifer McIntosh, Bruce Smyth,

Margaret Kelaher, Yvonne Wells & Caroline Long eds., 2010),

available at

https://www.ag.gov.au/FamiliesAndMarriage/Families/FamilyLawSystem/Documents/

Postseparationparentingarrangementsanddevelopmentaloutcomesforinfantsandchildrencol

lectedreports.PDF. The report is copyrighted by Family Transitions, a private clinic

founded and directed by McIntosh.

Samantha L. Tornello, Robert Emery, Jenna Rowen, Danile Potter, Bailey Ocker, and

Yishan Xu,

Overnight Custody Arrangements, Attachment, and Adjustment Among Very

Young Children,

75 J. M

ARRIAGE

& F

. 871 (2013).

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Richard A. Warshak

Stemming the Tide of Misinformation

testimony that relies on these studies.

The U.S. Supreme Court in

General

Electric Co. v. Joiner

noted: “[C]onclusions and methodology are not entirely

distinct from one another. . . . A court may conclude that there is simply too great

an analytical gap between the data and the opinion proffered.”

The analytical

gap metaphor offers a useful critique of some experts who have expressed

opinions based on these two studies. Understanding several kinds of gaps in the

testimony of these experts should inform trial examinations of the reports and

testimony of these experts.

Gaps Between Research Participants and Custody Litigants

One obvious and wide gap between the findings from these two studies and

expert witness testimony is the difference between the populations studied and

typical custody litigants. The Australian study’s sample is not representative of

parents who are going through a divorce because most of the parents in the study

were never married to each other (90% for the sample of infants and 60% for

toddlers), and 30% had never even lived together. Nothing is known about the

behavior and relationships between the parents and children prior to the couples’

separations. Even if the study reached verifiable conclusions, the differences

between Australian children of unmarried fathers who may or may not have had

any pre-separation relationship with their children and American children whose

married parents are divorcing and who are accustomed to their fathers’ care is too

wide a gap to bridge. The consensus report affirmed that optimal parenting plans

are different for children who have a pre-existing relationship with both parents

and those who do not.

The second study similarly focused predominantly (85%) on children whose

parents had never been married or lived together (30%). Tornello et al.’s sample

was even less typical than the Australian sample of most parents who take a

custody dispute to trial or who mediate a settlement with lawyers. The study’s

data came from the Fragile Families sample of inner-city children born in

impoverished circumstances: 62% of the age 1 sample lived below the poverty

line, 60% of the parents were imprisoned before the children’s fifth birthdays,

85% were Black or Hispanic, 65% had parents who had nonmarital births from

more than one partner in their teenage or young adult years, and nearly two-thirds

had not completed high school.

In sum, even if the results from these two

studies are trustworthy their relevance to U.S. custody disputes is slim.

See

Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579 (1993).

General Elect. Co. v. Joiner, 522 U.S. 136, 146 (1997).

See also

OHN

ERVOPOULOS

, C

ONFRONTING

ENTAL

EALTH

VIDENCE

8 (2

ed. 2015)

(Referencing General Elect. Co. v. Joiner,

supra:

“Courts may view opinions with

analytical gaps that are too wide as unreliable and thus inadmissible.”)

For a discussion of strategies to cross-examine mental health experts who rely on

unwarranted inferences from unreliable data, see J

OHN

A. Z

ERVOPOULOS

, H

OW TO

XAMINE

ENTAL

EALTH

XPERTS

(2013).

Sara McLanahan, Fragile Families and Child Wellbeing Study Fact Sheet (2013),

available at

http://www.fragilefamilies.princeton.edu/documents/FragileFamiliesand

ChildWellbeingStudyFactSheet.pdf.

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Richard A. Warshak

Stemming the Tide of Misinformation

Gaps Between Methodology and Conclusions

In-depth analyses of the McIntosh et al. study, published in the consensus

report and in other papers, reveal multiple problems in the study’s measures,

procedures, data analyses, and data reporting—problems that expose wide gaps

between the study’s methodology and conclusions and between the data reported

and opinions based on the data. Two examples of analytic gaps that undermine the

trustworthiness of the study’s conclusions are found in one sentence from the

synopsis: “Infants under two years of age living with a nonresident parent for only

one or more nights a week were more irritable and were more watchful and wary

of separation from their primary caregiver than those primarily in the care of one

parent.”

The first author subsequently described these negative outcomes as “a

cluster of stress regulation problems.”

Only in the Appendix of the 169-page report can readers discover that the

irritability score for babies with no overnights actually is slightly worse than the

score for babies who spent one or more nights per week with their other parent.

Also, the mean irritability score for the frequent overnighters and the infants in

intact families was identical, and the mean irritability score for all groups was

within the normal range. Since, for these researchers, the irritability scores

generated such concern about “stress regulation” for overnighting infants, they

should have expressed equal concern about infants being raised in intact, two-

parent Australian homes.

Another problem with generalizing from the McIntosh et al. sample—other

than the gap between the composition of the sample and most parents who are

separating—is the study’s tiny sample sizes. The result reported for irritability of

infants with occasional overnights was based on a sample of 14 infants. Only 11

infants saw their fathers on a schedule that would fit standard definitions of

shared parenting. The sample size for the group of 2- to 3-year-olds with frequent

overnights ranged from 5–25 depending on the variable analyzed (e.g., 5 subjects

for a rating of conflict with the child made by teachers and daycare attendants).

An analysis based on five respondents is unlikely to provide meaningful data.

The second analytic gap revealed in the sentence quoted from the synopsis is

the discrepancy between a substandard measure and the conclusion based on the

results from that measure. The synopsis concluded that the overnighting infants

McIntosh et al.,

supra

note 12, at 9.

McIntosh,

Special Considerations, supra

note 9, at 3.

McIntosh et al.,

supra

note 12, at 166.

Although the sample size in Tornello et al.,

supra

note 13, is larger than previous

studies, recently Emery and McIntosh, as coauthors, include in a list of limitations of the

Tornello et al. study that it relied on “small subsample sizes for the attachment indicator.”

Bruce M. Smyth, Jennifer E. McIntosh, Robert E. Emery, & Shelby L. Higgs Howarth,

Shared-Time Parenting: Evaluating the Evidence of Risks and Benefits to Children, in

ARENTING

LAN

VALUATIONS

.),

ARENTING

LAN

VALUATIONS

: A

PPLIED

ESEARCH FOR THE

AMILY

OURT

.) 118, 133 (Leslie Drozd, Michael Saini &

Nancy Olesen eds., 2016).

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Richard A. Warshak

Stemming the Tide of Misinformation

were more “watchful and wary of separation from the primary caregiver.”

The

implication is that overnighting had somehow damaged the security of the babies’

relationships with their mothers. This conclusion, repeatedly cited to discourage

overnights for children younger than two years of age, came from three questions

that the researchers extracted from a standardized scale designed to measure

young children’s cognitive development. The resulting non-standard measure is

unreliable in the sense that it is untrustworthy as an index of what it purports to

measure.

Scientists take pains to ensure that the measures they use are properly

calibrated so that the results can be trusted. Scales need to yield consistent results,

known as the instrument’s

reliability,

and the instrument must measure what it is

intended to measure, known as its

validity.

McIntosh and her team used scales

with insufficient, if any, indications of reliability or validity. For instance, without

adequate calibration a scale that lacks reliability can one day show a readout of

ten pounds for a ten-pound package, and the next day show a readout of fifty

pounds for the same ten-pound package. If the scale lacks validity, the scale can

be off by five pounds even though it might reliably show the same incorrect

weight every time you weigh the package.

A central concern with both the McIntosh et al. and the Tornello et al. studies

is their use of sub-standard measures and reliance on results of those measures to

draw unwarranted inferences. The Warshak consensus report observed that none

of the four significant outcomes reported by McIntosh et al. were derived from

measures that met basic scientific standards,

a point also noted by Nielsen in

greater detail.

McIntosh et al. concluded that a child under the age of two who spends more

than three nights a month with dad is more likely to have “emotional regulation”

problems reflected in the child’s “insistent visual monitoring” of the mother.

measure this, the study asked each mother (only about four percent of the

respondents were fathers) three questions: does your child sometimes or often try

to get your attention, look to see if you are watching her or him at play, and try to

get you to notice other objects?

There was no rating of “insistence.” The authors

made the dubious assumption that because infants when anxious look at their

mothers and try to get her attention, being anxious is the only reason infants look

at their mothers, and that the more infants look at their mothers, the more anxious

McIntosh et al.,

supra

note 12, at 9.

Daubert v. Merrell Dow Pharmaceuticals,

supra

note 14.

Warshak et al.,

supra

note 11, at 55. In addition to the problems with the visual

monitoring scale, the reliability of the irritability scale falls in the “questionable” range;

the persistence measure lacked any reported validity, reliability, or norms; and the scale

of behavior problems with the mother, abridged from a standard measure, had no

measure of reliability or validity for the new instrument.

Linda Nielsen,

Woozles: Their Role in Custody Law Reform, Parenting Plans, and

Family Court,

20 P

SYCHOL

., P

. P

’

. & L. 164 (2014).

Jennifer E. McIntosh, Bruce M. Smyth & Margaret A. Kelaher,

Responding to

Concerns About a Study of Infant Overnight Care Postseparation, with Comments on

Consensus: Reply to Warshak (2014),

21 P

SYCHOL

., P

. P

’

. & L. 111, 116 (2015).

Warshak et al.,

supra

note 11, at 55, FN 1.

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Richard A. Warshak

Stemming the Tide of Misinformation

the infants must be. This error in logic is known as affirming the consequent. No

one, including McIntosh et al., has ever shown that these three questions yield

reliable information—would the answers be the same a week later? Nor have

McIntosh et al. shown that the questions yield valid information having anything

to do with a baby’s emotional health, anxiety, ability to manage stress, or ability

to regulate emotions. In fact, the three questions were extracted from a longer

instrument that has been validated as a measure of how ready the child is to learn

to talk. More frequently looking at the mother and trying to her attention indicates

advanced cognitive development, not impaired emotional regulation as McIntosh

et al. stated.

Similarly, Tornello et al. assessed the child’s attachment to the mother with a

measure that had no established reliability or validity. The Warshak consensus

report and other scholars have questioned the validity of the attachment measure

and the meaning of findings based on the measure because the instrument was

completed by mothers rather than by trained professional raters.

Other

researchers using this same attachment measure have acknowledged that it lacks

objectivity,

which is an important factor in determining the admissibility and

weight of opinions based on this measure.

Tornello et al. acknowledged that their measure of attachment was

questionable, but nevertheless reported that children who at age 1 had frequent

overnights (1 to 5 overnights per week) were more likely than those with some

overnights to be insecurely attached to their mothers at age 3. The press release

issued by the lead investigators’ university, while failing to mention the

M. W

ETHERBY

& B

ARRY

M. P

RIZANT

OMMUNICATION AND

YMBOLIC

EHAVIOR

CALES

EVELOPMENTAL

ROFILE

- P

RELIMINARY

ORMED

DITION

(2001).

See

Warshak et al.,

supra

note 11, at 54.

See also

Irwin N.

Sandler, Lorey A. Wheeler & Sanford L. Braver,

Relations of Parenting Quality,

Interparental Conflict, and Overnights With Mental Health Problems of Children in

Divorcing Families With High Legal Conflict,

27 J. F

. P

SYCHOL

. 915, 921 (2013)

(noting that in their study of high conflict divorces, positive parenting by fathers was

associated with children’s better mental health when the children spent an average of

approximately 12-21 overnights per month with their fathers, but not when the average

number of overnights was 2.61 per month). It is important to note, however, that as with

most research on the impact of divorcing parents’ conflict on child adjustment Sandler et

al. studied older children and not children younger than four years.

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Richard A. Warshak

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Should Parental Conflict Trump Shared Parenting Time?

A policy of automatically restricting children’s time with one of the parents

when a couple is labeled as “high conflict” brings additional drawbacks and

deprives children of the protective buffer of a nurturing relationship with one of

their parents.

This policy sends parents the message that generating or sustaining

conflict can be an effective strategy to override shared custody.

This discourages

civil communication and cooperation, and may reduce children’s time with the

parent who is less angry, who does a better job of shielding the children from

conflict, and who recognizes and supports the children’s need for positive

relationships with both parents.

Any policy that encourages the instigation and

maintenance of conflict between parents by suggesting that such behavior might

be rewarded with more parenting time puts the needs of the children second to the

desires of whichever parent opposes sharing parenting time. Such a policy

contradicts the best-interest standard whose primary purpose is to ensure that the

child’s welfare trumps parental entitlements.

A policy focused on children’s best

interests will decrease the risks of harm to them by discouraging rather than

encouraging inter-parental conflict.

See

Kelly,

supra

note 7, at 14 (citing R

OBERT

E. E

MERY

, T

RUTH

BOUT

HILDREN AND

IVORCE

: D

EALING

ITH

MOTIONS

OU AND

OUR

HILDREN

HRIVE

(2004) “Some authors (e.g., Emery, 2004) have recommended that when the

co-parental relationship is highly conflicted that children’s time with one of the parents

should be restricted as a way of reducing the impact of conflict on the children. Since

mothers are most often the ‘primary’ parent and the fathers the non-resident parents, such

a recommendation is likely to disproportionately reduce father-child time. It also ignores

the reality that mothers are just as often impaired in their functioning and are as hostile as

fathers, but nevertheless are designated the primary residential parent. Relying on more

current research, others have argued that this broad policy recommendation will deny

children adequate time with supportive, competent fathers. The Emery proposal does not

differentiate the type of conflict, consider whether the child is exposed to the conflict,

identify the parent primarily fueling the conflict, and consider the parenting skills and

mental health of each parent. Moreover, such a recommendation ignores the fact that the

majority of parents with high conflict after separation substantially diminish their conflict

in the first and second year after final court orders (citations omitted).”

See

Joan B. Kelly,

Risk and Protective Factors Associated with Child and Adolescent

Adjustment Following Separation and Divorce: Social Science Applications, in

ARENTING

LAN

VALUATIONS

supra

note 41, at 49; Richard A. Warshak,

Parenting

by the Clock: The Best Interests of the Child Standard, Judicial Discretion, and the

American Law Institute’s “Approximation Rule,”

41 U. B

ALT

. L. R

. 83 (2011).

See, e.g.,

Benjamin D. Garber,

Security by Association? Mapping Attachment Theory

Onto Family Law Practice,

50 F

. C

. R

. 467 (2012).

See also

Kelly,

supra

note 7.

Warshak,

supra

note 48, at 97

See, e.g.,

Sanford L. Braver,

The Costs and Pitfalls of Individualizing Decisions and

Incentivizing Conflict: A Comment on AFCC’s Think Tank Report on Shared Parenting,

52 F

. C

. 175, 178 (2014) (stating: “What policy will instead deincentivize

conflict? One, for example, is eliminating the blanket opportunity for one parent to

unilaterally veto shared custody.”).

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Richard A. Warshak

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When considering the impact of parental conflict on the most beneficial

parenting plans for children, it is important to recognize the heterogeneity of the

dynamics of inter-parental conflict.

The label

high conflict couple

implies that

both parents actively engage in conflict. Although this is true in some cases, in

other cases the label is a misnomer because one parent may be a victim of the

other parent’s rage or attempts to marginalize the parent’s role in raising the

child.

In some cases the amount, intensity, and type of conflict resembles the

level and type of disagreements over child-rearing decisions that occur normally

between married or cohabiting parents who have different opinions about what is

best for the child.

Recommendations to Reduce Children’s Exposure to Parental

Conflict

Because of the consistency of findings that children are more likely to suffer

worse outcomes when their parents use them as pawns or when they consistently

witness, their parents’ frequent, intense, and ongoing conflict,

the Warshak

consensus report recommended the following:

•

When feasible, parents should be encouraged to create parenting

plans through a collaborative, nonadversarial process, that

increases the likelihood that both parents will be satisfied with the

plan and can give it relatively unambivalent support.

•

Interventions such as mediation and parenting coordination can

help parents better manage conflict and reduce its negative impact

on children.

•

When considering the implications of conflict for custody

dispositions, courts, operating under the best-interest standard, can

hear evidence that goes beyond identifying the presence of conflict

and sheds light on the dynamics of the conflict, the contributions

of each party to it, and the quality of parenting.

See

Joan B. Kelly,

Parents with Enduring Child Disputes: Multiple Pathways to

Enduring Disputes,

9 J. F

. S

TUD

. 37 (2003); Kelly,

supra

note 7.

See, e.g.,

Michael E. Friedman,

The So-Called High-Conflict Couple: A Closer Look,

32 A

. J. F

. T

HERAPY

107 (2004); Kelly (2003)

supra

note 52; Kelly,

supra

note 48;

Joan B. Kelly & Robert E. Emery,

Children’s Adjustment Following Divorce: Risk and

Resilience Perspectives,

52 F

. C

. R

. 352, 353 (2003) (noting: “[I]t is not

uncommon to find one enraged or defiant parent and a second parent who no longer

harbors anger, has emotionally disengaged, and attempts to avoid or mute conflict that

involves the child.”); Warshak,

supra

note 36, at 70.

See generally

ETHERINGTON

& K

ELLY

supra

note 1); Kelly,

supra

note 48, at 59.

See

also

Richard A. Warshak,

Ten Parental Alienation Fallacies That Compromise Decisions

in Court and in Therapy,

46 P

ROF

. P

SYCHOL

.: R

. & P

RAC

. 235, 241-243 (2015);

Richard A. Warshak,

Parental Alienation: Overview, Management, Intervention, and

Practice Tips,

28 J. A

. A

CAD

. M

ATRIM

. L

. 181 (2015).

Warshak et al.,

supra

note 11, at 57.

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Richard A. Warshak

Stemming the Tide of Misinformation

•

Where tension and conflict accompany transfers of children from

one home to the other, rather than reduce children’s time with one

parent as a response to concerns about parental conflict,

consideration should be given to conducting transfers at neutral

sites where both parents are not present at the same time.

For

instance, the children can be dropped off at daycare by one parent

and picked up by the other. This protects children from exposure to

parental conflict.

•

To the extent that conflict is generated by a father who opposes the

mother’s efforts to marginalize his participation in raising the

young child, efforts should be made to educate the mother about

the benefits to children of parenting plans that give more

opportunities for the development and strengthening of father-

child relationships and that keep fathers more involved.

•

Both parents should be encouraged to understand the emotional

difficulty that can attend being apart from a young child for

extended time periods, difficulty that is multiplied when a parent’s

employment keeps him or her away from the child for most of the

weekdays. Parents should be encouraged to provide regular

feedback to each other about the young child’s routines, behavior,

and health, and to the extent possible assuage each other’s

concerns about the child’s development when in the care of the

other parent.

INTERNATIONAL EXPERT CONSENSUS RECOMMENDATIONS

The endorsers of the parenting plans consensus report, all accomplished

researchers or practitioners, agree that the current state of the scientific literature

supports the following conclusions and recommendations. This statement should

provide strong direction for policy guidelines and decision-making.

1. Just as we encourage parents in intact families to share care of their

children, we believe that the social science evidence on the

development of healthy parent-child relationships, and the long-

term benefits of healthy parent-child relationships, supports the

view that shared parenting should be the norm for parenting plans

for children of all ages, including very young children. We

recognize that some parents and situations are unsuitable for

shared parenting, such as those mentioned in point #7 below.

2. Young children’s interests benefit when two adequate parents

follow a parenting plan that provides their children with balanced

Mary Main, Erik Hesse & Siegfried Hesse,

Attachment Theory and Research:

Overview with Suggested Applications to Child Custody,

49 F

. C

. R

. 426, 447

(2011).

Warshak et al.,

supra

note 11, at 58-60.

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and meaningful contact with each parent while avoiding a template

that calls for a specific division of time imposed on all families.

3. In general the results of the studies reviewed in this document are

favorable to parenting plans that more evenly balance young

children’s time between two homes. Child developmental theory

and data show that babies normally form attachments to both

parents and that a parent’s absence for long periods of time

jeopardizes the security of these attachments. Evidence regarding

the amount of parenting time in intact families and regarding the

impact of daycare demonstrates that spending half time with

infants and toddlers is more than sufficient to support children’s

needs. Thus, to maximize children’s chances of having good and

secure relationships with each parent, we encourage both parents to

maximize the time they spend with their children. Parents have no

reason to worry if they share parenting time up to 50/50 when this

is compatible with the logistics of each parent’s schedule.

4. Research on children’s overnights with fathers favors allowing

children under four to be cared for at night by each parent rather

than spending every night in the same home. We find the

theoretical and practical considerations favoring overnights for

most young children to be more compelling than concerns that

overnights might jeopardize children’s development. Practical

considerations are relevant to consider when tailoring a parenting

plan for young children to the circumstances of the parents.

Overnights create potential benefits related to the logistics

of sharing parenting time. Parents of young children are more

likely than parents of older children to be at an early stage in their

career or employment at which they have less flexibility and

control over their work schedules. Parenting schedules that offer

the father and child 2-hr blocks of time together, two or three times

per week, can unduly stress their contacts. Overnights help to

reduce the tension associated with rushing to return the child, and

thus potentially improve the quality and satisfaction of the contact

both for the parent and child. Overnights allow the child to settle in

to the father’s home, which would be more familiar to the child

who regularly spends the night in the home compared with one

who has only one-hour segments in the home (allowing for

transportation and preparation for the return trip). Spending the

night allows the father to participate in a wider range of bonding

activities, such as engaging in bedtime rituals and comforting the

child in the event of nighttime awakenings. An additional

advantage of overnights is that in the morning the father can return

the child to the daycare; this avoids exposing the child to tensions

associated with the parents’ direct contact with each other.

Nonetheless, because of the relatively few studies currently

available, the limitations of these studies, and the predominance of

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Richard A. Warshak

Stemming the Tide of Misinformation

results that indicate no direct benefit or drawback for overnights

per se outside the context of other factors, we stop short of

concluding that the current state of evidence supports a blanket

policy or legal presumption regarding overnights. Because of the

well-documented vulnerability of father-child relationships among

never-married and divorced parents, and the studies that identify

overnights as a protective factor associated with increased father

commitment to child rearing and reduced incidence of father drop-

out, and because no study demonstrates any net risk of overnights,

decision makers should recognize that depriving young children of

overnights with their fathers could compromise the quality of their

developing relationship.

5. Parenting plans that provide children with contact no more than six

days per month with a parent, and require the children to wait more

than a week between contacts, tax the parent-child relationships.

This type of limited access schedule risks compromising the

foundation of the parent-child bond. It deprives children of the

type of relationship and contact that most children want with both

parents. The research supports the growing trend of statutory law

and case law that encourages maximizing children’s time with both

parents. This may be even more important for young children in

order to lay a strong foundation for their relationships with their

fathers and to foster security in those relationships.

6. There is no evidence to support postponing the introduction of

regular and frequent involvement, including overnights, of both

parents with their babies and toddlers. Maintaining children’s

attachment relationships with each parent is an important

consideration when developing parenting plans. The likelihood of

maintaining these relationships is maximized by reducing the

lengths of separations between children and each parent and by

providing adequate parenting time for each parent. Such

arrangements allow each parent to learn about the child’s

individual needs and to hone parenting skills most appropriate for

each developmental period. The optimal frequency and duration of

children’s time with each parent will differ among children,

depending on several factors such as their age and their parents’

circumstances, motivations, and abilities to care for the children.

Other important considerations include children’s unique

relationship histories with each parent and their experience of each

parent’s care and involvement. In each case where it is desirable to

foster the parent-child relationship, the parenting plan needs to be

sensitive to the child’s needs, titrating the frequency, duration, and

structure of contact.

7. Our recommendations apply in normal circumstances, for most

children with most parents. The fact that some parents are

negligent, abusive, or grossly deficient in their parenting—parents

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Stemming the Tide of Misinformation

whose children would need protection from them even in intact

families—should not be used to deprive the majority of children

who were being raised by two loving parents from continuing to

have that care after their parents separate.

AFTERMATH OF THE CONSENSUS REPORT

The list of endorsers and their stature and accomplishments reflect the field’s

general acceptance of the consensus report’s findings as rooted in settled science

from more than four decades of research directly relevant to this topic, including

seminal studies by many of the endorsers. This research “provides a growing and

sophisticated fund of knowledge about the needs of young children, the

circumstances that best promote their optimal development, and the individual

differences among children regarding their adaptability to different circumstances,

stress, and change.”

The endorsements reflect agreement that the report’s

conclusions and recommendations are well grounded, generally accepted in the

field, and expressed in measured language that is useful to decision makers.

Recent Studies

After the Warshak consensus report was published, two new studies lent

additional weight to the report’s conclusions. Reanalyzing the data set used by

Tornello et al., Sokol examined the correlation between the absolute number of

overnights with father and the incidence of insecure attachments to mother. In her

preliminary findings, Sokol found no correlation and concluded that overnights

with father do not harm the mother-child relationship.

Fabricius reported long-term benefits to college students who, in the first three

years of life, spent overnights with their fathers after their parents separated.

These teenage and young adult children felt more important to their fathers than

Warshak et al.,

supra

note 11, at 46.

Karina Sokol, Short-term Correlates of Overnight Parenting Time for Infants: The

Current Literature and Re-analyses. Address at the Association of Family and

Conciliation Courts Annual Conference (May 31, 2014). Sokol’s study was presented at a

professional conference and the results have not yet appeared in a peer-reviewed journal

article. In using the absolute number of overnights, rather than categories of overnight

frequency, Sokol avoided potential problems in Tornello et al.’s methodology which

grouped together infants who spent one overnight per week with their fathers with those

who lived primarily with their fathers (up to five nights per week). Tornello’s group

analyses apparently obscured differences in mother-custody versus father-custody

families that affect the results. Note that the composition of the sample and the problems

with the attachment measure reported by Tornello et al. (discussed

supra

text

accompanying notes 17, 29, and 34) equally limit the conclusions that can be drawn from

Sokol’s study and its relevance to most separating parents.

William Fabricius, New Findings on Relocation and Infant Overnights. Address at the

Association of Family and Conciliation Courts–Texas Chapter Annual Conference (Jan.

23, 2015). Although Fabricius presented this study at two professional conferences,

because data is still being collected, the results should be considered preliminary until

they appear in a peer-reviewed journal article.

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Stemming the Tide of Misinformation

did those who had been deprived of overnights early in their lives. They had

better relationships with their fathers at no cost to the quality of their relationships

with their mothers. On the other hand, having fewer overnights with fathers

during infancy was associated with more long-term harm to the father-child

relationship. Also, there were no indications of any long-term stress-related health

problems related to overnight parenting time for infants with their fathers.

The

study concluded: “[I]nfant behaviors that have caused the concern about overnight

parenting time are either temporary, or they do not signal the long-term effects

that were feared.”

And, “Of much greater concern is the substantial detriment to

the long-term father-child relationship associated with lack of overnight parenting

time with fathers. . . .”

Overall the study concluded, “We see long-term risks to

the father-child relationship in the absence of overnight parenting time during the

first 3 years, but only benefits to both parents with the presence of overnight

parenting time.”

And, “Maximizing parenting time protects children from harm

to the father-child relationship, from harm to the mother-child relationship, and

from harm due to parent conflict.”

Reactions to the Consensus Report

In addition to the 110 researchers and practitioners behind the consensus

report, prominent social scientists, such as Joan Kelly, cited the report favorably

in their presentations and literature reviews.

The paper has been translated into

at least eighteen languages and has informed legislative deliberations throughout

the U.S. and parliamentary deliberations in several countries including the United

Kingdom, Canada, Israel, Finland, Romania, Croatia, and Sweden. Two years

after its publication the consensus report continues to be one of the most

downloaded papers from the journal’s website.

Michael Lamb summarized his understanding of the relevant literature in

statements fully consistent with the conclusions reached by Warshak and the

Responding to concerns raised by results reported by McIntosh et al.,

supra

note 12

and by Tornello et al.,

supra

note 13 Fabricius states,

supra

note 60, at 50, “The infant

wheezing, and early communication bids to the mother [3-question visual monitoring

scale], and self-reports by the mother of her infants’ attachment behaviors toward her are

apparently not deserving of too much concern.”

Fabricius,

supra

note 60, at 50.

Id.,

at 50.

Id.,

at 52.

Id.,

at 58.

Joan B. Kelly,

supra

note 7, at 11 (referring to the consensus report’s “in-depth

analysis of 16 shared parenting studies.”) Dr. Kelly, a prominent authority on divorce,

also coauthored an earlier article on overnights with McIntosh. It is noteworthy that

Kelly’s analysis of the literature,

supra,

at 9, agreed with Warshak et al.,

supra

note 11,

on the important issue of whether young children develop an attachment hierarchy in

which mothers are predominant: “Consistent with other recent studies, there was no

support for the primacy of the mother as an attachment figure in predicting future

outcomes. Nor was there support for the belief that infants and toddlers have a gender

bias in attachment formation or develop an attachment hierarchy in which mothers are

consistently preferred.”

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Stemming the Tide of Misinformation

endorsers of the consensus report: “When both parents have established

significant attachments and both have been actively involved in the child’s care,

research suggests that overnight visits will consolidate attachments and child

adjustment, not work against them.”

“Children whose parents were both highly

involved before separation benefit from continued involvement with both parents.

That involvement should include overnight contact with nonresident parents when

there is a preseparation history of involvement.”

It was anticipated that some colleagues would disagree with the consensus

report opinions and recommendations. But in the two years since its publication,

no article, including those by McIntosh et al., has explicitly identified any errors

in the report or disputed any of its conclusions and recommendations. Confronted

with the critiques of their studies, one might expect researchers either to show

where the consensus report and other scholars’ critiques are mistaken or to modify

their previous interpretations of their data and communicate their amended

conclusions to colleagues and the general public.

McIntosh et al. have not yet acknowledged or addressed concerns about three

of the four measures in their study. But after the consensus report was published,

they conceded in one article that their 3-item visual monitoring scale has

“relatively low” reliability and is a “weak link” in their study.

Otherwise, Smyth

and McIntosh have ignored the critiques that their measures were untrustworthy.

To date, McIntosh et al. have not acknowledged that: 1) the results that raised

their concern about overnights and young children’s ability to regulate stress rest

on a flimsy foundation and do not stand up to scrutiny, 2) the substandard

measures used in their study do not support trustworthy conclusions, and 3) the

infants with frequent overnights looked no worse than those with no overnights.

Instead, McIntosh et al. have continued to report that the infants in their study

with weekly overnights had “higher levels of emotionally dysregulated

behaviors”

and showed “a greater cluster of stress regulation problems

compared with infants with fewer overnight stays,” and that “regardless of the

context of their parents’ separation, more frequent overnight stays might be more

challenging for emotional regulation processes in young children under 4 years of

age than for children aged 4 years and over.”

These continued assertions of

McIntosh et al. are the equivalent of reporting an object’s weight on a broken

scale whose readout cannot be trusted, while concealing the fact that the scale is

faulty.

In response to the consensus report and other critiques, McIntosh et al. have

tried to bolster confidence in the ”veracity and reliability” of their study’s

findings, by repeatedly claiming that other studies, such as the one by Tornello et

al., replicated their study.

This is incorrect. Tornello et al. used different

Lamb,

supra

note 33, at 180.

Id.,

at 192.

McIntosh et al.,

supra

note 26, at 116.

Smyth et al.,

supra

note 21,at 153.

McIntosh et al.,

supra

note 26, at 113.

McIntosh et al.,

supra

note 26, at 113 (“One standard approach to assessing the

veracity and reliability of findings is in their replication. Recently, Tornello and

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Stemming the Tide of Misinformation

measures with a different population in their study. Further, as previously noted,

Sokol’s preliminary analysis of the data in Tornello et al. found no correlation

between overnights and insecure attachments in infants.

However, McIntosh et

al., in a significant concession, noted that their findings “do not substantiate

cautions against

any

overnight care in healthy family circumstances.”

This

acknowledgment is another sign that the consensus report is achieving its primary

goal of stemming the tide of misinformation.

Pruett (who coauthored a 2014 article with McIntosh on overnights) et al.

issued a statement very similar to that of McIntosh and her coauthors. Pruett et al.

(2016) wrote that “results from these studies do not substantiate cautions against

any

overnight care or overnight care for

all

children during the first 3 years.”

They added, “Overall it is clear that these studies do not tell us enough to make

policy recommendations against overnights; they leave us only with cautions

about what to study in order to know more about how these types of transitions

affect children in different situations differently.”

Despite these general statements, Pruett and McIntosh, writing with Kelly in

2014, nonetheless concluded that sufficient basis exists for certain cautions about

overnights, noting that “the small group of relevant studies to date substantiates

caution about high frequency overnight time schedules in the 0-3 year period,

particularly when the child’s security with a parent is unformed,

or parents

cannot agree on how to share care of the child.”

But at the outset of their article,

under the heading “Key Points for the Family Court Community,” the authors

narrow the criteria for cautions against high frequency overnights:

Cautions against overnight care during the first three years are not

supported. The limited available research substantiates some

caution about higher frequency overnight schedules with young

children, particularly when the child’s relationship with a second

colleagues conducted an investigation similar to ours, using a large U.S. sample of

children. They replicated many of the Australian findings. Specifically, they found: . . .

(b) ‘frequent infant overnights were significantly related to attachment insecurity

assessed at age 3’. . . ” (citations omitted)). Yet McIntosh et al.,

id.,

at 112, state clearly

that their study did not measure attachment (“Our study, however, was not a study of

attachment.” And, “We did not, and could not examine attachment, simply because

attachment data were not part of the longitudinal dataset we employed, namely the

Longitudinal Study of Australian Children.”)

See also

Smyth et al.,

supra

note 21, at 153

(referring to findings from McIntosh et al.,

supra

note 12, and Tornello et al.,

supra

note

13, as “replicated findings for infants” thus repeating the error of identifying outcomes

from the two studies as “replicated findings” when in fact they are not.).

Sokol,

supra

note 59.

McIntosh et al.,

supra

note 26, at 118.

Pruett et al.,

supra

note 29, at 97.

Marsha Kline Pruett, Jennifer E. McIntosh, and Joan B. Kelly,

Parental Separation and

Overnight Care of Young Children, Part I: Consensus Through Theoretical and

Empirical Integration,

52 F

. C

. R

. 240, 250 (2014).

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Richard A. Warshak

Stemming the Tide of Misinformation

parent has not been established and/or parents are in frequent

conflict

to which the child is exposed.

The last six words of the above statement make a significant difference. In

practice, a blanket policy that cautions against overnights for a young child whose

parents do not agree on custody discourages courts from ordering shared

parenting and overnights in litigated cases. By contrast, a policy that discourages

overnights only if the child is exposed to frequent conflict, means that courts need

to consider the impact of conflict on the child, a practice recommended by the

Warshak consensus report.

Because of the significant difference in the two

statements by Pruett, McIntosh, and Kelly about conflict and overnights, it is not

clear which position the authors intended to guide “the family court community.”

Perhaps the difference between the two recommendations in the same article

reflects differences among the three coauthors. In her previous and subsequent

work, Kelly argued against reducing the child’s time with the father or reducing

the father’s caregiving for the child at bedtime, when the child awakes during the

night, and in the morning. Instead Kelly promoted other solutions that reduce the

child’s exposure to conflict.

By contrast, McIntosh offers on her website a chart and profile (CODIT) to

guide parents and professionals making overnight decisions.

Although not

intended for use as a diagnostic instrument or as the sole basis for decisions this

document asserts, “Even when all parenting conditions are met, high numbers of

overnights (more than weekly) are not generally indicated for young infants 0-18

months subject to family law disputes.”

This guideline sets up a rebuttable

presumption against more than one overnight per week for children younger than

18 months even with parents who consistently and sensitively meet the children’s

needs.

Id.

at 240, emphasis added.

Warshak et al.,

supra

note 11, at 57.

See, e.g.,

Kelly,

supra

note 7, at 15 (stating: “Rather than restricting appropriate father-

child relationships, other interventions and remedies designed to reduce high conflict

should be universally available and provided soon after separation.”). For a similar view

see Nicole E. Mahrer, Irwin N. Sandler, Sharlene A. Wolchik, Emily B. Winslow, John

A. Moran, & David Weinstock,

How Do Parenting Time and Interparental Conflict

Affect the Relations of Quality of Parenting and Child Well-Being Following Divorce?, in

ARENTING

LAN

VALUATIONS

.),

supra

note 21, at 63, 70 (2016) who, based on

their understanding of the literature and on Sandler, Wheeler, & Braver’s study,

supra

note 46, state that “although high quality parenting does not negate the pathological

effects of interparental conflict on children’s well-being, high quality parenting by either

parent can be a protective factor when parents have moderate or greater levels of

contact.” Mahrer et al. conclude,

supra

at 63, “Recommendations should not decrement

parenting time of parents with good quality relationships or the potential for good quality

relationships with their children because of a high level of interpersonal conflict between

the parents.”

This tool is called “Charting Overnight Decisions for Infants and Toddlers (CODIT)”

and is

available at

http://childrenbeyonddispute.com/resources-for-parents/.

Id.,

at 4.

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Stemming the Tide of Misinformation

Although lacking a scientific foundation, this presumption in practice would

give most mothers the power to deprive children of more than one overnight a

week with their fathers for the first one-and-a-half years. To frustrate the father’s

desire to have a larger role in bedtime rituals and morning routines the mother

need only register an objection, thus creating a custody dispute. The mother’s

preference prevails even if her motives are vindictive, even if her objection is

capricious, and even if the father demonstrates superior parenting.

The CODIT includes subjective rating scales with no known reliability or

validity. For instance, child adjustment is rated using criteria such as “excessive

clinging on separation,” “frequent crying,” “aggressive behavior,” and “low

persistence in play & learning” with no anchors to distinguish between troubling

behavior within normal limits and atypical behavior. Including such factors in a

tool to guide overnight decisions reflects an assumption that troubling behaviors

in an infant or toddler that persist more than two weeks are associated with—and

can be eliminated by—restricting one parent’s overnight contact with the child.

The CODIT includes multiple factors that allow gatekeeping parents to use this

tool to restrict their children’s overnights with the other parent.

Two years after their coauthored article Pruett came out in favor of a position

more in line with her previous coauthor Kelly. Writing without McIntosh, but

with five other coauthors, Pruett significantly amended her statement about

parental conflict:

The small group of relevant studies to date substantiates caution

about

high-frequency

overnight time schedules in the 0– to 3–year

period when the child’s relationship with a parent is not established

(e.g., parents never lived together and nonresidential parent spent

little to no time with the baby), or when parents cannot agree on

how to share care of the child

and their conflict interferes with the

child’s care.

(second emphasis added).

These six authors are among the scholars who agree with the consensus report’s

conclusion that the mere presence of conflict between parents over how to share

care of their child (i.e., a dispute over custody) is not a sufficient reason to be

cautious about overnights. Instead, decision makers should attend to the nexus

between the expressions of conflict and their impact on the child.

Misunderstandings of the Consensus Report

Pruett et al. (2016) hold the same position as the Warshak consensus report

about the importance of the coparenting relationship when considering decisions

about shared parenting. Yet Pruett et al. left the appearance of disagreement when

they mistakenly reported:

Warshak (2014) argues that children benefit from a more evenly

balanced amount of time between parents, and that this should be

Pruett et al.,

supra

note 29, at 97

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Stemming the Tide of Misinformation

protected regardless of the co-parenting dynamic, since reducing

one parent’s time in the face of conflict favors the parent with

more access as that parent can perpetuate conflict as an excuse not

to share parenting. This may be true, but it ignores the needs of the

infant or toddler from a child-centric perspective, if the shared

parenting results in the child’s consistent exposure to conflict.

The consensus report offered no such generalization or rationale for shared

parenting. And as explained earlier, because a blanket policy prioritizes parents’

desires over children’s needs, such a policy of reducing a child’s time with a

parent when the parents are in conflict is hardly “child-centric.”

A blanket

policy provides an incentive to a parent to escalate and involve children in

conflict if the parent believes that initiating and sustaining conflict is a path to

winning sole physical custody.

In many cases there are better ways to protect a

child from consistent exposure to conflict than to disproportionately deprive the

child of important time with a parent.

Contrary to Pruett et al.’s (2016) assertion, the consensus report explicitly

identified coparenting dynamics as one among several factors to consider in

reaching a custody decision, a position that Warshak has consistently held in his

publications during the past twenty-five years.

Naturally, shared parenting and

overnighting are not for all families. On this point the consensus report is clear:

Some circumstances depart significantly from the norm and do not

lend themselves to the same general recommendations that apply

to the majority of parenting plan decisions. These circumstances

include a history of intimate partner violence, a history or credible

risk of neglect, physical abuse, sexual abuse, or psychological

abuse toward a child, manifestations of restrictive gatekeeping

such as persistent and unwarranted interference with parenting

Pruett et al.,

supra

note 29, at 96.

Supra

text accompanying notes 46-51.

Braver,

supra

note 51, at 178.

See, e.g.,

Kelly,

supra

note 7, at 15 (stating: “Rather than restricting appropriate father-

child relationships, other interventions and remedies designed to reduce high conflict

should be universally available and provided soon after separation.”).

Also see supra

text

accompanying note 55.

See, e.g.,

Warshak,

supra

note 48 (supporting a multi-factored best-interest standard).

See also

Braver,

supra

note 51, at 178 (noting that such a policy would decrease

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Stemming the Tide of Misinformation

Instead of a blanket policy that denies children the potential benefits of shared

parenting, the consensus report offers recommendations to protect children from

consistent exposure to conflict.

These recommendations are applicable in

situations where parents share overnights and in situations where children live

predominantly with one parent and see the other parent less frequently (e.g., a

schedule of every other weekend and mid-week contacts with or without

overnights).

Pruett et al. (2016) leave the impression that they dissent from the consensus

report on the important role of the coparenting relationship and the importance of

the child’s prior relationship with a parent when in fact their position reiterates the

consensus view. Indeed, Pruett et al.’s seven “points of consensus” echo the

conclusions of the consensus report published two years earlier.

MEANING AND VALUE

ENDORSEMENTS

THE

CONSENSUS

REPORT

McIntosh et al. tried to diminish and distract from the meaning and value of

the 110 endorsements of the consensus report. McIntosh et al. asserted that the

accomplished scholars and practitioners who endorsed the consensus report put

their reputations and integrity on the line by signing a document based solely on

“sentiment” and not science, and that the endorsers did not necessarily agree with

the evidence for the conclusions and recommendations that they endorsed.

This

is incorrect.

The endorsers received and read the whole paper. As would be

incentive to promote conflict and instead “would make it worthwhile for the angry parent

to bury the hatchet.”).

See supra

text accompanying note 55.

Pruett et al.,

supra

note 29, at 97.

McIntosh et al.,

supra

note 26, at 111 and 117.

See supra

text accompanying notes 55 and 57, for the full text of the consensus report’s

conclusions and recommendations. Note that these consensus opinions include multiple

references to the evidence discussed in the report and to the accuracy and validity of the

literature review that preceded the section titled “Conclusions and Recommendations.”

Following are some excerpts of such references in the statement endorsed by the 110

researchers and practitioners (all emphases added to highlight references to the research

and to the evidence): “Research allays such concerns. . . .

The research reviewed

earlier

on parenting time in intact families shows . . . . Combined with the daycare

studies,

this research should put to rest the idea that children are inevitably harmed

by extended separations from their mothers.

. . .

The results of the 16 studies

relevant to parenting plans generally support rather than oppose shared parenting and

overnights for young children. But predominantly

the studies show little direct impact

of overnights in the short run.

The three studies that often are cited as evidence for the

harmful effects of greater father involvement with young children actually found mixed

or ambiguous results perhaps because the measures used were inadequate by scientific

standards. . . . The

research on children being raised by parents who live apart from

each other,

in the larger context of scientific knowledge about the factors that foster

optimal child development and the formation and maintenance of healthy parent–child

relationships, offers guidelines that should inform decision makers and those who assist

them, such as parents, mediators, child custody experts, lawyers, and judges.” (p. 58)

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Stemming the Tide of Misinformation

expected, none would have endorsed the paper if they agreed with the conclusions

but disagreed with the evidence that supported the conclusions. In fact, the

conclusions referred explicitly and extensively to the evidence reviewed and

analyzed in the preceding sections. Rather than enumerate the significant

contributions of the endorsers to our base of scientific knowledge, the reader is

encouraged to note the names of the scholars and their credentials listed at the end

of the consensus report. The qualifications of the endorsers to vet the literature

reviews and analyses and to judge the conclusions and recommendations that flow

from those analyses are beyond dispute.

Some have questioned the value of publishing a paper with scientists’

endorsements. But such papers are not unprecedented. An example is the 1997

article co-signed by eighteen experts that clarified implications of social science

evidence for custody arrangements.

Similarly, the Warshak consensus report

clarifies the social science relevant to parenting plans for young children.

Having the paper reviewed by the endorsers of the Warshak report brought

two advantages. The first was the benefit of feedback and vetting from this group

on the consensus report’s analysis of the bodies of literature on attachment,

daycare, parenting plans, and divorce. The endorsers included prominent

international authorities in attachment, principal investigators for the celebrated

NICHD Study of Early Child Care and Youth Development, and leading

researchers who have studied the impact of divorce since the mid-1970s. The

second advantage was that the statures of the signatories—with their outstanding

And, “To the extent that policy and custody decisions seek to express scientific

knowledge about child development,

the analyses in this article should receive

significant weight by legislators and decision makers.

. . . . [W]e believe that the

social

science evidence

on the development of healthy parent–child relationships, and the long-

term benefits of healthy parent–child relationships, supports the view that shared

parenting should be the norm for parenting plans for children of all ages, including very

young children. . . . In general

the results of the studies reviewed in this document

are

favorable to parenting plans that more evenly balance young children’s time between two

homes.

Child developmental theory and data

show that babies normally form

attachments to both parents and that a parent’s absence for long periods of time

jeopardizes the security of these attachments.

Evidence

regarding the amount of

parenting time in intact families and regarding the impact of daycare demonstrates that

spending half time with infants and toddlers is more than sufficient to support children’s

needs. Thus, to maximize children’s chances of having a good and secure relationship

with each parent, we encourage both parents to maximize the time they spend with their

children. . . .

Research on children’s overnights

with fathers favors allowing children

under four to be cared for at night by each parent rather than spending every night in the

same home.” (p. 59) And, “The

research supports

the growing trend of statutory law

and case law that encourages maximizing children’s time with both parents. This may be

even more important for young children in order to lay a strong foundation for their

relationships with their fathers and to foster security in those relationships . . . .There

no evidence to support postponing the introduction of regular and frequent

involvement, including overnights,

of both parents with their babies and toddlers. . . .

Rather it is our conviction that

our analyses meet the test of scientific validity and

reliability, and thus are trustworthy in the legal sphere.

(p. 60).

Lamb et al.,

supra

note 2.

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Stemming the Tide of Misinformation

careers as social scientists—brings attention to decision makers for the report’s

conclusions and recommendations.

In sum, the consensus report does not maintain that its conclusions are

scientific merely because 110 well-qualified researchers and practitioners endorse

the conclusions—science is not settled at the ballot box. Rather, the consensus

report reflects that the endorsers, based on their understanding of the literature

and on their professional experiences, accept the report’s research-based

conclusions.

CONCLUSION

Warshak, with the review and endorsement of 110 researchers and

practitioners, analyzed more than four decades of research and issued a peer-

reviewed consensus report on parenting plans for young children.

As intended,

the report stemmed a tide of misinformation that was threatening to resurrect

long-discarded myths about child development and enshrine them in professional

practice and family law. The list of endorsers and their professional

accomplishments reflect the widespread acceptance of the consensus report’s

findings that favor shared parenting and overnighting for young children under

normal circumstances. Two years after its publication, the conclusions and

recommendations of the Warshak consensus report remain supported by science.

Warshak et al.,

supra

note 11.