I recently appeared before a Bais Din to provide expert testimony as a psychologist in a child custody dispute. As is regrettably far too common today, the parties in dispute were a young couple who had divorced after a short marriage. They had a one-year-old son. The father was pressing to equalize the time that the child spent between the parents, including a demand for multiple overnights each week. 

The mother had a number of concerns, including the father’s unwillingness to communicate with her about the child and the effect of overnights away from the mother, the child’s primary caretaker. In regard to communication, the mother would ask the father after visits with him what the child ate, if he napped, etc. The father would respond that he did not want to be micromanaged and that she needed to trust him that he was taking proper care of the child. Additionally, the mother had observed some concerning behaviors on the part of the child after returning to her from overnights with the father, including inconsolable crying, avoiding eye contact with the mother, and biting the mother during nursing.

These behaviors were indeed concerning, and they were not at all surprising to me. Based on over 50 years of research on child-parent attachment, it is now well known that very young children (younger than aged 2 or 3 years) are particularly sensitive to the effects of separation from a primary caretaker. Such separations often result in shifts in mood and behavior that disrupt the normal bond and rapport between the primary caretaker (usually the mother) and the child. After such a separation, the child seems somehow unable to turn to the primary caretaker in the way the child did in the past to find the soothing that the child needs (this condition is known as “insecure attachment”). Such children often exhibit high distress; desperate, inconsolable crying; and detachment and aggression toward the primary caretaker. The more frequent the separations from the primary caretaker, the more pronounced this effect often is. 

In my testimony before the Bais Din, I described the vital importance of consistent contact between a very young child and his or her primary caretaker. Children with insecure attachment are likely to develop fewer social skills and have lower levels of communication skills. They are at increased risk for developing an anxiety disorder. These disruptions in function can have lifelong effects on feelings of well-being, confidence, and relationships. I also testified that it is very important and healthy for a child to have a strong bond with both parents, since such children are much more likely to develop normally and as they age, make healthy, productive life choices. I pointed out that a baby or toddler has a particularly elevated need for the primary caretaker at bedtime. Sleep itself is a mini-separation from the parents, and the child needs the expertise of the primary caretaker to make sure all of his or her needs are met before bed. The child also needs the special touch of that parent to soothe him or her enough to accept the separation in the dark that sleep involves. 

Given that the son was not tolerating separations from his mother well, I recommended 2- to 3-hour visits with the father, two or more times per week. I did this to place a limit on the length of any separation from the mother. As for overnights with the father, I recommended that there be none until the child was aged 2 years, and then, it should be very slowly phased in, with much room for flexibility to allow for changes in plans, depending on how well the child was tolerating the new schedule. 

At this same Din Torah, an additional psychologist was present, a prominent and well-known individual in the frum world. After I expressed my viewpoint, the Bais Din asked for his opinion. He responded that he certainly has respect for attachment theory but that the  understanding of the effects of joint parent custody has radically changed in the field of psychology over the past 10 years or so. He said that research is now indicating that children do as well as or even better with joint custody than they do with one parent having primary custody and the other parent having visits with the child. 

Was he right? Does the research indeed show that children do well with joint parenting, even infants and young toddlers (from birth to aged 24 months)? First, let’s consider the general findings about joint custody and its effects on children’s well-being. There are a few dozen studies in existence on this topic. It is correct that, in general, the research does indicate that children do equally fine or in some studies, better than those in sole custody with visitation. However, the quality of the studies is quite variable, and those studies that did find that children did better with joint custody only reported a very slightly higher level of function as compared with sole custody arrangements. One of the theories of why joint custody could be quite beneficial to children is that it tends to keep the father more involved in the child’s life, and it is well known in the psychological literature that having a father present confers both economic and psychological advantages that result in children having better self-control, making more pro-social choices, and generally functioning better in the world. 

One of the major weaknesses in child custody research is that it is almost entirely based on correlations of data observed at one point in time rather than tracking changes in families and the development of children over time. Although these studies report satisfactory correlations between joint custody schedules and child adjustment, we cannot conclude from the research that it was the child custody schedules that caused the child’s present adjustment. It is just as possible that certain types of families are more likely to be involved in equal custody arrangements and that this could explain the results that are found. For example, parents who have a more amicable divorce may be more likely to agree to joint custody, and these parents’ good behavior might help the child to be better adjusted. If this is the case, then we might falsely conclude that it was equal custody that contributed to the child’s adjustment rather than the alternative explanation that it was the parents’ amicable and peaceful divorce that resulted in both joint custody and a happy child. A similar situation may occur for a child who has serious adjustment problems before the parents’ divorce. Such a child may be harder to handle in transitions between homes, which could cause such parents to be less inclined to joint custody, again causing the false impression that joint custody resulted in a more emotionally balanced child, rather than vice versa.

These examples show how complex this area is and how easy it is to misinterpret the data. Clearly much more research needs to be done, especially research examining the effects of custody arrangements over time.

Keeping all of these caveats in mind, what does the research say about the effects of joint custody on infants/young toddlers? The answer is that, practically speaking, not much that would be useful to most Jewish families. Based on a 2021 review of the topic by Robert Emery, a highly accomplished and respected psychology professor and director of the Center for Children, Families and the Law at the University of Virginia, there have only been three studies in the world examining overnight frequency and its effects on children below 2 years of age. (Emery actually references four studies on these very young children, but I excluded one of them, because it was based on children 2 years of age or older.)  

The problem with using the findings of these three studies is that they were conducted on a demographic that is not representative of most Jewish populations. The majority of parents in these studies were not married or living together when their children were born, and many had limited education and were impoverished. Thus, although these three studies did show some limited support for the proposition that frequent overnights are not good for children under the age of two, the problems with joint custody could have arisen from the characteristics of the families that were studied. For example, families who are resource-limited and less educated may understandably have to cope with greater stress, less information, and fewer resources in managing child custody schedules. Furthermore, these studies contained significant methodological issues that have caused researchers to question their findings. 

Thus, we truly do not have specific research that is applicable for middle- or upper-income divorcing couples regarding healthy custody schedules for infants/young toddlers. This does not prevent “experts” from making sweeping and unfounded statements on the topic. In a book chapter regarding child custody, Emery describes an instance of lack of objectivity about this subject. He discusses a so-called “consensus report” that claimed to review a wide range of the relevant literature on custody for very young children that was endorsed by 110 researchers and practitioners. Emery raises multiple objections about this report: (1) The report was never peer-reviewed; in fact, it was submitted and accepted on the same day. (2) It contained no information on the number of professionals contacted who did not endorse the author’s recommendations. (3) There was no information on the populations that were sampled. (4) None of the authors of any of the few direct studies on this topic were contacted. (5) Shortly before this “consensus” report was published, the report author and Emery participated, along with 20 other family law experts, in a conference designed to reach consensus about joint physical custody hosted by the Association of Family and Conciliation Courts. This diverse group explicitly did not reach a consensus on the issue. (6) The “consensus report” included 16 studies, 12 of which either were not actually empirical (that is not based on actual data collection), included older children, did not directly study overnights and attachment, or contained all three deficiencies. Emery concludes that the author’s aim was advocacy for a certain position rather than an objective examination of the evidence.

So where does all this controversy amongst scholars leave us? To modify and reapply a famous quote by Mark Twain: Reports of the death of traditional attachment theory have been greatly exaggerated. Based on a very rich tradition of research and theory spanning over 50 years, children in the earliest stage of life need the secure base of a primary caregiver. For the well-being of the developing child, we must not undermine this bond between that caregiver and the child, notwithstanding claims of “fairness,” “gender equality,” “fathers’ rights,” etc. Absent any child custody research to the contrary, this seems like the prudent way to proceed.

Thus, at what age should we start to phase in more equality in parenting schedules? Emery endorses an evolution to such equality as infants become toddlers and preschoolers. In regard to this “evolution,” I offer three observations: First, slow changes are better for young children than more drastic changes in circumstances. Second, each child is different, and the parenting schedule should evolve based on actual observation of the child’s needs and reactions. Third, the ability to communicate in at least short sentences, which develops around aged 2 years, is a quantum leap in a young child’s life, a time where the child can express feelings and advocate more effectively for him- or herself. Furthermore, 2-year-olds have a higher cognitive grasp of their world compared with younger children. By aged 2 years, the learning process is more thoughtful; language comprehension is rapidly growing; and the child begins to form mental images of things, objects, and concepts. Based on all of these changes, the 2-year-old is much more likely to have the conceptual understanding of a custody routine with overnights across time, especially about the fact that Mommy being absent does not mean that Mommy is gone forever. 

Putting my observations together, I think it is best to be skeptical about overnights with the non-primary caretaker before aged 2 years, although there might be exceptions for specific children. Even if there are overnights for children between the ages of 12 and 24 months, I would recommend less than once a week. Granted, a child between the ages of 12 and 24 months is starting to enter a new stage (toddlerhood), but based on normal child development, this young child is close enough to his or her infant years to experience considerable confusion and emotional dysregulation from overnight separations from the primary caretaker. Parents who do try overnights with their children between the ages of 12 and 24 months should phase them in slowly and should be willing to decrease them if the child is exhibiting inconsolable distress for long periods of time, either when with the non-primary caretaker or when reuniting with the primary caretaker.   

The less clarity that exists on an issue, the more likely there will be contention, argument, and misrepresentation. Clearly, lifestyles and relationships have evolved drastically, especially over the past 30 years. So, is it that research is now uncovering a fundamental truth that joint custody as compared with sole custody (with visitation) is neutral or even beneficial to child development, or could it be that this is a more convenient “truth” for us to believe? Holding to the more traditional view—that the child should maintain a home base with the primary caretaker—makes things more complicated for the non-primary caretaker and certainly strikes at society’s modern values of equality. We can do nothing about that; the general society is going to believe what it is going to believe. But does the Jewish Velt have to swallow that hook, line, and sinker? We have over 50 years of research and theory indicating the importance of maintaining stability and strong attachment between children and their primary caretaker. We need to be careful not to abandon that on the basis of equivocal and highly debatable findings.  

The research literature does suggest that parental conflict can have a considerable negative impact on how well a child or adolescent does with a joint custody plan. But not every study indicates a connection between conflict and worse child adjustment in joint custody. Emery suggests that it may be the intensity of the conflict that makes the difference. Furthermore, he argues that an important indicator of particularly high conflict is when the parents’ relationship is so acrimonious that they opt for litigation and present their custody question to a court rather than deciding it between themselves. Some judges might be tempted to opt for joint custody, based on legalistic notions of fairness and equity toward parental rights. Given the considerable conflict present in litigated divorces, this may often be a mistake and based on our discussion above, a particularly unhealthy mistake for a very young child. I would venture to say that such a litigious drive—through either a court or a Bais Din—might itself argue for waiting until after the child is aged 2 years to start overnights. 

What it really comes down to is that parenting is not a right; it is a responsibility. We Jews should easily recognize this. After all, the Torah is not really about human rights; rather, it is about human responsibilities, as expressed through the mitzvos. In shouldering our sacred responsibility to raise healthy children, we must seek out true sources of information rather than politically motivated rhetoric. And we must face uncomfortable truths, even if it hurts our feelings, interferes with our personal goals, and does not agree with modern notions of equality. 

Michael Milgraum, PhD, is a licensed psychologist and author who is in private practice in Kensington, Maryland. His latest book is titled Written Upon Our Souls. He works with children, adults, couples, and families.