Psychologist’s testimony leads to greater access for father

By Peter Small, Contributor

A father has gained generous access to his toddler after Toronto family lawyer Gene C. Colman called a prominent U.S. psychologist to testify that even young children benefit from overnights with both parents.

“In my wildest dreams, I didn’t think it would be the catalyst for a comprehensive settlement, but it was,” says Colman, principal of Gene C. Colman Family Law Centre.

He called upon American clinical and research psychologist Richard A. Warshak to demonstrate that, contrary to prevailing wisdom, infants and toddlers benefit from having equal time with both parents.

Colman was representing a father locked in a child custody dispute with the mother. She wanted primary access and control of their young daughter.

The mother was a strong believer in primary attachment theory, which has gained wide acceptance in the courts, Colman tells

The theory holds that young children of separation or divorce will have significant adjustment problems if they are deprived of their primary attachment — typically with the mother — by allowing overnight visits with the father.

Primary attachment theory derives from work done in the 1960s and 1970s by British psychologist John Bowlby. The theory was later popularized by researchers Joseph Goldstein, Albert J. Solnit, and Anna Freud in their 1973 book, Beyond the Best Interests of the Child.

“So the mindset within the legal profession has been, and to some extent still is, there’s one primary parent. There’s one primary attachment. Interrupt it and you’re going to cause children harm,” Colman says.

The biggest social science supporter of this theory is Australian child psychologist Jennifer McIntosh, who says children’s best interests are served by having a single attachment with their mothers, Colman says.

Her work is highlighted by a Justice Canada website that gives advice on parenting plans, he says.

“What the Justice Canada website ignores, and what many lawyers and some judges ignore, is the other research,” Colman says.

Some of this research was conducted by Warshak and fellow psychologists William V. Fabricius, Linda Nielsen, and Go Woon Suh, who have found flaws in the science backing primary attachment theory, Colman says.

“What these other researchers have found is that when you have regular overnight visits with infants and toddlers — and indeed across the board with all children of separation and divorce — these kids do much better than the ones that don’t have contact with their dads or have minimal contact with them,” Colman says.

Warshak further argues, social scientists advocating for blanket restrictions on overnight father contact with infants and toddlers use invalid methodologies and distort their own data.

Depriving young children of overnights with their fathers could compromise the quality of the developing father-child relationship, Warshak writes.

Colman and his client had two choices when presenting their case. They could put articles by Warshak and like-minded researchers into a brief and hand them to the judge, or they could call Warshak, at great expense, to fly up from Texas to testify.

They opted for the latter, which presented technical hurdles.

“A word of caution to my colleagues who might consider bringing an expert to court to weigh in with respect to the social science literature,” Colman says. “Carefully consider your province’s family law rules. Determine what you have to do in order to secure the admissibility of that evidence. In Ontario, you have to deliver a signed report well before the trial. There are other technical requirements as well.”

The effort and expense were well worth it, he says.

“Dr. Warshak gave fantastic evidence. He was very neutral, very balanced. He knew not just his own literature but other literature — knew it cold. And he was very persuasive,” Colman says.

After the mother’s lawyer cross-examined Warshak, he approached Colman and offered the parameters of a settlement. “It wasn’t quite 50-50 time but was close enough for our client. And we settled,” he says.

Although most people can’t afford to fly in an expert like Warshak, a knowledgeable family lawyer should be able to make persuasive arguments, Colman says.

However, it can be an uphill battle. The justice system’s misplaced emphasis on identifying one caregiver as the primary parent is entrenched, he says.

“You’ve got to have your social science lined up, and present it effectively,” Colman says.

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