Is Overnight Stay With a Non-custodial Parent Appropriate for Babies and Infants?

Whether a non-custodial parent, usually the Father, is able or should have overnight time presents very great problems for separated couples with very young children. It is advisable for parties considering such a move to get advice from a family lawyer or a child psychologist with experience in attachment issues.

Emotions run very high when parents are deciding about these issues. If there is a suggestion of violence by one party against the other, arriving at any agreement can be very difficult.

There is a plethora of written material about the subject, including a learned article by Judge Sexton of the Federal Circuit Court(1).

The period between 0-4 years has been identified as a very large neurological and developmental stage, when attachments are formed by young children. Sexton J observes that a serious disruption to a child’s primary attachment can lead to adverse outcomes, including mental health issues, later in life. As a child reaches 3 or 4 years of age, they are less troubled by separations from the primary attachment figure.

Her honour expressed concern that there is an expectation, sometimes amongst separated parents and lawyers, that the equal shared care and substantial and equal time requirements of the 2006 legislative amendments naturally apply, even if children are under 4 years of age.(2)

An essential requirement, Her honour says, is for practitioners and parties to understand ‘attachment theory’.

There are a multitude of factors which need to be considered before parties agree to overnight time. These include the age of the child, the child’s attachment to each parent and the interactions between the parents. For example, is their friction between them?

In a recent case, a Federal Circuit Court judge did order that a father could have overnight time with a 23 month old child. This was opposed by the Mother on the basis that ‘it was too early to experiment’.

The Federal Magistrate observed that there had ben a history of close involvement by both parents, the child been in day care for some time and no risk issues were identified.(see Cook and Aitken(2011) FMCA 1465)

1. The Australian Family Lawyer Volume 22 pp30
2. ibid pp 31

To speak to a child custody lawyer in Melbourne, contact us on (03) 9995 9155.