Divorce Parenting Arrangements for 0-4 year olds

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Divorce Parenting Arrangements for 0-4 year olds

Pamela Cominos, Lawyer | 09 November 2012

Do you have a child between the ages of 0-4 years?

Are you struggling with parenting arrangements for your child?

One of the most difficult tasks I confront as a legal practitioner on a regular basis is drafting, proposing and filing parenting orders for children in the 0-4 year age group where parents have separated. Further nothing I know of, evokes more angst and controversy than parents trying to work through what is the best parenting arrangement for children of this age, especially when one parent insists on overnight time and the other (usually primary carer) does not agree.

I am a lawyer and not a social scientist, but I believe it is my professional responsibility to understand the social science literature and advise and guide our clients with respect to what is in the best interests of children of this age group. I also emphasise that the social science literature does not replace evidence based outcomes for what is in the best interests of the individual child.

What social science tells us?

  1. That the period from birth to about 4 years of age is when attachments are established and this is a massive developmental stage both neurologically and behaviourally for the child
  2. Healthy attachments are critical to a child’s functioning and future?1
  3. From the ages of 0- 9 months infants develop preferential attachment to caregivers2 and by about the age of between 5-9 months, a child’s attachments have formed and thereafter stranger wariness and separation anxiety develops3
  4. Children aged 0-4 are particularly vulnerable to changes and disturbances in the development of their attachment to a primary care-giver
  5. Repetitive stress in this age group can lead to anxiety and depression in later life; it can lower a child’s stress threshold so that they are easily upset. Children may experience nightmares, excessive clinginess, frequent and inconsolable tears, loss of appetite, regressive behaviours
  6. A child can have more than one attachment person, but this will be a small number and those attachments will be prioritised by the child
  7. Attachment is a biological drive, linked to the survival of our species and is even more vital than hunger and thirst 4
  8. Sometime around 3 or 4 years of age or a bit older, children become less troubled when separated, from primary attachments figures
  9. Children up to about the ages of 4 years, cannot regulate their own emotions without the assistance of an attachment figure
  10. Children have a special vulnerability about night time 5

1Clarke, E “The Assessment of Attachments”, May 2012
2Lodge P ( March 2010) Seminar to Family Law Practitioners
4Clarke E, pages 2-3
5George, C , Solomon, J and McIntosh J (2011), “Divorce in the Nursery: On infants and Overnight Care”, Family Court Review

When should overnight time commence with the non-resident parent?

It is our experience that a non–resident parent (usually the father) will insist upon weekly overnight time with a child anywhere between the ages of three months and 4 years of age. The primary care-giver (usually the mother) is often distressed and uncertain as to how the child will cope with overnight stays with the other parent. The following is a series of questions that may assist you in dealing with the issue of commencement of overnight time6:

  1. Do both parents have a secure and warm relationship with the child before separation?
  2. Is the mother supportive of the father/child relationship and reassures the child at changeovers?
  3. Does the child have a routine when away from the primary carer and the child is not away from the other parent more than a few days at a time;
  4. Has the child been exposed to, or experienced conflict between the parents during the relationship or at changeovers?
  5. Does the non-resident parent have the skills to deal with a child who may be distressed during the night?

Your individual child/children

Theories are very important and we need them to guide and inform us. Most parents however want to know how to apply the theory to their individual child/children. So what questions do you need to ask before deciding about overnight time with the non-resident parent?

The following may assist you:

  1. How old is the child? A 3 month old will have very different needs to a 3 year old;
  2. Overnight stays are not essential for a child to form an attachments with the non-resident parent;
  3. What is the temperament of your child? How does your child cope with change? Are they easy going? Resilient? Sensitive? Clingy?
  4. Does the child know that the primary caregiver will return to the child?
  5. Is the child going with older siblings to the non-resident parent?
  6. Is the child securely attached to both parents? If so, then overnight stays may be appropriate;
  7. What were the arrangements prior to separation for the child, was there a relationship between the child and both parents? Or was this non-existent?

6 Cahsmore, J and Parkinson P, (2011) DRAFT Paper – “Parenting Arrangements for Young Children”

What is your relationship with the other parent?

Often it is the case, where parents are able to manage their separation with maturity and are able to remain focused on their child/ren then the parenting arrangements will reflect this. Consider the following:

  1. Are you are able to communicate in a positive and co-operative manner with your ex-partner?
  2. What are changeovers like? Are they harmonious or has the child been exposed to conflict and tension?
  3. How sensitive are you and the other parent to the needs of the child;
  4. Can both parents maintain a consistent routine for the child at meal times, eating habits, bedtime, bath time and sleep time;
  5. How anxious is the primary carer, when the child separates from them? The primary carer may inadvertently transfer their feelings of insecurity onto the child at changeovers and this may cause the child to become stressed and anxious.


Section 65DAA (1) of the Family Law Act 1975 requires the Court to consider whether the making of equal or substantial and significant time orders are “reasonably practicable”. As such when you are considering making such arrangement, the following may assist you:

  1. How far is the child required to travel?
  2. Where will the child spend time with the non-resident parent? Often parents propose the park or a shopping centre, is this appropriate, especially when the child needs to be fed and to sleep during the day?
  3. Is the child being breast fed?
  4. What hours do the party’s work?
  5. What is the child’s daily and weekly routine? Can the child manage changes to their current routine?


Parenting arrangements for 0-4 year old age group are challenging to say the least and a cautious and sensitive approach needs to be taken. Parents need to question their motivation for wanting overnight time or an equal time arrangement with children of this age group. Finally it is important to be mindful that arrangements that are made when the child is between 0-4 years of age, will not necessarily remain constant and as the child matures and grows, changes to parenting arrangements will be inevitable.

Pamela Cominos
Principal Family Lawyer – Cominos Lawyers


The writer acknowledges the paper presented by Her Honour Federal Magistrate Sexton on 13-15 September 2011 at Conference Hanoi, Vietnam as the source of the above information.

The above information is intended to be general in nature. Legal advice must be sought for your individual matter.

This article contains only general information, correct at the date of publication. For advice regarding your own personal circumstances, always seek individual advice from a qualified professional. Read the full Singlemum.com.au Disclaimer here

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About Pamela Cominos

Pamela Cominos is the Principal Family Lawyer at Cominos Lawyers, Sydney who specialise in all aspects of Family Law. She is also a member of the SingleMum.com.au Expert Opinion Panel.

Pamela holds a Masters of Arts degree together with a Bachelor of Laws Degree from University of New South Wales.
Pamela is passionate about being a lawyer and she is successful in assisting her clients in matters that involve complex parenting and property issues. Pamela is a skilled advocate and will represent you at Court with confidence and care. She is a pragmatic and compassionate solicitor who gives her undivided attention to your matter.
Pamela is committed to her family law practice and in particular women in domestic violence. She is on the legal aid Family Law Panel and is a referral solicitor for a number of Women’s Refuges in NSW.
You can read Pamela Cominos’ full profile here

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