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growth, and separation of parent and toddler can impede the toddler's first steps toward autonomy and independence, which the toddler takes by building on the trust developed during the infant-parent bonding process. Courts awarding custody often note that separation from a parent at these vulnerable stages of development can harm a child's cognitive as well as psychological development, and can impede both the acquisition of language and other developmental milestones and the ability to form relationships and regulate emotions later in life.
7 Custody courts are also concerned with minimizing other types of disruption to children, on the theory that these, too, can hamper a child's progress toward a well-adjusted adulthood. Courts may express concern, for instance, about the damage that financial insecurity can inflict on a child. Courts are wary of placing too much weight on financial factors, and some jurisdictions prohibit their consideration altogether. Yet many custody courts will consider how financial instability can affect a child's development, both directly and indirectly. These courts acknowledge that financial deprivation can diminish the opportunities that will be available to a child later in life. Such deprivation, moreover, is often attended by additional potential harms in the form of frequent moves, educational disruption, and parental stress, each of which, according to the custody case law, can jeopardize a child's emotional and intellectual development, with long-term effects.
8 Family law's best interests of the child standard, then, provides a rich picture of the ways in which changes to a child's custodial environment can thwart a child's development into an autonomous and healthy adult. Foremost among these is disruption to the parent-child tie, especially when combined with other forms of change such as relocation and financial insecurity. Children who undergo disruptions of this nature to their caretaking environments may suffer developmental harm as a result.
9 By articulating the harmful effects on children of various types of disruption and instability, family law's best-interests analysis provides a useful tool for
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understanding how parental incarceration may affect a child's development. In 2007, there were 1.7 million children with a parent in prison. This represents an increase of 79 percent since 1991. As of 2007, the incarcerated population included 744,200 fathers and 65,600 mothers.
10 When a parent is incarcerated, this typically inflicts on a child the very harm that custody courts work most stringently to avoid: separation from a parent. As a preliminary matter, it is important to acknowledge that some children may benefit by separation from an incarcerated parent. Where the parent has abused the child, or exposed the child to other forms of violence, the child might be better off in a new environment. But family courts emphasize the importance to children of maintaining contact with even troubled and problematic parents, where possible. Criminal courts imposing sentences of incarceration, by contrast, will also separate children from parents who have been exemplary caretakers. They frequently do so without acknowledging the extent to which the separation may jeopardize the child's development and future well-being.
11 From the perspective of family law's best-interests case law, it is clear that the harm to children caused by separation from incarcerated parents can have profound and life-long effects. While the potential for harm is greatest when a child is separated from a primary caretaker, family law courts acknowledge the importance to children's well-being of maintaining contact with both parents. The potential for damage is especially great when a child is young. But separation from a parent can harm a child at any stage of development, and can result in behavioral problems, trouble in school, and emotional problems that may make it difficult for the child to establish relationships and to function independently as an adult.
New Words and Proper Terms
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