of all later social relations.” But, importantly, this brain growth is
influenced by social forces and the child’s experiences. Thus, the
disruption caused by separation and divorce during these critically
important attachment years can have lingering effects for the
Who can best fill the crucial role of predictable, consistent,
and emotionally available caregiver?
Who can be intuitively sensitive to the child’s emotional
needs that are communicated in a nonverbal way?
Children’s development involves what Schore calls “an evolving
hierarchy of attachment,” and so one cannot understand the
impact of any effect on the child without understanding the stage
of development. Attachment in the first year of life and into the
second, when the emotional right brain circuits are in a critical
period of formation, is different from attachment in the third
or fourth year of life, when the system is more mature. On the
matter of a primary caregiver, neurobiology suggests that pre- and
postnatally, it is the mother’s right brain that is key to the co-creation of a secure attachment. In the first year and much of the
second, changes in caregiving arrangements are potent stressors
of the right brain, and changes resulting in separation from the
mother/primary caregiver will alter the brain’s early maturation.
Who can act as a psychobiological regulator of the infant’s
emotional states? What types of emotional experiences
provided by each parent will optimize the experience –
dependent maturation of the right brain?
At what points in time are these different
Can the parents negotiate a solution that is in the best
interest of the child’s hard-wired brain development?
The common practice of splitting custody and care arrangements
50–50 may conflict with these recent research findings. Schore
If not, can the court help the parents negotiate such
a situation via a mandated referral to psychotherapy?
[Author’s note: And how might we, as family mediators, help
parents in this situation?]
“the idea of 50–50 custody splits in the first 2 years is to
my mind, highly problematic, and will have negative long-
term consequences. Considering the neuroscience, the data
indicates that weekly paternal visitations in the first year
would allow the father and baby to begin to know each other,
a strong motivator for their forming an attachment.”
Are there certain experiences that this child will be
exposed to in a care arrangement which are so negative to
development that it would be better to withdraw the child
out of that context?
The challenge, however, is not limited to just the first two years of
life. Schore has proposed that:
“as the mother is to the development of the right hemisphere
[of the infant’s brain], the father is to the left, because the
left comes online at about a year and a half, and generates
new language functions and voluntary behaviors in a much
more verbal, mobile toddler…[I]f the baby is deprived of
a sensitive, responsive father in the second year, it has an
even more negative effect than if that father is absent or
less available in the first year. And it would have a more
deleterious effect on the toddler’s psychological gender
formation and capacity to regulate aggression”.
The advances in Attachment Theory and the evolution of
interpersonal neurobiology do not necessarily make the question
“what is in the best interest of the child?” any easier to define or
apply. What is clear, however, is that this growing field of science
promises help in addressing perhaps the single most contentious
issue in family mediation. While the conundrum has not been
solved, we now have additional scientific information and a set of
questions from which to launch our exploration toward serving
the best interest of the child.
Robb is a mediator and attorney at law in Boone, N.C. He
holds a BA from Monmouth University, a JD from N.C.
Central University School of Law and a M.S. in Mediation
and Applied Conflict Studies from Champlain College. He
has been a member of ACR since 2011.
One cannot understand the impact of any
effect on the child without understanding the
state of development.
So, what is the family mediator to do? IN has provided a
compelling potential scientific basis for the understanding of
what is in the best interest of the child. However, the science is
new, tentative and has not yet been vetted by the traditional legal
and social science institutions. Furthermore, while gender-neutral
parenting decisions have been more or less the standard for some
four decades, the evolving definition of the traditional family
(e.g., to include two same gender parents) underscores the need
for additional research and careful mainstreaming of these findings
into both the court system and ADR mechanisms.
Bowlby, John. Attachment and loss: Volume 1. Attachment. New York: Basic
Books, 1969/1982. Web. 13 February 2013.
Bowlby, John. “The Nature Of The Child’s Tie To His Mother.” International
Journal of Psycho-Analysis. 39 (1958) : 350 – 373. Web. 28 May 2013.
McIntosh, Jennifer and Richard Chisholm. “Cautionary notes on the shared
care of children in conflicted parental separation.” Journal of Family Studies.
14.1 (2008) : 37-52. Web. 17 February 2013.
Schore, Allan and Jennifer McIntosh. “Family Law and the Neuroscience of
Attachment, Part 1.” Family Court Review. 49.3 (2011): 501 – 512. Web. 19
Siegel, Daniel and Jennifer McIntosh. “Family Law and the Neuroscience of
Attachment, Part 2.” Family Court Review. 49.3 (2011): 513 – 520. Web. 19
Taylor, Alison. The Handbook of Family Dispute Resolution: Mediation Theory and
Practice. San-Francisco: Jossey-Bass, 2002. Print.
In his interview with Jennifer McIntosh, Allan Schore offers
some practical questions to employ when working with divorcing
couples with minor children as an adjunct to the elusive “best
ACRESOLUTION Spring 2013