Shared Custody Arrangements – Overnight Access with Under 4s

Shared custody arrangements

When you separate from your ex-partner, it’s natural to want to organise shared custody arrangements (known as live with arrangements) quickly so you can maintain a strong relationship with your children. But what if your children are under four? Can overnight time happen so young? What do you need to consider?  What does research and the law say?

How young is too young for overnight access?

The truth is there’s no perfect age to start overnight access. Some experts believe that overnight time shouldn’t start until a child turns three or four. Their belief is that when children spend the night away from their primary attachment, their attachment is interrupted and this can be traumatic for them.

Other experts believe that children can form multiple attachments with multiple caregivers, so overnight access shouldn’t cause any developmental issues. In fact, it may even be of benefit to the child.

So, who do you believe?

One thing to keep in mind is often parents will have a date night or go away for a few days and think nothing of leaving a child or children with grandparents, relatives or friends without a second thought. Does doing so damage a child? Not at all.

Whether your children are under four years of age and ready for overnight time is highly individual, and will depend on your child’s developmental stage, their relationship with you and their attachment style.

What is an attachment style?

When we talk about attachment, we are talking about the bond a child forms with their parents. Often a child will develop a stronger attachment with one parent than the other, and frequently this is with their mother or the main caregiver since birth.

Children are born helpless and rely on a caregiver for all their needs. That’s why early experiences are so impactful.  Like any “first impression,” your first impressions about human life, love, and liberty come from your experiences with your caregivers — mum and dad.  In other words:

  • how they related to you,
  • interacted with you,
  • nurtured you,
  • cared for you,
  • communicated with you; and
  • treated you, etc.

Studies in Attachment Theory in the past three or four decades have established some basic attachment patterns that are typical by parents.  After the categorizing of these patterns, research has traced the effect of these attachment patterns in people’s lives.  As a result, we now understand that the patterns of attachment profoundly influence a person’s well-being, mental health, social intelligence, memory, resilience, learning capacity, and much more.  I hear a question on the horizon…. What are the categories you ask?

  • Secure attachment. A bonding pattern of love and support, parents giving compassion, patience, time, etc.  Parents are able to “read” the infant’s signals and respond empathetically.  These children will show some distress when their caregiver leaves but are able to compose themselves knowing that their caregiver will ultimately return. Children with secure attachment feel protected by their caregivers, and they know that they can depend on them to return. Children who are exposed to this attachment pattern are:
    • Generally happy
    • Trusting
    • Enjoy being with their parent or caregiver
    • Feel safe to explore the world around them and test their independence
  • Avoidant attachment. A non-bonding pattern.  Parents essentially are not available emotionally or mentally, preoccupied, busy, stressed-out, etc.  These parents typically disregard or ignore their children's needs and can be especially rejecting when their child is hurt or sick. Children who are raised who have experienced this attachment pattern may become:
    • Emotionally distant
    • Isolated, preferring to play and interact with objects rather than people
    • Wary of physical contact, such as hugs and cuddles
  • Ambivalent attachment. An on-and-off bonding pattern.  Parents are sometimes available, sometimes not.  Sometimes highly intrusive, sometimes completely dis-connected. In this type of attachment, the child is generally re-acting to unpredictable home life. That means they are never certain what type of reaction they will get from their parents or caregiver and therefore attempt to control the situation as best they can. Because they never know what to expect, the child will also never understand how they should act when they are introduced to the caregiver again. This type of child, during their younger years, will generally exhibit very little interest in exploring and will generally be very uncertain of strangers even if their parent is nearby. When the parent leaves, they tend to exhibit distress. However, when the parent returns, they are generally ambivalent toward them and ignore them. Children raises in these environments may:
    • Have high levels of anxiety and insecurity
    • Be extra clingy
    • Seek attention from their parents often – yet may reject it when the attention is given to them
    • Become particularly wary of strangers
  • Anxious-avoidant attachment. Individuals with a fearful avoidant attachment style have characteristics of both anxious and avoidant Bartholomew and Horowitz write that they tend to have negative views of both themselves and others, feel unworthy of support, and anticipate that others will not support them.
  • Disorganized attachment. A dis-orienting non-bonding pattern.  Parents themselves are unstable and therefore frightening to the child. These parents struggle to maintain ordinary relationships. A child who experiences this type of attachment often won't learn healthy ways to self-soothe. This could contribute to children:
    • Struggling to manage their emotions
    • Displaying anger and erratic behaviour
    • Coming across as depressed, withdrawn, or unresponsive

Why does attachment matter?

When a child has secure attachments it changes the way they interact with their world and other people within it. Children who have a secure attachment are more trusting of others, and form deeper, more secure bonds with their other parent and significant caregivers.

Children with secure attachments find it easier to move between environments, both with their primary parent and without. It is common for children with a secure attachment to still cry when their primary parent leaves, but they settle easier and soon engage with their environment, and the people within it, in a meaningful way.

When considering shared custody arrangements that include overnight stays, children with a secure attachment will manage the transition much easier than children who have developed any of the other attachment styles.

What else do you need to consider?

A lot of critical development happens during the first four years of life, and while age is an important factor in considering whether overnight stays are a good idea, it isn’t the only one. You also need to consider:

  • The level and frequency of access up until now
  • The attachment your child has with both parents
  • The ability of the other parent in being able to soothe the child
  • Whether the child is breastfeeding (although mothers can provide expressed milk to the other parent in these circumstances)
  • Whether you can maintain their eating and sleeping schedule
  • Any other special needs they have

Children adjust to changing environments much better when their routines are maintained across both households. For this reason, it isn’t just about your child’s developmental age and stage. You also need to ask yourself whether you can do all the things for your child that their primary parent does such as:

  • Being able to soothe the child when distressed (this is a crucial factor in determining overnight arrangements)
  • Maintaining their special dietary needs
  • Getting up at night to feed or settle them
  • Changing nappies
  • Maintaining their typical daily routine

Younger children tend to have a much higher need for stability and routine than older children. So, the younger your child, the more stable and structured their routine will need to be.

What does the law say?

There is no golden rule when it comes to the age a child is considered ready for overnight access according to the law. The courts will consider a range of things when determining if shared custody arrangements should include overnight access.

The most important factor the courts will consider is whether overnight time is in the best interest of the child. When considering the best interests of the child, the courts generally review factors such as:

  • Whether there are any safety concerns
  • If Overnight time is occurring and going well
  • The history of care – including the frequency and level of access
  • The child’s emotional health and well-being
  • The child’s relationship with their parents
  • If the child has complex needs

Some experts argue that children under the age of four should not be away from their primary parent overnight. However, where the child has a secure attachment with both parents, there is no reason to believe that overnight stays would not be appropriate if they are thoughtfully arranged.

Need help working out your shared custody arrangement?

We understand how complicated it can be to sort out shared custody arrangements that are in the best interests of your children, and works for both parents. Here at Joliman Lawyers, our team of specialised family lawyers will listen to your situation and provide the advice, guidance, and assistance you need to ensure you make the right decision for you and your family. Call us today, we’re here to help.

Trevor Jolly

Trevor Jolly

I have a passion for all things Family Law. My wife Justine and I commenced Joliman Lawyers in 2002. I'm a Nationally Accredited Mediator and Family Dispute Resolution Practitioner. I am also a Parenting Coordinator and Conflict Coach.