IS THE APPROXIMATION RULE IN THE CHILD'S BEST INTERESTS?

Abstract

In an effort to develop clear and uniform standards for the allocation of custodial responsibility, the American Law Institute has proposed a number of reforms. For example, under the approximation rule, the proportion of time parents spent with their children performing direct caregiving functions prior to the divorce would be reflected in the proportion of custodial time allotted to each parent after divorce. Much of the rationale used to justify the approximation rule is explicitly or implicitly based on attachment theory (Bowlby, 1969, 1973, 1980). This article discusses the assumptions and implications of the approximation rule from the standpoint of attachment theory. Last year, the American Law Institute (ALI) released its 1,200-page Principles of the Law of Family Dissolution (hereinafter referred to as Principles ), in which a number of reforms for family and divorce courts were proposed . Although recent years have seen some meeting of the minds between mental health professionals and legal professionals on the topic of divorce and custody arrangements, the ALI proposals make little reference to, and at times contradict, the accumulated social science evidence (Braver, 2003). For example, in an effort to replace the best interests of the child standard and develop clear and uniform standards for the allocation of custodial responsibility, the ALI proposed the approximation rule, which suggests that physical custody arrangements should be based on the time each parent devoted to caretaking prior to separation. Much of the rationale put forth to justify the approximation rule is explicitly or implicitly based on the concept of parent-child attachment originated by Bowlby (1969, 1973, 1980). Kelly and Ward (2002) recently reviewed the attachment literature and concluded that attachment theory was consistent with and seemed to support the approximation rule based on three key areas of conformity: (a) recognition of the importance of caregiving, (b) the ability to form attachments to multiple caregivers, and (c) consistency of attachment relationships. By comparison, the present discussion critiques the approximation rule based on inconsistencies between what the current state of the attachment literature and research can tell us, and the stated justifications for the approximation rule that are grounded in the attachment theory. Although the approximation rule may hold some advantages over current standards, this review argues that it is based on erroneous assump- tions that are not supported by the developmental literature. The following review of attach- ment literature expands upon the earlier overview (Kelly & Ward, 2002) and concentrates on the qualitative differences in behavior and outcome associated with secure attachment