Journal of Divorce & Remarriage

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Parental Gatekeeping and Child Custody

Evaluation: Part III: Protective Gatekeeping and
the Overnights “Conundrum”

William G. Austin

To cite this article: William G. Austin (2018): Parental Gatekeeping and Child Custody
Evaluation: Part III: Protective Gatekeeping and the Overnights “Conundrum”, Journal of Divorce &
Remarriage, DOI: 10.1080/10502556.2018.1454202

To link to this article: https://doi.org/10.1080/10502556.2018.1454202

Published online: 18 Apr 2018.

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JOURNAL OF DIVORCE & REMARRIAGE
https://doi.org/10.1080/10502556.2018.1454202

Parental Gatekeeping and Child Custody Evaluation:

Part III: Protective Gatekeeping and the Overnights
“Conundrum”
William G. Austin
Austin Child Custody Services, Lakewood, Colorado, USA

ABSTRACT KEYWORDS
The concept of parental gatekeeping and the forensic evalua- Overnights; parental
tion model for child custody disputes is described and applied gatekeeping; child custody
to the context of considering overnight care by fathers for
infants and toddlers. The forensic model is briefly described:
facilitative, restrictive, and protective gatekeeping. The gate-
keeping continuum is described, ranging from extreme restric-
tive to very facilitative and inclusive. Gatekeeping is isomorphic
with a common best interest statutory factor on support for
the other parent–child relationships. The limited research on
overnights and child outcomes is briefly reviewed and dis-
cussed in the context of attachment theory. The concept of
social capital is introduced as an explanatory concept for
research that shows the benefit of joint parental involvement
and shared parenting, including overnight care by fathers.
Attachment and social capital are presented as complemen-
tary, explanatory concepts for understanding the gatekeeping
and overnights issues. The conservative school of thought on
overnight care by fathers is discussed in terms of a justification
analysis as part of the gatekeeping model. Mothers opposing
overnights need to show with behavioral specificity how over-
nights would be harmful to the child and then how the father
can still be afforded substantial involvement in the present and
future.

This article is one of a series that applies the parental gatekeeping forensic
evaluation model to complex issues in child custody and parenting time
disputes (Austin, 2011; Austin, Fieldstone, & Pruett, 2013; Austin, Pruett,
Kirkpatrick, Flens, & Gould, 2013). The model is being applied to specific
and different forensic contexts and complex issues, such as child custody and
relocation disputes (Austin & Rappaport, in press). This article applies the
gatekeeping model to the issue of shared parenting arrangements in child
custody disputes and evaluations generally, and specifically to the issue of
overnight care by fathers for young and very young children (e.g., infants and
toddlers). This issue once again has become a point of professional dialogue

CONTACT William G. Austin wgaustinphd2@yahoo.com Austin Child Custody Services, 710 Kipling, Suite
306, Lakewood, CO 80215, USA.
© 2018 Taylor & Francis Group, LLC
2 W. G. AUSTIN

and controversy apparently with two schools of thought following the pub-
lication of articles by prominent scholars in the fields of family law and child
custody who have proposed a very cautious approach to overnight care by
father for children under the age of 4 years (McIntosh, Pruett, & Kelly, 2014;
Pruett, McIntosh, & Kelly, 2014).
The concept of parental gatekeeping seems to have become a central part of
the lexicon in the fields of child custody evaluation and family law based on
many workshops presented at national and state organizations and the seminal
articles in peer-reviewed journals (Austin, 2011; Austin, Fieldstone, et al., 2013;
Austin, Pruett, et al., 2013); research on gatekeeping in the context of separa-
tion and divorce (Fagan & Barnett, 2003; Pruett, Arthur, & Ebling, 2007); and
reviews of the gatekeeping research for applying a gatekeeping analysis to this
context of separation and divorce (Austin, 2012; Austin, Fieldstone, et al.,
2013; Austin, Pruett, et al., 2013; Ganong, Coleman, & Chapman, 2016;
Ganong, Coleman, & McCalle, 2012; Saini, Drozd, & Olesen, 2017).
The gatekeeping concept is research-based from the fields of family studies
and divorce and conflict, and provides a useful way to examine coparenting
dynamics and parental conflict in the context of parenting time and access
disputes (Allen & Hawkins, 1999). There is a large research literature on
gatekeeping attitudes and behaviors in the context of coparenting in intact
families (Allen & Hawkins, 1999; Ganong et al., 2016) that generally shows
how parental gatekeeping can affect the quality of the other parent–child
relationship and the coparenting relationship. Research on maternal gate-
keeping shows how it affects fathers’ satisfaction with parenting and their
degree of involvement with parenting (Ganong et al., 2016).
Gatekeeping overlaps with other complementary concepts: coparenting,
conflict, and parental alienation. For example, there is an overlapping and
reciprocal association between restrictive gatekeeping (RG) and parental
conflict: RG begets parental conflict and vice versa. Parental gatekeeping
refers to the “attitudes and actions of parents that can affect the involvement
and quality of the other parent–child relationships, either positively or
negatively” (Austin, Fieldstone, et al., 2013, p. 2). It is assumed that RG
between and by both parents will be more frequent following separation and
divorce (Fagan & Barnett, 2003; Ganong et al., 2016). Limited research exists
on gatekeeping attitudes and behaviors among divorced families (Pruett,
Williams, Insabella, & Little, 2003; Trinder, 2008), but research reviews
have been presented for the purpose of extrapolating the gatekeeping concept
and research to this population (Austin, Fieldstone, et al., 2013; Austin,
Pruett, et al., 2013; Ganong et al., 2016; Pruett, Arthur, & Ebling, 2007;
Saini et al., 2017).
We examine the problem of overnight care for infants, toddlers, and
preschoolers within the context of theoretical constructs and research con-
cerning social capital, gatekeeping, and attachment theory. Practical
 JOURNAL OF DIVORCE & REMARRIAGE 3

considerations are also commonly prominent when separating and divorcing

parents are trying to work out a parenting plan for young children. For
example, if there is a very young child with a younger father who works full
time, how is he going to forge a meaningful relationship with the child
without having overnights?
We argue that the problem of overnight care for young children presents a
conundrum of sorts—to some extent—that has preoccupied many in the
professional fields of family law and child custody for many years, and this
issue has become more pronounced with the publication of recent, promi-
nent articles that recommend a very conservative approach to allocating
overnight parenting time for father for children under 4 years of age
(McIntosh et al., 2014; Pruett et al., 2014). These publications appear to
represent unofficial guidelines for allocating overnight parenting time for
fathers. These de facto guidelines lack empirical support, as there is no
research that clearly shows that overnight care by fathers will be expected
to be harmful to infants or toddlers. It could be that for practical considera-
tions, overnights by fathers should be delayed, so long as the father who is
motivated to be an involved parent can have the opportunity for substantial
involvement. In this way, the expected healthy development of the child to
father attachment relationship can develop.
We suggest that a gatekeeping analysis can be helpful to resolve this
conundrum on how to proceed to address the overnights issue for fathers,
as it represents one application to a context that involves “protective gate-
keeping” (PG), where a parent is expressing concerns, or making explicit
assertions of potential harm to the child associated with spending extended
time with the other parent. The parental gatekeeping model has been pre-
sented in other publications, but it is still evolving. It has not been presented
for the readership in this journal, one of the prominent journals that is a
valuable resource for child custody and family law practitioners.

Purpose
I have a number of purposes or topics of interest for this article. First, I
juxtapose the importance of gatekeeping and the benefits of joint parental
involvement for children of divorce, as supported by extensive
research. Second, I present a brief description of the parental gatekeeping
forensic evaluation model. The model has been described in other journal
articles, but this will be a new introduction for the readership of this journal,
which is an important resource for practitioners in the fields of child custody
and family law. Third, social capital is presented as an explanatory concept
for why joint parental involvement and shared parenting, including over-
night care by fathers, is expected to generally be more beneficial than sole
custody arrangements. The concept explains why positive, facilitative
4 W. G. AUSTIN

gatekeeping (FG) will be beneficial for children of divorce. Fourth, the

limited research on overnight care by fathers is briefly reviewed, and dis-
cussed in the context of attachment theory. Social capital and attachment
theory are contrasted as alternative theoretical perspectives for considering
pros and cons of overnight care by fathers.They represent different levels of
analysis; that is, the social capital perspective is more of a social psychological
one The child’s secure attachment relationship with both parents can be
viewed as part of the social and parental capital available to the child. Fifth,
the justification analysis in the parental gatekeeping model is applied to the
issue of a mother who is opposing overnight care by the father as PG. The
generic forensic protocol for PG (Austin, in press) is adapted to the forensic
custody dispute context involving the issue of overnight care by fathers with
infants and toddlers. The model and the custody evaluator’s forensic task is
to determine if the RG position of the parent who is opposing overnight care
can be justified based on the facts, case context, circumstances, and the
professional literature.

Legal context
When parents oppose overnight care for the other parent (usually it is the
mother) as part of a court-ordered parenting plan, then it needs to be
justified as not in the child’s best interests or as potentially harmful to the
child. This analysis is part of the justification analysis found in the gate-
keeping forensic model (Austin, Pruett, et al., 2013). A conservative position
on overnights also needs to be juxtaposed with a common social policy and
legislative declaration found in virtually every U.S. state and other Western
countries that calls for encouraging “frequent and continuing contact” by
both parents and the child following separation and divorce. For example, in
Florida the legislative declaration states:
It is the public policy of this state that each minor child has frequent and
continuing contact with both parents after the parents separate or the marriage
of the parties is dissolved and to encourage the parents to share the rights and
responsibilities, and joys, of childrearing. (Florida Statute, 61.13(2)(c)(1))

Second, the common statutory best interest factor (e.g., the gatekeeping
factor) requires the court and custody evaluators to consider the quality of
coparenting and gatekeeping behaviors. The gatekeeping factor in Florida
states:
The demonstrated capacity and disposition of each parent to facilitate and encou-
rage a close and continuing parent–child relationship, to honor the time-sharing
schedule, and to be reasonable when changes are required. (Florida Statute,
6.13(3)(a))
 JOURNAL OF DIVORCE & REMARRIAGE 5

Even in those states where there is not a list of best interest factors (e.g.,
California, New York, North Carolina) it is expected that courts will want to
know about this process of mutual support (or lack thereof) between the
parents. Litigated custody disputes by definition are high-conflict cases, so
mutual RG is commonplace. Courts will want to know how this negative
process can be contained and the children shielded from conflict, and how
the quality of coparenting can potentially be improved.

Parental gatekeeping model

The forensic model identifies types of gatekeeping, or gatekeeping behavioral
patterns. FG “occurs when a parent acts to support continuing involvement
and maintenance of a meaningful relationship with the child [by the other
parent]. Facilitating behaviors are proactive, inclusive, and demonstrate for
the child that the parent values the other parent’s contributions” (Austin,
Fieldstone, et al., 2013, p. 5). RG “refers to actions by a parent that are
intended [or expected] to interfere with the other parent’s involvement with
the child and would predictably negatively affect the quality of their relation-
ship” (Austin, Fieldstone, et al., 2013, p. 5).
It is important for evaluators to keep in mind that coparenting and gate-
keeping behaviors are part of the quality of parenting practices. There are
secondary effects due to gatekeeping in that the quality of gatekeeping
attitudes and behaviors are expected to have an impact on children’s adjust-
ment and sense of well-being (Whiteside, 1998) just as the level of parental
conflict has such predictable effects (Davies & Cummings, 1994). In fact,
Amato (2010) found that the quality of the coparenting affects parents’ and
children’s physical and mental health. Research has found that the quality of
parenting is more important for children’s adjustment, but the quality of
coparenting also affects child adjustment (Russell, Beckmeyer, Coleman, &
Ganong, 2016).

Gatekeeping as a continuous variable and communication to the court

Gatekeeping is best (and most scientifically) conceptualized as a continuous
variable and occurring within different behavioral domains. A custody eva-
luator can strive to identify the quality and specifics of gatekeeping within
each domain. The degree of gatekeeping quality can be communicated to the
court (e.g., low, medium, high in terms of FG and RG) as to the relevance for
the recommended parenting plan.
Examples of behavioral domains include information sharing about the
child, parents’ willingness to communicate with each other, compliance with
the parenting time schedule and spirit of the parenting plan (which can
include supporting parental involvement in extracurricular activities)
6 W. G. AUSTIN

including being flexible as needed, not being critical of the other parent to
the children or others (i.e., public criticism), and showing to the child an
appreciation of value in the contributions of the other parent.
The quality of a person’s gatekeeping can be rated within each domain, but
the gatekeeping statutory factor requires the evaluator to give an overall or
general rating of each parent’s quality of gatekeeping. Case law often states
that the court must explicitly consider and address each factor, or in its
“factorial analysis” and often emphasizes the gatekeeping factor (In re
Marriage of Collingbourne, 2003).

Protective gatekeeping
“Protective gatekeeping (PG)1 is a form of RG that arises when a parent acts
to limit the other parent’s involvement or is critical of the other parent’s
parenting skills because of possible harm to the child. PG is defined in terms
of the reasons a parent wants to limit access of involvement by the other
parent” (Austin, Fieldstone, et al., 2013, p. 5). An elaborated definition of PG
is attitudes, actions, or legal position of a parent that are designed to limit the
other parent’s access, contact, or involvement with the child based on stated
reasons that parenting time and involvement places the child at risk for
harm, emotional distress, behavioral problems, adjustment difficulties, or
negative developmental impact. Frequently asserted reasons for PG include
allegations of the presence of a major mental illness, past or current sub-
stance abuse or alcohol issues, past pattern of intimate partner violence,
harsh parenting practices or child abuse, and child sexual abuse. The generic
justification analysis for PG, as discussed later, then needs to be adapted to
each of these contexts with the prominent issue and allegations.

Gate-Opening and gate-Closing behaviors

The gatekeeping model encourages evaluators to measure gatekeeping beha-
viors with behavioral specificity (Austin, Fieldstone, et al., 2013) so as to try
to eliminate the danger of doing the analysis by labeling. The model (Austin,
Fieldstone, et al., 2013; Trinder, 2008) discusses specific gate-opening beha-
viors with FG and specific gate-closing behaviors with RG.

Justification analysis
When a parent is not supportive of the other parent or wants to restrict
parenting time, then the gatekeeping model directs the evaluator to conduct a
justification analysis to see if the nonsupportive and restrictive parent’s gate-
closing behaviors can be justified based on the facts, context, circumstances,
and possibly the professional literature. In cases involving PG, the specific
 JOURNAL OF DIVORCE & REMARRIAGE 7

sources of potential harm to the child need to be identified and if justified,

then protective measures need to be taken so the risk can be managed. A
generic justification protocol for PG has been developed (Austin, in press)
that can be adapted to different legal contexts, or types of PG. For example, it
was adapted to the context of disputes over relocation of a child (Austin &
Rappaport, in press). This article adapts the PG protocol to the context of
overnight care by fathers.
When the evaluator’s assessment and investigation does not find sufficient
data and context to justify the restrictive parent’s lack of support and
restrictiveness, then it is referred to as unjustified restrictive gatekeeping
(URG). Sometimes when the evaluator concludes it is a case of URG, it
could be that the restrictive parent’s concerns are at least “understandable.”
Conversely, when the parent’s restrictiveness is found to be justified, then it
is case of justified restrictive gatekeeping (JRG). PG can be justified or
unjustified, as it just refers to the reasons for the parent’s concern about a
risk of harm to the child.
In the context of a parent opposing overnight care, there could be a variety
of concerns the restricting parent (usually the mother) holds about the other
parent having overnights, or the number of overnights as part of a parenting
time schedule. These concerns might involve the age of the child, history of a
primary caregiver parent, the level of the father’s involvement in hands-on
care or child-rearing, perceived level of competence in parenting a very
young child, and beliefs about gender norms. Other concerns about potential
harm could be part of opposition to overnights such as harsh parenting, past
interpersonal violence, or substance abuse.
The restrictive parent on the overnights issue has done an implicit perso-
nal risk assessment and concluded that overnight time (or substantial over-
night time) would be detrimental to the child. From the gatekeeping model,
the custody evaluator should be seeking data from the restrictive parent to
show with behavioral specificity that the risk of potential harm from over-
nights is substantial and sufficient to deny (or minimize) overnight care.
If the restrictive parent is starting from a very conservative, restrictive
position on the overnights in the context of custody litigation, then (assum-
ing a competent, committed, loving father) the evaluator needs to inquire
about the mother’s plan to “step up” the father involvement and parenting
time (Pruett, Deutsch, & Drozd, 2016). This reasoning is based on the
extensive research on the benefits from joint parental involvement and
shared parenting as discussed later.
An alternative PG analysis is that taking steps in a parenting plan to
include substantial joint parental involvement also serves a protective func-
tion by enhancing the child’s relationships with both parents (Warshak,
2014).
8 W. G. AUSTIN

A brief history of the debate on overnight care

Attachment theory has its roots in Bowlby’s seminal proposal that infants
thrive if closely bonded to a parent (Bowlby, 1973). When Bowlby began to
write in the middle of the 20th century, that parent was universally presumed
to be the mother. Fathers were little mentioned in the original theory, and
divorce was contemplated even less. In the next years, Lamb and others
published numerous research studies supportive of the importance of fathers
to young children, including research that described attachments to fathers
that paralleled maternal attachments in strength and importance (see Lamb,
1997, for a review). These articles became part of a large literature that
showed the benefits of joint parental involvement for the long-term adjust-
ment of children of divorce (Amato & Sobolewski, 2010; Hetherington &
Kelly, 2002) and the importance of fathers for child development following
divorce (Amato & Sobolewski, 2010; Pleck, 2010). Overall, attachment was
confirmed as an important factor in early development, although empirical
research also led to the conclusion that many other factors were as determi-
native or more determinative of subsequent adjustment (Thompson, 2008).
Not surprisingly, parental divorce has been shown to be a significant factor in
later maladjustment, often more significant than early attachment status.
Solomon and George (1999a, 1999b), two attachment scholars, were the
first to take on an empirical investigation of the effects of overnight care
by fathers in divorce. Relying only on interviews of mothers, they found no
differences between overnighting and nonovernighting groups of children on
attachment measures, although these results have been widely misrepre-
sented. Many of the methods used were fundamentally flawed, and the
consequently flawed findings were misinterpreted to oppose overnights for
very young children, as discussed by Lamb and Kelly (2001) and Warshak
(2000).
Kelly and Lamb (2000) applied a sophisticated review of the theory and
research on attachment theory and child development studies to fathers’
involvement to the context of child custody and developing parenting time
plans involving very young children. They suggested that young children
would profit from a schedule that provided for substantial time for each
parent and relatively frequent movement between the households so as not to
burden young children with separations from either parent of more than 3 or
4 days. Scholars weighed in, some of them opposed to overnight care
(Solomon & Biringen, 2001), and many of them recommending a more
open-minded approach to overnight care by fathers (Lamb & Kelly, 2001;
Warshak, 2000, 2002).2 Further analysis by scholar-practitioners moved the
research closer to a child custody context, emphasizing practical considera-
tions and the case-specific nature of necessary psychological and legal ana-
lysis (Gould & Stahl, 2001).
 JOURNAL OF DIVORCE & REMARRIAGE 9

Pruett and her colleagues conducted a second study of overnighting

children (Pruett, Ebling, & Insabella, 2004). They were relying on the reports
of both mothers and fathers. This study was carefully done and methodolo-
gically sound. The authors found few differences between overnighting and
nonovernighting toddlers and preschoolers, with the authors concluding that
concern about overnights was “misplaced.” More recently, Tornello and her
colleagues (Tornello et al., 2013) addressed the question of overnights using a
large, but unusual sample of inner-city residents in the United States, whose
level of poverty and associated factors precludes ready generalizability. The
measure of attachment used to assess outcomes was also nonstandard. These
and other methodological problems in this study have been noted, as well as
issues about data interpretation.
An Australian study has without question received the most attention
(McIntosh, Smyth, Wells, & Long, 2010). This study used a large national
database involving thousands of children, although cells were very small for
infants and preschoolers whose parents lived apart (Nielsen, 2014). There
was no established reliability or validity for four of the five measures used to
assess attachment status and behavior. More than the others, this study has
been widely criticized (Nielsen, 2014; Warshak, 2014), partly because
McIntosh et al. (2014) elected to broadly suggest that parents and courts
take a cautious approach to overnights and shared parenting with young
children.
Warshak (2014) provided compelling rationales for overnight care of
infants and young children, citing the well-documented vulnerability of
father–child relationships in families in which the parents do not live
together. Warshak noted that overnights are a protective factor associated
with increased father commitment to child-rearing. He commented on the
dearth of studies that show substantial risk to young children in overnights
and recommended that policymakers and the courts recognize the dangers to
developing father–child relationships inherent in depriving young children of
overnights. Warshak’s paper was endorsed by 110 researchers and practi-
tioners with significant knowledge of child custody, the development of
young children, and related areas. It stands as a remarkable testament to
professional support for shared care. Since then, empirical studies have
further supported the long-term benefits to children of divorce provided by
a robust relationship to both parents (Fabricius & Suh, 2017). Also, one
would expect there would be greater compliance with fathers paying their
required child support being involved, divorced fathers who would enjoy
overnight time and full-service parenting of the child.
No single parenting plan will be right for all young children of divorced or
separated parents, in part because the research is insufficient to begin to
answer such a question, and in part because it is virtually impossible that one
plan would work for all children and all families. It is clear that there is a
10 W. G. AUSTIN

likelihood of enormous detriment when shared care is implemented with a

parent who is abusive or who the children do not know or trust. There is
often as much detriment, however, when a child is deprived of the opportu-
nity to develop a full-bodied relationship with a loving parent, or to not have
access to the father’s social capital, as discussed later. I offer a construction of
this problem using a gatekeeping model, to help judges, evaluators, and
parents consider the benefits and liabilities of overnight care. At this time,
individual family circumstances, such as those imposed by restrictive gate-
keepers, are much more likely to be determinative of parenting time than
ideas that come from scientific theory or research.
The overnights debate sometimes hears proponents of a cautionary
approach favoring residential stability for very young children (e.g., the
child should sleep in his or her same bed or crib every night) as opposed
to relationship stability between the child and the nonresidential parent. Just
as there is not research or empirical support for opposing overnight care by
fathers, or demonstrating detriment to children of divorce, as a general-
ization, so there is a lack of support for the hypothesis of the necessity for
the stability of one residence to host overnight parenting time (Kelly & Lamb,
2000). In practical terms, separated and divorced parents with young chil-
dren are well advised to seek stability in the routines of parenting timeshares
and predictability on exchanges.

Gatekeeping and social capital

The gatekeeping model, with the related concept of social capital, can usefully
organize the discussion concerning overnights for the particular case. The
model provides a theoretical structure to understand and justify the advan-
tages and disadvantages associated with joint parental involvement, including
overnight residential care by fathers in the evaluation and adjudication of a
parenting time dispute. The professional debate on the advantages versus
disadvantages to children associated with overnights is properly viewed as
part of considering the benefits to children from joint parental involvement
and shared parenting (Nielsen, 2017).
In a child custody context, social capital refers to the benefits a child
derives from the social and psychological resources available to him or her
in a particular living environment, community, or family. Social capital is
derived from parents, siblings, extended family, peers, teachers, coaches, and
so on. It takes the form of positive role models who model trust, values,
commitment, self-discipline, and friendship. Some living environments will
be richer in the depth and breadth of available social capital. Concerns about
social capital alert evaluators not just to focus on the parents, or “parent
capital,” but also to assist the court in comparing the two alternative family
units and associated relationships that will be available to the child. This
 JOURNAL OF DIVORCE & REMARRIAGE 11

involves an ecological comparison in the vein of the theoretical work by

noted developmental psychologists (Hage, 1972).
Social capital is a general concept (Hage, 1972) with widespread applica-
tion in the social sciences literature to explain adult and child outcomes and
functioning (Field, 2003; Lin, 2001). This concept has been used by divorce
researchers to explain children’s adjustment to divorce (Amato &
Sobolewski, 2010; Hetherington, 1999b; McLanahan & Sandefur, 1994). For
instance, research on social capital has shown that children benefit in the
long term by quality relationships with both parents (Amato & Sobolewski,
2001) and fathers (Amato & Sobolewski, 2010; Flouri, 2005; Nielsen, 2013).
In addition, an extensive review of the literature shows the benefits of shared
parenting (Nielsen, 2017).
Social capital serves to explain the benefit derived from shared parenting
arrangements (see Nielsen, 2017) and why children of divorce show the best
long-term adjustment and well-being when they enjoy quality relationships
with both parents (Amato & Sobolewski, 2001). It has been used to explain
the contributions of fathers (Hetherington, 1999b). Shared parenting is
defined in the research literature as a minimum of a 35% timeshare for
fathers. Thus, the social capital effect for the benefit of children is obtained
when there is only a minimum of 5 out of 14 overnights in a 2-week
parenting time schedule. Shared parenting should not be equated with an
equal parenting time arrangement.
The social capital approach to the overnights conundrum is a different
level of analysis than a traditional approach that emphasizes attachment
theory and child-to-parent attachment security (Kelly & Lamb, 2000;
Ludolph & Dale, 2012; McIntosh et al., 2014; Solomon & Biringen, 2001).
It is more of a social psychological analysis of interpersonal relationships.
The value to the child from the parent attachment relationship can be viewed
as part of the social capital available to the child. The social capital approach
leads custody evaluators to identify advantages and disadvantages associated
with alternative parenting time options, including the issue of overnight care
by fathers. The conservative, cautious school of thought on overnights
prioritizes the residential parent’s social capital (i.e., mothers) over that of
the nonresidential parent (i.e., fathers). When a mother is opposing (or
minimizing) overnights, then she might be undervaluing the father’s social
capital, or even viewing overnights as involving negative social capital
(Hetherington, 1999b).
Part of the social capital by both parents will be their ability to support the
other parent–child relationship, or their FG. Research shows that child out-
comes are more dependent on the quality of the child’s relationships with
both parents rather than the degree of cooperative coparenting (Beckmeyer,
Coleman, & Ganong, 2014). However, high quality in gatekeeping behaviors
and coparenting will enhance the parent–child relationships due to the
12 W. G. AUSTIN

opportunity for parental involvement and providing psychosocial resources

to the child. Lamb (2014) pointed out that parents who collaborate in child-
rearing tend to have better adjusted children.
Research shows that children benefit from shared parenting arrangements
and overnights with fathers, even when there is significant conflict between
the parents, if the fathers show an effective parenting style that includes
warmth (Sandler, Miles, Cookston, & Braver, 2008). An Australian study
(Cashmore, Parkinson, & Taylor, 2008) found that even with high conflict, if
the children spent more than 30 overnights per year with their father, they
reported feeling closer to the father. It was as if overnight care provides a
buffer due to the ability of the children to enjoy more relaxed and meaningful
time with their father. In a large sample study, Amato, Kane, and James
(2011) studied the degree of conflict between parents and the type of
coparenting relationship. They found no significant differences in children’s
outcomes as a function of the degree of conflict and type of coparenting. The
findings were interpreted as showing that a “good divorce” with low conflict
is not necessary to produce good overall outcomes following divorce. This is
not to say that cooperative coparenting or FG is not likely to produce better
outcomes, but it might not be necessary. It appears good outcomes are more
likely if there is sufficient paternal involvement to produce a meaningful
relationship.
This research literature should not be interpreted to mean that quality of
coparenting and gatekeeping is not important for children. In another large-
sample study, King and Heard (1999) found that the group of children with
the poorest outcomes were most dissatisfied with their father’s level of
involvement (e.g., RG) and the quality of the coparenting relationship. The
level of conflict did not seem to be critical to child outcomes. Sobolewski and
King (2005), in studying the same sample 4 years later, found that coopera-
tive coparenting was much more strongly linked than the level of conflict to
the quality of the father–child relationship and to “responsive fathering.”
Mothers might assert (as does the new conservative school of thought on
overnight care by fathers as discussed later) that the presence of significant
parental conflict should be a key determinant if overnights are appropriate
for a young child. There is an older research literature (and limited in the
number of studies) that concluded that in situations of high conflict, shared
physical custody was likely to be harmful to children, as the children were
more likely to be caught in the middle of conflict and might be the focus of
the conflict. Nielsen (2017) recently reviewed and critically analyzed this
literature and concluded that the bottom-line conclusion was to not be
supported by the data (see Nielsen, 2017, for a review of the older studies;
e.g., Maccoby & Mnookin, 1992). In some of the older studies, shared
physical custody meant equal parenting time. Nielsen’s review of 76 studies
on shared parenting found that overall there is very little support for this
 JOURNAL OF DIVORCE & REMARRIAGE 13

common assumption that significant parental conflict meant there should be

a very cautious approach to creating a shared parenting time plan. It appears
support for this old, “trusty” hypothesis simply lacks empirical support. It
should be kept in mind that older, quality research (Hetherington, 1999a)
found that when children could be shielded from ongoing conflict, then the
children’s adjustment looked like the group of very low-conflict families.
Based on a clearer understanding of the research, mothers (or experts) who
recommend shared parenting arrangements when there is substantial con-
flict, based on the professional literature, and are engaging in URG. However,
every case depends on the facts, context, and circumstances of the case, as
well as the professional literature.
New research affirms the new position and conclusions about the research
offered by Nielsen (Elam, Sandler, Wolchik, & Tein, 2016; Fabricius, Diaz, &
Braver, 2012; Modecki, Hagan, Sandler, & Wolchik, 2015) that substantial
involvement by nonresidential fathers is important, even if there is ongoing
conflict. The degree of father involvement was the key in all of these studies.
This does not mean that an overall goal in custody disputes and child custody
evaluation should be to minimize the exposure of children to conflict.
The research is fairly interpreted that evaluations should generally should
be recommending shared parenting in every case, even if there has been
substantial parental conflict, keeping in mind that this could be only 5 out of
14 overnights. However, the research does not examine what type of alloca-
tion of decision-making authority will be best for the child. My forensic
experience suggests that some of the most intense custody disputes concern
whether there should be a joint or sole decision-making arrangement,
although usually they involve both disagreements about the parenting time-
share and decision making.

Guiding principles
I propose several principles derived from gatekeeping theory to guide eva-
luators and courts in their crafting of parenting plans concerning overnight
parenting time for young children. These principles are supported by sound
theory and empirical generalizations from the established research literature.
First, children of divorce, including young children, will likely benefit from
and show better adjustment when they experience frequent and continuing
contact with both parents. Research supports the common legislative declara-
tion on this issue. Second, when there is a risk of harm to the child, there
might be justification in limiting or restricting a parent’s timeshare, including
supervising or suspending parenting time. Issues of concern might include
lack of parental involvement by a parent and undeveloped parenting skills,
past incidents of harsh parenting, corroborated allegations of intimate part-
ner violence by one or both parents, substance abuse, and a major mental
14 W. G. AUSTIN

illness in a parent. Third, if risk of harm to a child has been demonstrated by

an evaluator, it should be explored how to best to manage the risk, bearing in
mind the very much increased risk of serious physical and psychological
harm when a very young child is subject to abuse. Fourth, if a parent (usually
the mother) is proposing that the other parent have very limited or no
overnight parenting time, then the limiting parent should describe with
behavioral specificity the nature of the risk of harm (Lamb, 2016). Fifth,
and especially with infants and toddlers, if the parent is proposing to deny or
severely limit overnights, how is that parent proposing to have the other
parent be substantially involved? Extensive parenting time during the day or
on weekends will usually be indicated. Sixth, age alone should not be a bar to
overnight care. Seventh, there will be an inverse relationship between the age
of the child and the degree of cogency in the mother’s argument against
overnight care by the father, but the analysis always needs to be case-specific
and dependent on the fact pattern. There will be instances where the father
will be the most viable candidate to be the custodial parent and where
overnight care might not be advisable for the mother.
Examples of parental assertions regarding overnights-related harms might
be very young age, the need for routine and stability, the lack of parenting
experience by the noncustodial parent, or “symptoms” of distress exhibited
by the child associated with overnight time and transitions (McIntosh et al.,
2014).

Overnights conundrum and restrictive gatekeeping

Overnights are identified in the gatekeeping model as one example of PG
(Austin, Fieldstone, et al., 2013). A mother who opposes or wishes to severely
limit the father’s overnights is asserting that overnights are harmful and will
not be in the child’s best interests. She will maintain that she is being
protective of the child. The father who is in dispute over the issue will assert
the mother is being overprotective and unnecessarily restrictive. Restrictive
mothers on the overnights issue with young and very young children might
assert the father is not sufficiently competent to handle the myriad of
parental responsibilities and child-rearing duties.
The conservative school of thought on overnight care by fathers and a
mother’s legal position that opposes or wants to severely limit overnight
care by the father in an individual custody dispute by definition represents
RG. The first generation of advocates against overnight care by fathers
until ages 2½ or 3 years of age (Baris & Garrity, 1988; Hodges, 1991), or
even until the child entered kindergarten (Awad & Parry, 1980) explained
(or justified) their positions based on an assumption of a primary attach-
ment to the mother, overlooking research on child to father attachment
that was available at the time (Lamb, 1975). The new generation of
 JOURNAL OF DIVORCE & REMARRIAGE 15

advocates for the conservative view on overnights, as discussed earlier,

does not make clear their justification analysis (McIntosh et al., 2014;
Pruett et al., 2014). They were careful not to specifically point to attach-
ment theory or their interpretation of the research. McIntosh et al. (2014)
provided a list of possible harms to the child associated with overnight
care by fathers, but without citing research, or addressing the base rate
problem on the list of behaviors of concern (e.g., the behavior of “frequent
crying” is very common with very young children).

Gender role attitudes versus perceived competency

Early maternal gatekeeping models rest partly on the assumption that gender
role attitudes affect gate-closing and gate-opening behaviors (Allen &
Hawkins, 1999; Fagan & Barnett, 2003; Rane & McBride, 2000). However,
most studies in the maternal gatekeeping research literature have been
limited to measuring attitudes, not actual gatekeeping behaviors (Schoppe-
Sullivan, Altenburger, Lee, Bower, & Kamp Dush, 2015). One study failed to
find a significant correlation between either fathers’ or mothers’ gender role
attitudes and mothers’ gatekeeping behaviors with newborns (Schoppe-
Sullivan, Brown, Cannon, & Mangelsdorf, 2008). This finding was replicated
with a study with solid methodology and relatively large sample with dual-
earner families (Schoppe-Sullivan et al., 2015).
This issue could well be different in the context of divorced families with
stay-at-home mothers, or with never-married mothers, so that the traditional
gender role position on parenting time might be asserted. It would seem that
to assert fathers should not have overnights because of gender would seem
inconsistent with family law in all states. Such a position has the ring of a
tender years presumption (Mason, 1994).
An issue in contested parenting time cases with very young children is the
perception of fathers as inexperienced and possessing questionable compe-
tence in being able to care adequately for infants and toddlers. It often will be
the case that fathers will be on a “learning curve” when there has been a
traditional arrangement regarding the exercise of parental duties and respon-
sibilities. It also will be the case that fathers have been active and equally
involved parents with infants and toddlers. Schoppe-Sullivan et al. (2015)
found that mothers’ expectations regarding the level of acceptability in
parenting skills and also mothers’ level of psychological functioning were
significant predictors of their gate-closing behaviors.
Another factor that seems important in predicting mothers’ gatekeeping
and propensity to share the child is parental self-efficacy, or the parents’
confidence in their parenting ability. It is expected that with younger chil-
dren fathers will have lower levels of parenting self-efficacy (Hudson, Elek, &
Fleck, 2001), but there should be wide variation with fathers on this issue.
16 W. G. AUSTIN

Parenting self-efficacy is expected to be associated with better parenting and

child development (Prinz & Jones, 2005). Schoppe-Sullivan et al. (2015)
posited that mothers with more confidence in their parenting might be
more willing to involve fathers, or to open the gate wider, but they found
the reverse to be the case, with more RG.
One cannot analyze the advisability of overnight care for fathers without
considering the related issue of the importance of father involvement in child
development (Lamb, 2010) and how to facilitate father involvement in care of
infants and young children. Mothers are generally much more involved in
parenting the very young compared to fathers (Schoppe-Sullivan et al., 2008).
Early father involvement (e.g., in infant care) has been found to predict the
level of involvement with older children (Doherty, Erickson, & LaRossa,
2006), or that it tends to persist (Shannon, Tamis-LeMonda, & Cabrera,
2006). With the separating and divorcing population, if the mother is putting
forth a conservative position on overnights, then based on the breadth of the
research literature, she needs to juxtapose a proposal for how to facilitate the
father’s substantial involvement with the child.

Justification analysis
With a gatekeeping analysis in the context of a custody dispute, parents who
are not supportive of the other parent and want to restrict parenting time or
access need to be asked to explain, or justify, their position on the parenting
plan. Custody evaluators and courts likewise need to conduct a justification
analysis in light of the facts, context, circumstances, professional literature,
and practical considerations.
If an evaluator determines there is URG, then this has implications for
parenting time recommendations. It would be factored into the evaluator’s
opinions on the overnights issue and the overall structure of the parenting
plan. A conclusion about a pattern of URG on the overnights issue, and
parenting time generally, might result in an evaluator recommending a larger
share of parenting time for the father.
Austin (in press) presented a suggested generic forensic protocol for
conducting a “justification analysis” for PG that could then be adapted to
specific forensic contexts with varying salient issues in a custody dispute. The
protocol was presented as sufficient for an analysis, but all of the elements
were not necessary. A preliminary protocol for a justification analysis for RG
on young children and overnight care is proposed:

(1) Describe the case context, circumstances, and key facts.

(2) Assess all of the identified factors in statutory and case law, as they
might be relevant to the overnights issue; be aware that it likely will be
 JOURNAL OF DIVORCE & REMARRIAGE 17

problematic to emphasize gender as a basis for recommending a

residential parent.
(3) The restrictive parent (usually the mother) should identify with beha-
vioral specificity her reasons for a stance of PG, including her concerns
associated with increased care and overnight care by the father, and a
detailed risk assessment for the child’s welfare. The recommendation is
a “show me the harm” with overnights provision.
(4) Explore ways to structure access and parenting time by the father that
adequately address the mother’s concerns and effectively manage the
perceived risk (e.g., psychotherapy, parenting education, or parenting
coach for one or both parents).
(5) Consider how to phase in increased parenting time for the father, or
a “step-up” component to a recommended parenting plan for young
children, if appropriate, based on the justification analysis (Pruett
et al., 2016).
(6) Examine the restrictive parent’s concerns about harm and supporting
data relative to the relevant professional literature; note there are two
schools of thought in the literature on the overnights issue; note there
is a lack of research to support the position of a blanket restriction on
father overnight care for very young children (Warshak, 2000, 2014).
(7) Conduct a risk assessment associated with overnights. Factors to be
considered include the following:

● Specific risk and protective factors from literature and context of the
case.
● The age of the child and developmental concerns.
● Both parents’ past patterns of involvement in child care and child-
rearing with the child and any siblings.
● Both parents’ level of parenting skills and quality of parenting.
● Both parents’ psychological functioning, particularly as related to gate-
keeping behaviors (Schoppe-Sullivan et al., 2008, 2015).
● The knowledge about parenting and coparenting for each parent.
● The employment status of the parents and availability: Are these two
working parents or do they anticipate that one will be a traditional stay-
at-home parent?
● The level of parental conflict and available means to shield the child
from the conflict.3
● Presence of any “key variables” associated with risk of harm with over-
nights (past interpersonal violence, substance or alcohol abuse, major
mental disorder, harsh parenting).

(8) Evaluate the father’s response to the mother’s legitimate concerns.

18 W. G. AUSTIN

(9) Evaluate the mother’s response to the father’s legitimate concerns

about her PG.
(10) Consider interventions that are available to address either of the
parent’s legitimate concerns: parenting classes, parenting coach, time-
limited supervised parenting time, extended family support and assis-
tance, and mental health treatment.
(11) If the investigative data, context, and circumstances call for a conser-
vative approach to the overnights issue, then what is the mother’s
proposed plan for the father to be substantially involved with the
child (Lamb, 2012)?

Recommendations
I strongly recommend that the framework, or guidelines, being recom-
mended by McIntosh et al. (2014) not be used by custody evaluators or
judges in considering custody and parenting time plans for young and very
young children for a number of cogent and practical reasons. First, the
guidelines lack empirical research support to show that overnight care by
fathers is harmful to children, including infants. Second, the guidelines lack a
cogent, research-based theoretical rationale, as they appear to be based on a
primary attachment parent assumption. The guidelines also place the child to
father attachment relationship at risk for harm. Third, they are inconsistent
with theory and research that establish the importance of the involvement by
both parents for the child’s long- and short-term adjustment. Fourth, they
are not practical, as they assume that a very conservative schedule on
parenting time and overnights would be reexamined at a future time so
litigation would be required to modify either a temporary or permanent
court order. If the very conservative plan is implemented in a temporary
order, then it would seem it makes litigation for the creation of a permanent
order and parenting time much more likely. The new guidelines by Pruett
et al. (2014), if adopted by jurisdictions or practitioners, would appear to
have a built-in litigation-engendering function. Fifth, the guidelines are
gender-biased in favor of mothers, thus making them inconsistent with
state domestic relations laws. Sixth, they are inconsistent with the common
legislative declaration that encourages the “frequent and continuing involve-
ment by both parents.” They actually create a hindrance to father involve-
ment. Seventh, they potentially create an incentive for mothers to fuel
conflict as a way to prevent father overnight care, as the guidelines call for
limiting father overnight care if there is significant parental conflict. As noted
earlier, the research literature shows that children of divorce will generally
benefit from joint parental involvement and shared parenting, even if there is
ongoing parental conflict. Finally, the guidelines represent RG (by guidelines)
 JOURNAL OF DIVORCE & REMARRIAGE 19

that usually will not be justified based on the facts, context, circumstance,
and professional literature.

Notes
1. The term protective gatekeeping was originally proposed by Drozd in considering
gatekeeping in the context of allegations of intimate partner violence in child custody
disputes (Austin & Drozd, 2006).
2. For other reviews of the research on the effects of overnight care by fathers on child
outcomes, see Nielsen (2014) and Fabricius and Suh (2017).
3. The reader is referred to recent research and research reviews that show the benefit to
children of divorce from joint parental involvement and shared parenting, even with
the existence of substantial parental conflict (Fabricius & Suh, 2017; Nielsen, 2017;
Sandler, Miles, Cookston, & Braver, 2008).

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