TBA Law Blog

Posted by: Rachel Roberson on Apr 1, 2018

Journal Issue Date: Apr 2018

Journal Name: April 2018 - Vol. 54, No. 4

Science Says It’s in the Child’s Best Interests

Unless an immediate familial relationship exists, Tennessee children are afforded no constitutional avenue to see nonparent caregivers even when the child is significantly “attached,” as described by the psychological doctrine of attachment,[1] to that caregiver. Established in the mid-1900s, the attachment doctrine contradicts the theory that a child only bonds with his or her mother. All humans possess an innate desire to seek proximity with receptive, caregiving attachment figures to maintain security and support. Interactions with these attachment figures provide long-lasting and affirmative representations of self and others for the child. This universal doctrine is well accepted in the child development community and promotes the concept that children gravitate toward any caregiver, regardless of gender, but this attachment is typically limited to one to two caregivers. Overall, a healthy attachment figure is critical in years of immaturity — infancy, childhood and adolescence — and essential to a developmental foundation for empathy, the ability to manage stress, or how to accept no.

Attachment behavior takes form as any behavior that results in a child attaining proximity to some other person, ultimately providing the child with a familiar and responsive environment. This attachment is largely formed with those individuals who responsively play and communicate with the infant, generally through caregiving. Although humans have a natural predisposition to attach to an individual caretaker, exactly to whom one attaches is not biologically wired, and thus the attachment figure may include a stepparent, grandparent or another unrelated caregiver.

Numerous studies highlight the consequences of disrupting an attachment relationship — both momentarily separating the child from his caregiver and the longitudinal impact of completely cutting out an attachment figure. Foundational observations make clear that children often communicate their despair when removed from caregivers by completely withdrawing themselves and muting emotions altogether because of their inability to verbalize pain. These findings contradict the popular and optimistic stereotype that all young children will forget and that their yearning will eventually subside simply because they are not voicing any concern. A young child’s experience of separation from, or loss of, an attachment figure is prone to evoke crucial emotional processes, and psychological scarring is often formed, which leads to severe dysfunction in later life. Severing the attachment relationship may be as traumatic psychologically as being severely wounded or burned is physiologically.

Disrupting an attachment relationship is not to be confused with the aftermath of parental abandonment. Although both certainly affect a child’s development, disrupting attachment with a caretaker and parental abandonment — such as extreme neglect or abuse — are considered two separate traumas with both leaving some type of life-altering effect on the child. Even though the extent of damage varies with the individual child after a trauma, experts know that the damage related to the first trauma — parental abandonment — will only be compounded by any subsequent trauma, such as severing a healthy attachment relationship with a caregiver. In fact, nonparents often step in because of a biological parent’s abandonment, and thus some child psychology experts strongly recommend that a child needs their adult caregiver to help combat preexisting and future issues related to a parent’s abandonment.

Longitudinal studies correlating insecure or unhealthy attachments to various hardships later in life, such as unhealthy intimate relationships,[2] anxiety and depression,[3] classroom misbehavior[4] as well as vulnerability to future criminal behavior,[5] addiction,[6] unemployment[7] and mental illness.[8]

Healthy attachment relationships are fundamental for a child’s best interests, yet there is no statutory requirement for Tennessee trial courts to consider a child’s attachment relationship with a nonparent. Additionally, Tennessee’s only current visitation statute for non-blood related caregivers, Tenn. Code Ann. 36-3-303 Stepparent Visitation, is unconstitutional because it requires no presumption or procedural safeguard for parental rights and thus needs updating. This obvious need to amend is only compounded by the ever-increasing number of nontraditional families on domestic dockets across the country. To truly prevent substantial harm to a child’s wellbeing, Tennessee must adopt a nonparent visitation statute recognizing the attachment doctrine. It should do this not because a nonparent should have more or fewer rights than a parent, but because certain psychological principles dictate better protection for the well-being of the child who has formed meaningful attachments to a nonparent. The visitation conflict between a nonparent and biological parent is only incidental; rather, nonparent visitation provides an avenue for protecting the child’s best interests.

If Challenged, Tennessee’s Stepparent Visitation Statute Would Not Meet Constitutional Muster Pursuant to Federal Law

Troxel v. Granville, 530 U.S. 57 (2000) provides that parents have the constitutional right to make decisions concerning the care, custody and control of their children, and the parents’ right is paramount to any custodial interest asserted by nonparents. In Troxel v. Granville, the United States Supreme Court held a Washington statute that permitted any person to petition for visitation at any time facially unconstitutional because it infringed on a fit parent’s fundamental rights. As such, the court strictly outlawed statutes offering no presumption that a fit parent acts in the child’s best interest. While judges are now required, pursuant to Troxel, to give some weight to a fit parent’s preference, federal law does not preclude nonparental visitation with the child.

Tennessee’s vague stepparent visitation statute has never been amended and requires only two elements — that a divorce or separation must occur, and then the stepparent must prove an undefined “contribution or support” of the child prior to a determination of the child’s best interests. There is no presumption of parental fitness as required by Troxel and, as a result, there is no need to preserve the existing stepparent statute in its current form because it already seems to be inconsistent with existing law. Instead, Tennessee should allow nonparents to pursue visitation upon a finding of an existing attachment relationship between the child and nonparent.

Several Other States’ Visitation Statutes Align with the Attachment Doctrine

Unlike Tennessee, other states recognize that children can form attachment relationships with their nonparent caregivers, and these relationships play an essential role in their development needs.[9] This realization does not infringe upon biological parental custody, but simply affords the child with a remedial access to continue a relationship with a significant nonparent — be it grandparent, stepparent, aunt, sibling or even a nanny. Awarding visitation is obviously not as drastic as parental termination or custody determinations, and several state laws use statutory or equitable power to grant visitation to nonparents in cases involving cohabitation, loco parentis, or a “psychological parent.”[10] Montana,[11] South Dakota,[12] California,[13] Virginia,[14] Colorado,[15] Louisiana,[16] Arizona,[17] Oregon,[18] Pennsylvania,[19] Wisconsin,[20] New Jersey,[21] Georgia[22] and Illinois[23] all permit nonparent visitation when a substantial personal relationship between the child and nonparent exists. Several of these states further acknowledge that abruptly ending these emotional ties through denial of visitation can cause severe psychological harm, stressing continuity and stability in a child’s life. Granting nonparental visitation is necessary to prevent this harm.

The American Bar Association and American Academy of Matrimonial Lawyers endorsed a certified standard emphasizing the child’s individual rights, not just parental rights, in order to fully guard the child’s well-being.[24] Funded by the U.S. Department of Health and Human Services, the National Child Traumatic Stress Network discusses the trauma of negative attachment experiences and further promotes helpful fact sheets and tips for judges to ease that childhood trauma.[25] Pamphlets and guidelines are certainly helpful but are, of course, subordinate to the law, and certainly not suggested consistently in our visitation statutes.

Strangely enough, Tennessee’s other nonparent visitation statute — Tenn. Code Ann. 36-6-306, Grandparent Visitation — is vastly different from our stepparent visitation statute. Tennessee’s grandparent visitation statute abides by Troxel because it contains a threshold requirement preventing the State from automatically assuming the child’s best interests despite the parent’s wishes. Parental rights are thus afforded a procedural protection. More notably, the statute also expressly protects the child by requiring courts to look at several factors resembling the attachment doctrine.

Centered on a “significant existing relationship” between the child and grandparent, Tennessee’s grandparent visitation statute is parallel to the attachment doctrine in which a significant relationship exists when grandparent resided with or was full-time caretaker of the child for at least six consecutive months or had frequent visitation with the child for at least one year. Further, grandparents must prove a specific period of quality caregiving similar to security found only in attachment relationships. Echoing the attachment theory, the statute recognizes that severance or severe reduction of the relationship is likely to occasion substantial emotional harm to the child. After the relationship is determined, courts then consider factors such as the length and quality of the relationship, the grandparent’s role, the emotional ties of the child to the grandparent, and the child’s preference. These factors highlight attachment characteristics — for example, a child’s preference can indicate an attempt to remain in proximity to an attachment figure or when preexisting visitation or habitation equates to caregiving and dependence. But allowing visitation with only grandparents is not enough because science proves that children need their attachment relationships regardless of any biological connection, and to do otherwise only perpetuates substantial harm. Further, there is a recent shift in our higher courts paving a way for a broader class of petitioners to request visitation notwithstanding familial ties.

Numerous Tennessee court decisions support the concept of attachment with nonparents. In White v. Moody,[26] the Tennessee Court of Appeals compared a stepfather’s role to the biological father’s role. Though neglect or abuse was not a factor, the court still terminated the biological father’s parental rights after finding the daughter felt no connection with her father. Relying on a psychologist’s evaluation, the court found that the 11-year-old child did not long for a relationship with her father because that void was filled by her stepfather. She developed a strong attachment to her stepfather resulting from the day-to-day attention he paid to her physical care, nourishment, comfort, affection and stimulation. Even 15 years ago, the court underlined the evolution of the best interests concept “from legal discourse into popular culture. What is best for children depends on values and norms upon which reasonable persons can differ.”[27]

Recently, the Tennessee Supreme Court anticipated the psychological and physiological consequences on three children after potentially disrupting attachment relationships with their individual caregivers — both their foster parents and biological parents in In re Gabriella D.[28] At four years old, one minor was placed with her foster parents for two years until the biological mother sought to regain custody, which resulted in a two-year test period on her parenting. After the children resided with the mother for two years, the foster parents petitioned to terminate her parental rights. In the termination hearing, the court considered evidence of how the first-grade girl responded to separation from her foster parents, explaining how she “began acting out, and changed from being talkative and happy to being tense, stiff, nervous and anxious” in the classroom as well as “completely shutting down” and hoarding food at the foster parents’ home in preparation for the split-up.[29] The court then considered how the girl was also attached to her mother, who was now sober, employed, and actively caring for the child’s daily needs for two years, and further relied on expert testimony on how removing the children from her would be extremely traumatic. The testifying child specialists first examined the existing healthy attachment relationships with both parties before automatically prioritizing the mother’s biological connection to the children.

Of course, these cases demonstrate a drastic legal outcome because the petitioner is asking the court to completely strip away parental rights to replace that biological parent with a nonparent. Visitation proceedings for nonparents, however, do not require such far-reaching conclusions, but instead incorporate a limited analysis using psychology fundamentals. The trial court need not dive into a threshold elimination of the parent to allow time for the nonparent because nonparents are not asking for a total removal of the biological parent. Instead, nonparents are simply asking the court to reinforce stability and security in the child’s life through visitation.

Other states have adopted some form of nonparental visitation. States are redefining the family unit and not strictly observing biological or marital ties between the petitioner and child. The rights of natural parents are deeply rooted, but this legal shift recognizes that parental rights must be balanced with the child’s individual psychological safety, and thus our legal obligation may require unconventional approaches in order to adequately protect the child. Tennessee’s establishment of Infant Courts and increased reliance on child development experts acknowledge today’s nontraditional, but extremely common, family units and communal parenting. These changes purport to prevent substantial harm by fostering security and consistency in the children’s lives. Nonetheless, our state limits nonparent visitation to stepparents and grandparents. This restraint does not match the national trend among other states’ broader visitation statutes. To actually protect kids in today’s mobile society, especially those in nontraditional families, the law needs to keep up with established, farseeing child psychology and adopt a nonparental visitation statute centered on attachment relationship elements, thereby disregarding any biological connection for standing to petition.

A Troxel-approved nonparent visitation statute must also reflect well-founded psychological truths — secure attachment relationships with nonparent caregivers should be preserved and disrupting these bonds will likely render substantial harm. Tennessee law should promote nonparent visitation with any secure attachment figure — blood-related or not — because accepting basic child psychology is in the child’s best interests.


  1. John Bowlby, Loss Sadness and Depression: Volume III of Bowlby’s Attachment and Loss Triology (1980).
  2. Jeffry A. Simpson, “Influence of Attachment Styles on Romantic Relationships,” 59 J. of Personality & Social Psychology, 971-980 (1990).
  3. Lee A, Hankin BL., “Insecure Attachment, Dysfunctional Attitudes, and Low Self-Esteem Predicting Prospective Symptoms of Depression and Anxiety During Adolescence,” 38 J Clin. Child Adolesc. Psychology, 219 -231(2009); Jinyao Y, Xiongzhao Z, Auerbach RP, Gardiner CK, Lin C, Yuping W, Shuqiao Y., “Insecure attachment as a predictor of depressive and anxious symptomology,” 29 Depress Anxiety, 789-96 (2012).
  4. David Colley, Paul Cooper, Attachment and Emotional Development in the Classroom: Theory and Practice (2017).
  5. Larry J. Siegel, Criminology: Theories, Patterns and Typologies, 160 (13th ed. 2016).
  6. Frode Thuen, Kyrre Breivik, Bente Wold & Grethe Ulveseter, “Growing Up with One or Both Parents: The Effects on Physical Health and Health-Related Behavior Through Adolescence and into Early Adulthood,” 56 J. of Divorce & Remarriage 6, 451-474 (2015); Kristin M Caspers, Rebecca Yucuis, Beth Troutman and Ruth Spinks, Attachment as an Organizer of Behavior: Implications For Substance Abuse Problems and Willingness to Seek Treatment, Substance Abuse Treatment, Prevention, and Pol’y (1996).
  7. de Goede, Martijn et al., “Effects of Parental Divorce and Youth Unemployment on Adolescent Health,” 29 Patient Education and Counseling, 269-276 (1996) (cited in Jude Cassidy, Phillip R. Shaver, Handbook of Attachment: Theory, Research, and Clinical Applications (2nd ed. 2008)).
  8. M.L. de Jong, “Attachment, Individuation, and Risk of Suicide In Late Adolescence,” 21 J. Youth Adolescence 357–373 (1992).
  9. Ayelet Blecher-Prigat, “Rethinking Visitation: From a Parental to a Relational Right,” 16 Duke J. Gender L. & Pol’y 1, 16 (Jan. 2009).
  10. Middleton v. Johnson, 369 S.C. 585, 633 S.E.2d 162 (Ct. App. 2006); Surles v. Mayer, 48 Va. App. 146, 628 S.E.2d 563 (2006); Gulla v. Fitzpatrick, 408 Pa. Super. 269, 596 A.2d 851 (1991).
  11. Mont. Code Ann. § 40-4-228 (2009).
  12. S.D. Codified Laws § 25-5-29 (2017).
  13. See e.g., Chalmers v. Hirschkop, 152 Cal. Rptr. 3d 361, 370 (Cal. App. 1st Dist. 2013), as modified (Feb. 6, 2013) (discussing Cal. Fam. Code Ann. § 3101).
  14. Ohio Rev. Code Ann. § 3109.051 (2014).
  15. Colo. Rev. Stat. Ann. § 14-10-123 (2012).
  16. La. Civ. Code Ann. art. 136 (2014).
  17. Ariz. Rev. Stat. Ann. § 25-409 (2013).
  18. Or. Rev. Stat. Ann. § 109.119 (2017).
  19. T.B. v. L.R.M., 874 A.2d 34 (Pa. Super. 2005).
  20. Wis. Stat. Ann. § 767.43 (2007).
  21. Moriarity v. Bradt, 827 A.2d 203 (N.J. 2003).
  22. Luke v. Luke, 634 S.E.2d 439 (Ga. Ct. App. 2006).
  23. 750 Ill. Comp. Stat. Ann. 5/602.9 (2017).
  24. Mark Henaghan, “What Does a Child's Right to Be Heard in Legal Proceedings Really Mean? ABA Custody Standards Do Not Go Far Enough,” 42 Fam. L.Q. 117 (2008); Linda D. Elrod, “Client-Directed Counsel for Children: It’s the Right Thing to Do,” 27 Pace L. Rev. 869 (2007); Linda D. Elrod, “Raising the Bar for Lawyers Who Represent Children: ABA Standards of Practice for Custody Cases,” 37 Fam. L.Q. 105, 115 (2003).
  25. Complex Trauma Resources, http://www.nctsn.org/trauma-types/complex-trauma/resources, (last visited Nov. 10, 2017).
  26. White v. Moody, 171 S.W.3d 187 (2004).
  27. Id. at 193.
  28. In re Gabriella D., 2017 WL 4324959 (Tenn. Sept. 29, 2017).
  29. Id. at *9.

Rachel Roberson RACHEL ROBERSON is a third-year law student at Belmont College of Law, pursuing the Belmont Health Certificate with additional interests in family and employment law. With a bachelor’s degree in molecular biology, Roberson worked in regulatory affairs at Vanderbilt Eye Institute and Sarah Cannon. During law school, she has interned with the general counsel at Metro General Hospital, Middle District of Tennessee, and 21st Judicial District of Tennessee. She is grateful to be a future member of the Tennessee Bar and would like to thank the Hon. James G. Martin III, of the 21st Judicial District, Marianne Schroer of Williamson County CASA, and Belmont Law Professors Debbie Farringer and Ellen Black for their guidance in visitation laws and policies.