No one disputes that children, based upon their compelling need, have the right to a permanent home. And when safety can be assured, the birth family comes first. This includes the extended family of capable blood relatives.
Time, however, is not on the side of a developing child. Courts face a difficult dilemma when required to choose between the birth family, viable kin, and a foster family who has cared for the child over time and wishes to adopt.
In my book, Attachment and Bonding in the Foster and Adopted Child, I have labeled that point “bonding,” and defined it: a significant reciprocal attachment which both parties want and expect to continue, and which is interrupted or terminated at increased peril to the parties involved.
Four objective ways to prove bonding in court are offered: time in place, completion of a research-based bonding checklist, demonstrating the reciprocal connection through prolonged observation, and obtaining testimony from the community at large.
The importance of defining a significant attachment stems from the serious and lasting harm that may follow when bonded relationships are disrupted. Multiple studies have demonstrated a statistically significant correlation between severed bonds in childhood and a large increase in later mental illness, crime, and homelessness.
Courts are beginning to consider bonding seriously. While they may have traditionally favored genetics over the emotional and psychological bonds, an increasing number of jurisdictions have begun to shift that stance to better serve the child’s best interests. Though the consideration is far from universal, courts are taking note of the significant impact that maintaining or breaking those bonds can have.
Quite simply, courts are recognizing that children may be better served when they remain with the people to whom they have formed close psychological and emotional bonds, rather than given to others with whom they simply share a biological relationship.
When deciding where best to place a child, courts today are developing a vocabulary of their own to define bonding. Appellate courts have used terms like “continuity of care,” “risks of transition,” “significant attachment,” “a father in the terms that matter most,” and “significant emotional bond.” The precise written language used by these courts defines bonding legally and can be brought to the attention of trial courts. For those interested, a listing of appellate court decisions from across the country is provided in my book.
As a result of continuing research using brain scans, bonding can no longer be referred to as merely psychological. How the brain develops hinges on a complex interplay between the genes one is born with and the experiences one has. Clear and demonstrable physical evidence has emerged suggesting that the structure of the brain is not simply genetically determined, but depends on activity, experience, attachment, and stimulation.