A BEHAVIOURAL SCIENCE AND LEGAL ANALYSIS OF ACCESS TO THE CHILD IN THE POST-SEPARATION/ DIVORCE FAMILY

Aug 21, 2026

Access rights after divorce or separation remains an underdeveloped area of legal analysis, often treated as a secondary issue within adversarial proceedings. The work examines how the “emotional divorce” of parents can persist beyond the dissolution of marriage, turning access battles into a continuing struggle that uses children as indirect communication vehicles. It combines behavioural science perspectives with legal analysis, covering psychological impacts on children, parental and court roles, and how psychological evidence should be received when determining or modifying access.

LanguageEnglish

CategoryResearch & Report

FormatPDF

Pages66

Reading Time2 h 46 min

AccessFree to download

I. Introduction

Purpose and legal-behavioural approach

II. Behavioural Science Analysis of Access

The impact of separation or divorce on the child

Psychological theories and attachment effects

# A BEHAVIOURAL SCIENCE ANDLEGAL ANALYSIS OF ACCESS TOTHE CHILD IN THEPOST-SEPARATION/DIVORCEFAMILY Julien D.Payne*and Kenneth L.Kallish** ## I.INTRODUCTION Access rights following divorce or separation continue to be a sadlyneglected area of legal analysis.They are commonly treated as anafterthought in the adversarial process.All too often,children are theinnocent victims of the unresolved emotional divorce'"of their parents.When the emotional divorce of the spouses survives the judicialdissolution of the marriage,the opportunities for parental abuse of accessrights are legion.Battles through the medium of the children continuewithout abatement,either in or out of court.' This paper will examine access in the context of the behaviouralsciences and the law.It will consider the psychological impact thatseparation or divorce has on the child,and the functional significance of 'Elkin,Custody and Visitation-A Time for Change.14 Conc.CTS.REV.(no. 2)iii,at v(1976):"Let us be more aware that custody and visitation conflicts are notusually the issues,but are often a smokescreen that hides other more relevant issueswhich show that one or both parties are still connected and are working on theiremotional divorce although unsuccessfully."See also Littner,The Effects on a Chuld ofFamily Disruption and Separation from One or Both Parents,11 R.F.L.1,at 20-21(1973): Frequently after a divorce the battles between the parents tend tocontinue.Sometimes they increase.They may now be fought around otherissues such as economic ones,but the same emotional conflicts will bepresent.The child therefore is even more likely to symbolize for both parentsthe battlefield on which they will continue to skirmish. When this occurs it becomes important to help the parents establishdirect communication with each other so that they stop using the child as avehicle of indirect communication.Such direct communication between thedivorced parents will also help them avoid being manipulated by the childshould he attempt to play one against the other. Sometimes it becomes clear that,either because of pre-existingproblems or because of the pressures of the divorce or because of the tensionsof the post-divorce situation,the child has emotional difficulties for which hemay need professional mental health help.It then may be necessary to helpthe parents recognize this fact and assist them in implementing it. access,together with the roles of the parents and the courts,as viewed bythe behavioural scientist.It will then focus on a legal analysis of access—its meaning,whether it exists as the right of the parent or child,thecriteria used when granting,refusing,or changing access rights,therights and duties of the parents,the judicial reception of psychological orpsychiatric evidence,and the courts'perception of their role when facedwith questions relating to access. ## II.BEHAVIOURAL SCIENCE ANALYSIS OF ACCESS ### A.The Impact of Separation or Divorce on the Child Psychological research has developed theories of child develop-ment,all of which are affected by maternal or paternal deprivationresulting from a breakdown of the family unit.Few behavioural scientistswould deny that the withdrawal of either parent from the child's lifeaffects the developmental processes of the child and often threatens thechild's emotional well-being. One of the better-known theories focuses on the Oedipus complex.This theory suggests that young children between the ages of three andfive,loving the parent of the opposite sex more than the other,unconsciously wish the other parent dead.The child usually worksthrough these fantasies,finally accepting and loving both parents.However,if the parent of the same sex withdraws during this period,andespecially if the departure is accompanied by hostility between theparents,the child,with the tendency to fantasize,may feel he or shecaused the separation,and may encounter significant disabilities onachieving adulthood.The united famil

FAQs

Why are access rights after divorce often neglected in legal analysis?

The text states that access rights following divorce or separation are commonly treated as an afterthought in the adversarial process, receiving insufficient analytical attention.

How can unresolved parental emotional conflict affect access arrangements?

When the emotional divorce survives the legal dissolution, battles over access may continue, sometimes escalated through other issues, with children used as vehicles for indirect communication.

What behavioural science factors are used to explain the child’s psychological impact?

The document cites theories of child development, including the Oedipus complex and attachment research, to explain potential guilt, distress, anxiety, depression, or delinquent behaviour depending on developmental stage and relationship quality.

Aug 21, 2026

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