Attachment Theory Goes to Court

Attachment Theory, Family Courts, and the Best Interests of the Child

Attachment theory has long influenced child protection and family law parenting decisions, but its application in family courts has often been fraught with misunderstanding. The 2021 consensus paper Attachment Goes to Court by Forslund, Granqvist, van IJzendoorn and colleagues sought to clarify how attachment research should be used in legal contexts. At the same time, recent amendments to the Family Law Act 1975 in Australia have reshaped the way courts interpret the “best interests of the child.” Together, these developments mark a significant shift toward evidence‑based, child‑centred decision‑making.

Misuse of Attachment in Courts

The paper highlights several recurring problems. Courts frequently conflate attachment with attachment quality. Almost all children form attachments to caregivers, but the quality of those relationships varies. Misunderstanding this distinction has led to flawed reasoning, such as assuming insecure attachment means a child is at risk or that secure attachment guarantees positive outcomes. Another common error is the belief that children can only form a primary attachment to one “psychological parent.” In reality, children are capable of developing secure attachments to multiple caregivers, and these networks of relationships often serve as protective factors.

The authors also caution against overreliance on single behaviours, such as crying, to infer attachment security. Attachment classifications (secure, avoidant, resistant, disorganised) are useful in research but should not be treated as deterministic predictors of individual outcomes in court. Instead, the focus should be on caregiver behaviour—sensitivity, responsiveness, and the absence of abuse—as these are more reliable indicators of a child’s welfare.

Principles for Family Court Practice

The consensus statement advances three guiding principles for courts:

1. Children need familiar, non‑abusive caregivers. Safety and protection from harm must be paramount.
2. Continuity of good‑enough care matters. Stability in caregiving arrangements is more important than perfection.
3. Networks of attachment relationships are beneficial. Children thrive when they can rely on multiple caregivers, including extended family and community.

Attachment assessments, the authors argue, are best used to guide supportive interventions rather than to decide custody outright. Courts should avoid simplistic interpretations and instead consider the broader caregiving context.

Family Law Act Amendments

In 2023–24, Australia amended the Family Law Act 1975 to simplify and clarify the “best interests of the child” test. The amendments removed the presumption of equal shared parental responsibility, which had often been misapplied as a starting point for custody decisions. Instead, courts are directed to focus on the child’s circumstances, prioritising safety, stability, and developmental needs.

The amendments also explicitly recognise Aboriginal and Torres Strait Islander kinship structures and cultural traditions. This aligns with attachment theory’s emphasis on networks of relationships and the protective role of extended family. By broadening the definition of family, the law acknowledges that children’s attachments extend beyond nuclear parents to include kin and community.

Convergence of Law and Science

The principles outlined in Attachment Goes to Court resonate strongly with the new legislative framework. Both stress the importance of safety, continuity, and multiple caregiving relationships. Both reject rigid presumptions—whether about a single psychological parent or equal shared responsibility—and instead advocate for flexible, child‑centred approaches.

For example, the paper’s warning against misusing attachment classifications parallels the law’s simplification of best interests factors. Courts are encouraged to avoid deterministic labels and instead weigh practical considerations: Is the caregiver safe? Is the care continuous? Are cultural and relational networks preserved?

Implications for Practice

Together, these developments encourage family courts to adopt a more nuanced, evidence‑based approach. Judges and practitioners must resist the temptation to rely on simplistic measures of attachment or outdated presumptions. Instead, they should evaluate caregiving behaviour, ensure continuity, and recognise the value of multiple attachments. For Indigenous children, this means respecting kinship ties and cultural practices as integral to their best interests.

The convergence of attachment research and legislative reform offers a more balanced framework for custody and protection decisions. It acknowledges the complexity of children’s relationships while keeping safety and stability at the forefront. Ultimately, this alignment strengthens the capacity of family law to serve its central purpose: safeguarding the welfare and development of children.