"The child, for the full and harmonious development of his or her personality, should grow up in a family environment, in an atmosphere of happiness, love, and understanding….”
Bonding Must Be Clearly Defined
The extensive research defining bonding has been laid out in Chapter Two. In the following paragraphs, bonding is defined in ways that the attorney can use effectively in court. The dictionary defines bonding as a unique relationship between two people, enduring for a long time, even a lifetime. Based upon a thorough review of the research in Chapter Two, we have expanded this definition and are repeating it here.:
Bonding is a significant reciprocal attachment which both parties want and expect to continue, and which is interrupted or terminated at considerable peril to the parties involved. Humans bond by sharing important daily life events over time, everyday events such as eating, sleeping, and playing together.
Legislation, case law, and research provide more detailed and specific definitions which we have also presented earlier. We are repeating them here. Any one of the following standards is sufficient to verify bonding.
Welfare policy: Family identification is a standard contained in the Child Welfare Manuals of many states. As state policy, this definition carries legal weight. It calls on the collective wisdom of the extended family, the school, neighbors, the church, even the work place. How does the larger community view the relationship? Do they perceive this child as a member of the foster/adopt family?
Federal and state law: Time in place is a factual way to measure bonding. In a parent-child setting, bonding is likely after three months, probable after six and almost certain after 12 months. This definition is reflected in both federal and state laws. (See Appendices A and B.)
The federal Adoption and Safe Families Act (ASFA, 1997) provides a strong legal argument in favor of bonding, even over blood kinship. When it can be proven, bonding outweighs kinship. In his or her brief, the attorney can cite all of the three-, six-, and 12-month timelines contained in federal and state laws as evidence of the legislative concern that bonded relationships be honored. Further, the attorney can make the point that the law is designed to protect the most vulnerable party, in this case, the child. The right of the child to physical and mental health and safety supersedes all other rights, including the right of the birth parents to possession. The child’s best interest comes first. “The new statute now stresses that the child’s health and safety shall be the paramount concern in determining what is reasonable, and consistent with the plan for timely permanent placement of a child.” (ASFA Summary, www.casanet.org).
Case law: Many appellate court decisions have favored the preservation of in disputed permanent placements. The precise written language used by these courts defines bonding legally and can be brought to the attention of trial courts. Appellate court language may be used as a standard. For a list of recent appellate court decisions, see Appendix C.
Behavior: The behavior of the child is another way to determine whether bonding has occurred. Behaviors such as copying adult mannerisms and habits, interest and attentiveness, physical contact, joy, appropriate protest and anger, and the need to stay close (among many other behaviors) have been shown to document the presence of bonding. Developmental and psychological research heavily supports this definition. The Groves Bonding Checklist in Appendix F can be completed by a mental health professional and presented in court.
Lifetime commitment: Bonding is reciprocal. Still another way to measure bonding is to present and evaluate the promise expressed by the actual or potential parents. Foster parents have already demonstrated their day-to-day commitment. They know what they are getting into, and their stated wish to become a lifetime parent reflects the “chemistry” that has emerged between the child and the foster/adopt parents.
The attorney’s first task in court is to have an expert present a clear and objective definition of bonding. While all the definitions of bonding carry weight, it may be best to use the policy and legal definitions as a primary definition. Display the actual written standard, once it has been determined, on a poster for everyone in the courtroom to see while witnesses are led through their testimony point by point. This can be quite effective. A good attorney will ask the expert whether mere kinship, visitation, and other part-time contact can result in bonding.
One final caution on the definition of bonding is needed. Some naïve persons believe that the child who has bonded well to one family is a “good bonder” and will do equally well if moved. The child appears pleasant and compliant, showing no overt signs of distress. As explained in Chapter Two, this is correctly called “pseudo-bonding” and reflects the opposite of true bonding. The Diagnostic and Statistical Manual of the American Psychiatric Association describes this indiscriminate attachment and sociability as one form of “Reactive Attachment Disorder.” (DSM-IV-TR, 2005)