Breastfeeding in Virginia

Posted on Nov 3, 2014 by Katie Carter

It seems like, lately, breastfeeding is a huge issue.  Either that, or I’m just more sensitive to it because I work in a law firm that is focused on representing women in family law cases—and because my boss, Kristen Hofheimer, is pretty well known for a pro-breastfeeding piece she wrote back in law school about breastfeeding as a factor in custody and visitation cases.  It’s a really interesting article, and, if you’re interested, you should definitely check it out.  You can read it in its entirety by clicking here.

Breastfeeding is an issue that is coming up more and more, and it seems like women are more comfortable talking about it now than ever before—whether a woman can (and should) breastfeed in public, whether employers should be required to provide facilities for pumping or unpaid time for on the job nursing, whether it’s okay if patrons of a restaurant or other public establishment indicate their discomfort with a nearby breastfeeding mom…the list goes on and on.  It’s something that people are talking about, and it has some seriously strong supporters.

It’s a really interesting topic, and one that certainly affects our current and potential clients, so I thought I’d take a minute to talk about it.  I thought it would be useful to talk about two things: (1) the law regarding breastfeeding in Virginia, and (2) how breastfeeding typically affects custody and visitation in the cases I’ve seen.  If you’re a mom (or soon to become a mom), and you’re breastfeeding, or seriously considering breastfeeding, you’re probably wondering what is and is not allowed.  The reality is that what’s allowed is something that varies from state to state, so it takes a little bit of digging to find out specifically what each state allows.

Why do you need to know?  Well, just like with anything, it helps to know what your rights are.  That way, if someone misrepresents your rights to you, you don’t cave or slink away, embarrassed—you can set them straight.  Not only that, but you can be sure you’re making conscious choices about when and where you breastfeed, if that’s important to you.  Whether you’re a rule follower (there’s no shame in that) who wants to follow the rules to a T, or whether you want to deliberately run afoul of the rules in order to create change (hey, it worked for Gandhi), you’ll be at your best and most effective if you’re actually aware of what the rules are.  Me, personally, I find comfort in knowing the law (if only because so many don’t).  Regardless of whether you intend to follow them or not, I think you’ll find strength in knowing the law and being prepared to educate anyone who may be misinformed about it.

I’ve read lots of articles lately about women who have been asked to stop breastfeeding in public—in restaurants, church services, and even rec centers.  I recently read this article, and it really made me think.  I’m not a mom, so breastfeeding in public was never really something I thought much about.  Still, I figured as a woman (and a family law attorney), that I needed to start thinking about it.

I’m definitely supportive of a woman being able to choose when, where, and how she wants to feed her child—particularly in light of all the scientific evidence that has emerged showing the benefits of breastfeeding to both momma and baby.  If you want to bottle feed your baby, that’s absolutely fine.  It’s your choice.  But if you’re a mom who has chosen to breastfeed her baby, you should be afforded all the same rights as moms who prefer the bottle, including the right to feed your baby whenever he or she is hungry.  As you know from being hungry yourself, hunger doesn’t always strike at the most opportune moment.  As an adult, you’re expected to wait until it is an appropriate time to chow down, but a baby just can’t do that.  Regardless, it’s your child, and your choice.  And what’s indecent or inappropriate about breasts being used for their intended purpose?

Different states have different laws about when and where you can breastfeed.  Some places let you breastfeed pretty much anywhere; others have stricter rules.  It’s definitely worth knowing what’s allowed in your state.  For a general guide on breastfeeding in public, I found this blog, which I like and think is pretty interesting.  It’s not the same everywhere, of course, but there are lots of steps you can take to find places to breastfeed that are accommodating and allow you to feel comfortable.

Laws on Breastfeeding in Virginia

Where can you breastfeed?

In Virginia, pursuant to Virginia Code Section 2.2-1147.1, women are allowed to breastfeed on any property owned, leased, or controlled by the state.  It sounds like a decent law, but it’s actually fairly strict, especially when you consider that forty six states (including Alabama, Alaska, Arizona, Arkansas, California, Colorado, Connecticut, Delaware, Florida, Georgia, Hawaii, Illinois, Indiana, Iowa, Kansas, Kentucky, Louisiana, Maine, Maryland, Massachusetts, Minnesota, Mississippi, Missouri, Montana, Nebraska, Nevada, New Hampshire, New Jersey, New Mexico, New York, North Carolina, North Dakota, Ohio, Oklahoma, Oregon, Pennsylvania, Rhode Island, South Carolina, Tennessee, Texas, Utah, Vermont, Washington, West Virginia, Wisconsin and Wyoming), DC, and the Virgin Islands all allow women to breastfeed in any public or private location.

Is it indecent exposure?

I know, I know.  What a stupid question.  Still, there are certain states that have not specifically excluded breastfeeding as a form of indecent exposure.  (Of course, just because something is ‘technically illegal’ doesn’t necessarily mean that anyone would prosecute anybody else for committing that act; there are plenty of laws still on the books that are ridiculous according to modern sensibilities and, therefore, are not enforced.)

In Virginia, breastfeeding is NOT considered indecent exposure.  Today, only twenty nine states exempt breastfeeding from indecent exposure laws—a number that, to me, seems awfully low.

What about jury duty?

In Virginia, you can be exempt from jury duty as a breastfeeding mother.  You’ll have to request that exemption if you receive a jury duty summons in the mail.

What about breastfeeding in the workplace?

Well, it’s complicated.  In Virginia, employers are encouraged to give breastfeeding mothers unpaid break time to breastfeed or “express milk” for the purpose of feeding their children.  Only twenty four other states have legislation relating to breastfeeding in the workplace.  Not only that, but Virginia is considered to be one of the twenty five total states that does have legislation relating to breastfeeding in the workplace—and the only “legislation” we have is a Virginia House Joint Resolution—and it doesn’t mandate that employers do anything.  It merely “encourages” employers to provide support to their employees.

So, where does Virginia stand on breastfeeding?

Virginia is definitely a more restrictive state when it comes to the rights of breastfeeding mothers.  It has some legislation regarding breastfeeding, and affords some basic benefits to breastfeeding mothers, but our legislation is definitely much more restrictive than the legislation in other states (forty six of them!) that allows mothers to breastfeed in any public or private place.  It could be worse, but it could certainly be a whole lot better (and, in a vast majority of other states, it is better).

Still, for better or for worse, knowledge is power.  Whatever your decision regarding breastfeeding in public or in private, you should be able to do it with full knowledge of the law.

How does breastfeeding affect custody and visitation cases?

Breastfeeding raises more issues than just when, where, and how you choose to feed your child.  If you’re going through a divorce, or if you and your child’s father were never married, and you’re having to figure out an appropriate custody and visitation schedule, you’re probably feeling more than a little overwhelmed.  After all, how is hardly any kind of visitation schedule appropriate when your child needs to be fed (and, if you’re breastfeeding, you have to be there to do the feeding) every couple of hours?

There’s no question it’s a pretty difficult thing to do, and what you’re able to negotiate may depend on your child’s father’s feelings about your decision to breastfeed and, failing that, on how the judge deciding your case (if it comes to that) feels about breastfeeding.

If you’re negotiating an agreement, you have a lot more freedom over what your custody and visitation arrangement will be like.  In cases like these, especially ones where dad is supportive of mom’s decision to breastfeed, we usually see visitation with dad start out small, and expand over time.  In cases of “good” breakups, sometimes we even see dad coming to visit the child at mom’s house.  Because that’s a way to give dad more time with the child, and still allow mom to be nearby whenever the child is hungry, having visitation at mom’s house is a good middle of the road suggestion.  It’s a way to keep dad around, and still emphasize the importance of the breastfeeding relationship.  Otherwise, dad will likely have to settle for shorter, more frequent visits (an hour or two at a time, in some cases) that grow as the child grows and has longer periods of time between feedings.  It’s really not possible for a breastfeeding child to have overnight visits, which can be a sticking point for a lot of dads.  Still, if you’re involved and working together for the sake of the child’s well being (and if you help educate him on the benefits of breastfeeding), you may stand a better chance of appealing to his better nature.  Work with your child’s father, and show him that you do think it’s important that he maintains a relationship with the child—and it’ll go a long way towards helping you reach an agreement regarding custody and visitation.

If you and your child’s father can’t reach an agreement, you may end up litigating your custody and visitation case.  If your case is in court, you are at the mercy of the judge.  Because judges are all different, they all have different feelings about breastfeeding, and it’s impossible for me to analyze each judge in the Commonwealth and speculate on their feelings.  If you’re facing a custody and visitation face where breastfeeding is an issue, you should talk to an attorney in your locality to get an idea about how the local judges feel about breastfeeding.

There’s not a ton of information out there to help you out if you’re in this situation, but I do know of a couple pretty awesome resources that might help give you a better idea of where the courts stand on breastfeeding and what you can expect if you’re facing a custody and visitation case while you’re still breastfeeding.  For one thing, you can request a free copy of Kristen’s book, “The Women’s Custody Survival Guide.”  It has a lot of important things to keep in mind if you’re facing a custody and visitation case while breastfeeding—after all, Kristen knows a lot about it!  Additionally, if you haven’t read Kristen’s article (which was originally published in the University of Virginia’s Law Review, which is pretty prestigious), you definitely should.

Talking to an attorney about your specific situation is always a good idea, too.  Our attorneys are always here to help, so feel free to give our office a call at (757) 785-9761 if you need more help.  After all, if you, like millions of women just like you, have decided that breastfeeding is the right choice for you and your child, you should be able to do it.  Don’t you think?