Can I breastfeed and share custody?

Posted on Oct 14, 2022 by Katie Carter

We talk a lot about breastfeeding, and the unique challenges that it presents when it comes to custody and visitation agreements. As I’m sure you’re already aware, there’s really no question that, in terms of nutrition, being able to nurse your babies and toddlers is ideal. In fact, if I’m not mistaken, the current guidance from the World Health Organization is that it’s ideal to breastfeed for the first year of a child’s life.
Of course, not everyone nurses for a year – but some families find that it works for them to nurse to a year and even well beyond. I’m not here to discuss the merits and demerits of that, or to pinpoint an age after which a child should be weaned. As far as evidence is concerned, there are plenty of doctors, nurses, lactation consultants and other experts who would testify that the benefits of breastfeeding to both mother and baby are significant, and last well beyond the first 365 days of the child’s life.

But, if you and your child’s father aren’t together anymore, nursing may be a challenge. Heck, as a former nursing mother myself, I know it’s a challenge no matter what your family situation. But if your child’s father is pushing you for time with the child – alone, or even overnight – you might be overwhelmed at the thought of how it might be possible to continue nursing.

These days, too, custody is complicated, even when you’re talking about an infant – though, I do feel compelled to point out that a breastfeeding case isn’t necessarily only a case where an infant is involved, though the feeding schedule changes significantly as the child grows and develops.

Breastfeeding, Infants, and Custody

We’ve talked a lot about nursing infants and parenting schedules that are well suited to infants. Since the youngest babies nurse around the clock, and often with a few hours (or sometimes not even that) separating feedings, it often makes the most sense to offer parenting time in shorter periods, not overnight, and within reach of the mother. I’m not necessarily saying that mom has to be physically present at every second, or that dad couldn’t be alone with the child, but mom shouldn’t be too terribly far away in the beginning.

Breastfeeding, Toddlers, and Custody

Once you have a slightly older child, they don’t need to nurse every couple of hours. In fact, in my experience – though yours may be different, and I am certainly open to hearing about it – we relatively quickly switched over to a schedule where we nursed before bed and nap, but not necessarily all the time, especially after we switched to start eating real food.

Every family is different, but babies don’t keep. The whole ‘nursing around the clock’ thing, and the short (but super painful!) period of time where they cluster feed for hours, is very short lived. So, it may be possible, before long, to expand the hours that the child goes with dad, or even to extend a few overnights, if you, the child, and your ex are comfortable.

As the child develops even further, especially if you practice extended nursing, it may be even more infrequent, which does make sharing custody a little more possible.

What is shared custody and how does it work?

The laws regarding custody and visitation have changed in recent years. Now, the statute explicitly says that judges have to consider all types of custody (primary physical, shared, and split) equally. It’s not really so much that judges weren’t doing that before, but now they’re required to. We’ve found that many judges interpret that to mean that shared custody is the preference, even though the statute definitely doesn’t say that.

It’s possible that you could build your custody case around breastfeeding, and argue that this is why you should have primary physical custody. It may even work, for a little while. But, eventually, especially if your child’s father is persistent, you’re likely to find yourself sharing custody at some point.

Shared custody isn’t the worst thing that could happen. In fact, I’d argue that in some families, it’s the best thing that could happen, though I can understand that you might feel like that won’t allow you to be the kind of mother that you want to be. The way the court sees it, this isn’t a question of ‘winning’ custody or ‘losing’ custody; it’s a question of how the child can have a relationship with both parents to the greatest degree.

Shared custody happens in a case where the noncustodial parent has 90 or more days with the child over the course of a calendar year. It doesn’t necessarily mean 50/50 custody, but it could mean that. We see a lot of cases where custody is shared on a week on/week off schedule, or even something like 4-3-3-4, so that each parent gets a certain number of days in rotation.

Am I guaranteed to get shared custody, even if I have a nursing child?

No. There are no guarantees. Custody is determined on a case by case basis, using the best interests of the child factors.

Nursing may play a role. You’d have to introduce experts and establish that a different custodial arrangement is in the child’s best interests. Of course, then your child’s father would have to do the same; he would introduce evidence, witnesses, and exhibits to show how the benefit of having him around on a regular basis is more important, or that the benefits of breastfeeding are negligible.

It will require an expert – probably a doctor, a nurse, a lactation consultant, or some combination of all three. It’s not enough to say, well, the research has established that nursing is important. You’ll have to make a strong case.

How can I be nursing and share custody?

Look, I’m not suggesting that it’s ideal. But if nursing is really important to you, and you aren’t able to secure primary physical custody, you’ll want to have a plan in your back pocket for how to accomplish your goals.

I’ve talked about this in relocation cases, too. It’s not enough to say you want to relocate and here are all the things that are great about your proposed relocation. You’ll want to envision what that life would look like, and how you’d incorporate the child’s father. You need to have a plan, and be strategic.

That’s the case here, too. Whether you win primary physical custody or you wind up with shared custody (as so many do – please, don’t consider that a loss, but instead a reflection of where the court’s concerns are these days), you need to consider a plan.

Will you pump? I think that’s probably the most obvious solution. But you could also suggest that you travel to dad’s home and nurse before nap or bedtime or on whatever other schedule that your child nurses. Chances are, if you work, it’s not going to be a thing that happens every couple of hours for very long. Even if you stay at home, the nursing schedule spaces out before too much time has passed. How can you help your child nurse, and still allow dad to have the parenting time that the court orders?

How can you make sure that he stores the milk safely? What steps can you take to make sure that it’s as painless for him as possible, so that he is an ally to you as you try to continue to nurse for as long as you possibly can?

It may not be possible for him to cooperate – that’s definitely something that could happen. Depending on the level of animosity between you, he may flat out refuse, or he may not be responsible enough or diligent enough to follow safe handling recommendations for breastmilk. He may not follow the same schedule. You may fall more into the parallel parenting bucket, rather than the coparenting bucket.

At the end of the day, you may not have as much control over breastfeeding as you would wish. It’s not a perfect world. You may find yourself weaning before you anticipated. You may feel angry or resentful. I recognize how emotional a breastfeeding relationship is – I’ve been there.

You should talk to an attorney. Get a sense of the issues in your case, and your likelihood of success on the merits. Each case is different, so there’s no point worrying about a bunch of ‘what ifs’. It’s going to be easier to just go ahead and get one-on-one, case specific advice that is tailored to your situation so you can begin to make choices about how to move forward.

For more information, to download a copy of our custody book for Virginia moms or our free report on breastfeeding, visit our website at or give our office a call at 757-425-5200.