Special Issues in Custody: Breastfeeding

Posted on Oct 21, 2019 by Katie Carter

Breastfeeding can become an issue in custody and visitation cases, as you can probably imagine.

Breastfeeding in general is fairly controversial, but it may be safe to say that it’s at its most controversial when it comes to custody and visitation. Sure, some people get pretty bent out of shape when breasts are used for their intended purpose in public locations, but Virginia law on that point is pretty clear (specifically, you may lawfully breastfeed anywhere mom and baby are present). While the law is no guarantee that no one will ever make an inappropriate comment to you if you breastfeed in public, it is a guarantee that the disagreement will only go so far.

The science on the benefits of breastfeeding is pretty clear, too. The benefits extend for so long as both the mom and the baby are willing to continue the breastfeeding relationship. Not to get too scientific on you, but breastmilk enhances a baby’s immune system, encourages intellectual development, helps regulate their digestive system, and helps foster appropriate emotional bonding and secure attachments between baby, mom, and others in baby’s life. For mom, it reduces her risk of breast and ovarian cancer, helps her lose that baby weight, and reduces the risk of other diseases, like Type 2 diabetes.

But what does it mean when it comes to a custody and visitation case? Do judges always respect the importance of the breastfeeding relationship?

In a word, no.

That’s not to say that judges are always on one side or the other; judges, like the rest of us, vary dramatically in terms of their opinions. There are supportive judges, and there are not so supportive judges. It’s kind of a mixed bag. And, in most cases, you can’t control which judge happens to be assigned to your case, and you may not even know his or her opinions ahead of time.

Why does it matter what the judge thinks about breastfeeding?

Well, it’s hard to breastfeed without a custody and visitation schedule that’s pretty heavy on mom’s parenting time, which can have an impact on the amount of time that dad has with the child.

As children get older, breastfeeding sessions tend to spread out – but, still, the baby eats at least as frequently as we eat, and often much more than that. Newborns can nurse every 2 hours, or even cluster feed (feeding semi-continuously over a period of hours).

What kind of custody and visitation arrangements work best for nursing moms?

It’s a challenge to find a custody and visitation arrangement that’ll work for nursing moms – and still allow dads to develop the bond with their children. Obviously, mom needs to have the bulk of the time, which means that either dad visits with the child in the mom’s home or at a mutually agreed upon alternate location, where mom is also present so that she can nurse the child. Alternatively, dad could take the child, but bring her back in order to nurse.

Overnights are also challenging for breastfeeding children, because many nurse at night. In fact, it’s not unusual for a child to wake during the night until age 2 (or sometimes even longer) – and a breastfed baby will likely want to nurse.

Why would a judge disagree with allowing a mom to breastfeed? It seems counterintuitive to me!

Despite all the benefits to mom and baby, some judges take a dim view of breastfeeding. Not because they don’t view breastfeeding as important, but that breastfeeding isn’t more important than dad’s opportunity to build a relationship with the child.

Some judges have a narrow view of breastfeeding, believing that it should stop after a certain period, or that continuing breastfeeding past an arbitrary age means that mom is too “enmeshed” with her child, or, worse, that she’s using it as a deliberate tactic to keep dad’s time with the child to a minimum and hinder the development of a healthy attachment between baby and dad.

Not only that, but there are alternatives to breastfeeding. According to some judges, mom can just pump – and, to them, that’s good enough. While it’s true that a mom can pump and still be able to feed her child breastmilk, there’s no question that the benefits aren’t the same – and, even more alarmingly, that it may be difficult, without nursing, for the mother’s breastmilk supply to be able to keep pace with demand.

Pumping mothers often have difficulty regulating and maintaining their supply, which can lead to early termination of the breastfeeding relationship.

But there’s also formula. I know, I know – it’s not exactly ideal, especially if you are able and willing to breastfeed instead. Formula doesn’t have anywhere near the same benefits to mom and baby as breastmilk, but many judges are of the opinion that formula is fine, especially if it means that then dad will have an opportunity to build the relationship with the child, too.

Keep in mind that this is a generational thing, too. Many judges are older, and were babies at a time when breastfeeding wasn’t in fashion. To them, formula was fine – after all, look how well they turned out! It’s more popular now, but that’s a relatively recent transition! For moms in the 60s, 70s, and 80s, breastfeeding wasn’t nearly as popular as it is today.

How can I convince the judge that breastfeeding is critical in my case?

Like anything else, your case will be made or broken based on the evidence you introduce and what you can prove.

It’s not enough to say that “breast is best” and leave it at that. If you are involved in custody and visitation litigation with a nursing infant or child, you will need to educate the court about a) the benefits of breastfeeding; b) the mechanics of breastfeeding (why you cannot simply pump a week’s worth of breast milk and send your child off for a week); c) the role of breastfeeding in the child’s forming attachments with both parents; and d) weaning (how and when it may occur, the possible repercussions of abrupt weaning to satisfy a court-ordered custody/visitation order). Ideally, you would have several expert witnesses to address each of these components of breastfeeding:

A pediatrician can address the physiological benefits of breast- feeding. The pediatrician may also be able to discuss the American Academy of Pediatrics Policy Statement on Breastfeeding and the Use of Human Milk, which is very supportive of extended, on demand nursing.

A lactation consultant can address the mechanics of breastfeeding, such as how let down occurs, the need for continuous physical contact between an infant and a mother in establishing breastfeeding, how long it is reasonable to expect that the child and mother can be separated and still maintain breastfeeding, the limitations of pumping breast milk; and can address, to some extent, what can happen if the child is weaned too abruptly. The lactation consultant will probably be the least costly of the expert witnesses that you will use, but may well be the most important. The court is probably less familiar with the mechanical realities of nursing a child than the fact that breastfeeding is beneficial.

An attachment expert can address the role of breastfeeding in the child’s formation of secure attachments, not only to his mother, but also to his father and to others. The attachment expert can also address the developmental benefits of breastfeeding beyond the time when the immunilogical and nutritional benefits become less important, and the possible repercussions of abrupt weaning. Finally, the attachment expert can discuss appropriate custody and visitation schedules for very young children, whether or not the court supports breastfeeding.

While using expert witnesses can become quite expensive, they may be necessary if you are in litigation and the court needs to be educated on important issues. For a very detailed discussion on the issue of breastfeeding in custody/visitation cases, see Kristen D. Hofheimer, Breastfeeding as a Factor in Child Custody and Visitation
Decisions, 5 VA. J. SOC. POL’Y & L.433 (1998).

For more information or to schedule an appointment with our licensed and experienced Virginia divorce and custody attorneys (many of whom are also former breastfeeding moms!), give our office a call at 757-425-5200.