Breastfeeding is something that comes up pretty often when we’re talking about custody and visitation of infants – and sometimes even toddlers and beyond! With the wealth of information that is available to us nowadays, most people are aware of the fact that the benefits of breastfeeding extend for as long as mom and child continue to nurse.
For a lot of moms (myself included), establishing breastfeeding is difficult and fraught with emotion. Being able to successfully breastfeed is a wonderful experience for both mother and child, and it’s a relationship that not only provides health-related benefits to both mom and child, but also helps develop that critical bond. It’s so important!
Obviously, the article is not intended as criticism to anyone who isn’t able or chose not to breastfeed (far, far from it!); the entire point of this article is to discuss challenges and related difficulties when custody and visitation comes up and a mother has chosen to breastfeed her child.
The reality is that breastfeeding presents unique, specific challenges. As you probably noticed when you brought home your first baby from the hospital, breastfeeding means that only YOU can feed your baby. So as helpful (or not) as your husband or child’s father may have wanted to be, if he lacks the proper equipment, there’s not much he can do to make sure that the child is fed.
I think it’s part of the experience that many new moms don’t fully appreciate until they realize that literally only they can get up with the child in the middle of the night, especially in the beginning, when he or she needs to eat every 2-3 hours. Being the only one who can feed the child makes custody and visitation (as you can imagine) more complicated than it would otherwise be, as you can probably imagine.
What happens when custody and visitation of an infant comes up? How is breastfeeding addressed in these cases?
Most custody and visitation cases are decided by agreement of the parties. If you and your child’s father can reach an agreement, that will likely govern. If not, though, you’ll have to go to court and let the judge decide.
What will the judge say about the breastfeeding relationship? Will he/she support it?
In my experience, judges are vastly different people with vastly different opinions and experiences. Though I think most would concede that breastfeeding is important, many are also of the opinion that formula is pretty good, too. In fact, many judges were raised on it, since they’re older people – and this “breast is best” movement is a relatively recent one. There was an entire generation before ours that raised children on formula. In the 1970s and 80s, though people DID breastfeed, it was less usual (and certainly had less of a fanatical following) than it does today. It may be hard for a judge to accept there was something wrong with what he or she was raised on – and, after all, look how he or she turned out!
That’s not to say that judges take a dim view of breastfeeding, but only to suggest that their opinions may be more wide reaching than you might think. And judges have to weigh a lot of factors (ten, in fact, called the best interests of the child factors) against each other to ultimately make a decision about what actually IS in a child’s best interests. Is it more important, for example, for a child to be breastfed than it is for the child to have one on one with dad? It all comes down to the judge, and the evidence you present.
If you’re hoping to make a strong argument, you may have to bring in some experts – a pediatrician or a lactation consultant or someone who can help you make the scientific case for breastfeeding. Though you may think that’s reasonably well established, that’s not how court works. You have to PROVE it, and you do so through evidence and witness testimony.
What will the judge think? Who knows? But you do need to prepare yourself for the possibility, at least, that the judge won’t value breastfeeding as highly as you do. After all, there are ways to feed the child other than breastfeeding – and not just with formula, either, if that thought is repugnant to you. I’ve heard of judges saying, “Well, then pump!”
(Okay, so maybe that’s not an EXACT quote, but I have heard judges express the opinion that just because they can’t breastfeed doesn’t mean that they can’t provide the baby with breast milk. It’s the breast milk that’s important, not so much whether the baby is fed by breast or bottle. Anyway, it’s a relatively relevant objection, and one you should be aware of.)
Can the judge make me pump?
Well, no. The judge can’t really make you do anything. You’re a grown up with your own free will. But he can suggest it, and then order custody and/or visitation to dad in a way that would not allow you to breastfeed as freely as you have grown accustomed to doing.
If, for example, the judge orders overnights or entire days to dad while your baby is still breastfeeding, the choices are either to supplement with formula or to pump and feed the baby expressed milk.
I have also heard of moms being willing to meet their child’s father’s out and about so that the baby can breastfeed, but whether that would work will depend on the nature of the relationship between you and dad, and whether that’s actually feasible. It may be that dad would prefer not to do it this way, and I doubt a court would force him.
So, no, the court can’t make you pump. But the court can order visitation in such a way that would require you to decide whether it’s worth pumping in order to ensure that your child has breast milk even if he or she is not in your care.
In that case, it’s probably a good idea to talk to your child’s father about how to safely store breast milk, including guidelines about how long it can be kept at room temperature, in the refrigerator, and in the freezer – just to be on the safe side!
What kinds of custody and visitation arrangements do you see in cases where the mother is breastfeeding the child?
I see such a wide range of custody and visitation arrangements! There’s really no limit, especially if mom and dad are able to agree.
What I suggest is that you propose a visitation schedule that is more limited, but expands as the child grows older. With a breastfeeding child, if you want to preserve that breastfeeding relationship, you’ll need to do more frequent, shorter visits. Maybe he comes to take the baby for an hour or two (even more than once a day), or he visits the baby in your home, so you can still keep to his or her feeding schedule or nurse on demand. That doesn’t work for everyone, but in many cases it DOES work. I’ve found plenty of dads who support the breastfeeding relationship but also want some time with the child.
Pumping can be really effective, too, especially after the first couple of months. If you’re working and the child is going to have to go to daycare anyway, chances are good that you’ll need to pump and store milk anyway to keep up with the baby’s demand. It’s possible, at that point, to give dad slightly more extended time with the child.
It’s also possible that the judge will order time to dad without regard for the breastfeeding schedule. In that case, you’ll have very little choice – pump, or supplement with formula. After all, the baby HAS to be fed, regardless of which parent’s case he or she is in.
Will establishing breastfeeding help me win custody?
Maybe. I do think that it’s an important factor, and one that judges consider. It may or may not be enough to weigh the court heavily in your favor, but it’s definitely something you bring to the table that he can’t.
I don’t advise breastfeeding just as a means to one-up him or to win custody, but there’s very little question that most people these days really do believe that breastfeeding is important. It may not be important enough to outweigh dad’s interest in seeing the child (even one on one, or overnight), but it’s something.
Regardless, of course, it’s temporary. You should be prepared that your child’s father’s visitation (or parenting time, whatever you want to call it) will expand as the child grows older. Even if you have a judge who fully supports breastfeeding, chances are good that the judge won’t support breastfeeding indefinitely, especially if he or she senses that you’re using it as a vehicle to deny visitation to the child’s father.
Besides, it’s less effective as time goes on anyway, at least as a method for stalling. Research shows that, as far as the child is concerned, the benefits of breastfeeding extend indefinitely — but don’t expect your judge’s patience to be indefinite. As children get older, even if you’re still breastfeeding, they nurse much less frequently. Though there are definitely health benefits, it’s not like you’ll be up in the middle of the night nursing for much more than a year or two. Feedings won’t be on demand every 2-3 hours for very long. Still, breastfeeding is important, and we’re here to help. If you’re worried about custody and visitation of your breastfeeding child, we’re on your team. For more information, or to talk one on one with an attorney about how breastfeeding might be a factor in your case, give our office a call at 757-425-5200. You can also request a copy of our custody book or this article, “Breastfeeding as a Factor in Custody and Visitation Decisions” by clicking on the provided links.