Will weaning impact my Virginia custody arrangement?

Posted on Jul 20, 2022 by Katie Carter

Breastfeeding is important for many moms. Even though I think most of us can agree that fed is best and that there is not (or should not be) any stigma for moms who choose to feed their babies formula, breastfeeding is a big deal.

We’re bombarded by messages about breastfeeding, and its benefits to both mothers and babies. It’s hard not to feel like we HAVE to nurse, like it’s the most important thing – like we all don’t cave and end up letting our kids eat old chicken McNuggets off the floor of the backseat of the car at some point. Wait – just me? Ooops. It was just once.

For me, personally, nursing was super important. I had a challenging time with my first, who had both a tongue and a lip tie, which we waited too long to get corrected. My mom had warned me of ‘toe curling’ pain, so, when it hurt, I didn’t really think I needed help. Too much time went by to help adjust him, and, frankly, I was so damaged that it was difficult to push forward. I ended up pumping exclusively for the first year of his life, and essentially driving myself completely crazy in the process.

With my second, it was much easier. Not natural, like I felt the childbirth books promised, but it came together. It still hurt a little, but not like before. We soldiered on. And on and on. I was going to stop at a year and a half, but then that deadline passed. We kept going. I didn’t really know how to stop and, anyway, my kid wasn’t going to let go that easily.

At 2.5, I finally weaned. To be honest, it was pretty painless, when it actually happened. Even though I resented nursing for the last year or so, it was still hard for me to stop. It was hard to imagine deliberately upsetting her by withdrawing it when she still needed it, even if she didn’t actually nutritionally need it anymore. I’m sure my feelings about my first had a lot to do with it, but I couldn’t let go. Until we both did, at the same time.

Honestly, it was exactly how I hoped it would be – not damaging to her or to me. It felt like we were both ready. But when it comes to a custody and visitation situation, it’s not always about what you want or what’s best for your kid, even though we say we make custody and visitation determinations based on the ‘best interests of the child’ standard.

From a custody and visitation standpoint, nursing can be challenging. Because, no matter what we think about it, a dad has a right, too. And different judges have different viewpoints about what kind of custody and visitation arrangement works for a nursing baby. There are judges who prize the breastfeeding relationship and work hard to support it, and there are still others who take a “you’ll pump and provide him with bottles and it’ll be fine” approach.

If breastfeeding is litigated, it often involves doctors, nurses, and lactation consultants as expert witnesses. Even then, dad is still likely to get some parenting time. In a best case scenario situation, he’d likely get frequent, smaller blocks of parenting time, provided either between typically designated mealtimes, or while mom isn’t too far away so that the baby can be fed on demand.

A lot will depend on the age of the child and what’s appropriate; after all, a newborn is very different from a 2.5 year old which is very different from a 6-7 year old. And, at some point, even the most patient father might grow annoyed with nursing keeping him from, say, having any parenting time that interferes with naptime or bedtime nursing sessions.

Can the judge or my child’s father force me to wean the child so that he can have more parenting time?

Ultimately, the judge can’t FORCE you to do anything. Even if the judge gives more parenting time to your child’s father, you could pump. You could provide your child’s father with bottles. He could refuse to feed them to the child. Or, you could pump and donate the extra milk (or build your freezer stash) just to maintain your supply for while the child is home.

At some point, I think a judge would grow impatient with continued nursing. When would that be? Well, it’s going to depend on the judge. I don’t even want to throw out an age, except to say that I think most people find extended breastfeeding (you know, beyond the age of four or so) a little strange. Even though there is a ton of scientific evidence on the benefits associated with it, it’s still something that is considered unusual in our society. At some point, you are likely to find much less judicial support for nursing, if indeed you ever found support for it at all.

They (meaning the court and your child’s father) can’t force you to wean, but ultimately you may find that the parenting arrangement changes to a point where weaning becomes necessary. The court will not force your child’s father to feed the child expressed breastmilk – if you can even trust him to follow safe storage guidelines. At some point you may find that the circumstances just don’t support it any longer.

If I wean, will it change my custodial arrangement?

That depends! Like we’ve said already, some judges are more or less supportive of nursing in general, but you are likely to find that there’s a time where using nursing to keep parenting time minimal just doesn’t cut it anymore. (Again, that’s assuming that it worked as an argument for limited parenting time in the first place, which is absolutely not a guarantee.)

While it’s possible to continue to nurse long term in order to keep your child’s other parent’s visitation minimal, I don’t know that I necessarily recommend it. I don’t view nursing as a weapon in your arsenal, but instead as a way to nourish the developing bond between you and your child. There’s a time at which it is appropriate to wean. If your child has reached that point, I wouldn’t continue nursing – or attempt to – in order to keep more parenting time for myself.

Depending on what your current custodial arrangement is, it’s possible that weaning could change it. If your schedule is designed specifically to accommodate nursing, it’s likely that it’ll change. After all, custody, visitation, and child support are all modifiable based on a material change in circumstances anyway.
Every situation is different, and you know both your child and your child’s father best. But, in general, I’d say that communicating, and coming up with an arrangement that is predictable and somewhat equitable will help you develop a positive coparenting relationship long term. In most cases, I think that vague ‘the parents will agree on parenting time’ arrangements are destined to fail because the two parents come into them with different ideas, and the agreement gives neither anything to fall back on.

A meeting of the minds is helpful, both to establish expectations and to help insulate the parents from the risk of disagreement creating extra litigation. It’s not to say that you have to formally change anything, but having some open, honest communication can go a long way towards creating a good relationship with your child’s father long term.

If that’s too pie in the sky for you – and its fine if it is, everyone’s relationships and families are different – maybe look into drafting a custody agreement. It’s not necessary to go to court every single time things change; maybe just reaching a formal agreement would be better for everyone involved.

You don’t have to change anything unless and until a judge tells you that it’s changing, but you may find that a little flexibility is helpful.

Nursing is incredibly stressful, and that’s doubly true when you add custody and visitation on top of it all. I hope that you’re able to nurse as much as you want for as long as you want, and still establish a coparenting relationship that allows all of you – mom, dad, and baby – to flourish.

For more information about nursing during custody cases, to request a copy of our custody book, or to schedule a consultation with our office, give us a call at 757-425-5200 or visit our website at hoflaw.com.