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Breastfeeding and Visitation or Custody

LLL USA recognizes that challenges and issues may arise when a nursing child is involved in a child visitation or custody situation as a result of divorce or separation. The child’s needs should come first and foremost, and both parents may find that compromise is needed to ensure that those needs are met. Maintaining the nursing relationship is vital; however, it also is important to consider the child’s relationship with the co-parent and not use breastfeeding to bar access to a child. The nursing parent needs to be prepared to offer the co-parent time to be with the child.

For those in the United States, some states have statutes that specifically require breastfeeding/chestfeeding to be considered in custody or visitation decisions. Other states may have prior legal decisions that will guide you and/or your attorney. LLL USA Leaders cannot provide you with legal advice nor offer you the services of an attorney. By contacting a local Leader, they may be able to provide or obtain information that is relevant to the law in your state to help you work towards a solution that best meets the needs of your nursing child and the family.

Note: The information on this page is based in part on the LLL USA New Beginnings article, “The Breastfeeding Relationship and Visitation Plans” by Elizabeth N. Baldwin, JD and Kenneth A. Friedman, JD. NEW BEGINNINGS, Vol. 13 No. 1, January-February 1996, pp. 4-7.  Additional resources are included at the bottom of the page.

Why Work Together on Visitation or Custody? 

Breastfeeding is an important parenting and health choice for both parent and child. When parents separate or divorce, conflicts may arise between the nursing parent’s desire to continue breastfeeding and the co-parent’s plans for visitation or custody. Breastfeeding/chestfeeding can be protected in family law cases without sacrificing the co-parent’s bond with their children. Babies need the love of both their parents, and it should be unnecessary for the courts to pick one relationship over the other, when both are so important.

Why Breastfeeding Should Be Encouraged in Family Law Cases

Many people may wonder why encouraging breastfeeding in family law cases is so important. To answer this question, one must first ask why breastfeeding is important at all. Currently, the American Academy of Pediatrics, the World Health Organization, and UNICEF recommend that babies be breastfed for at least one year, and preferably until age two or beyond. Breastfeeding is no longer considered to be just a lifestyle choice, but a health choice for both nursing parent and baby. More and more health benefits to the nursing parent and baby are being discovered every day. 

Lengthy separations from the nursing parent can seriously jeopardize the breastfeeding relationship when the baby is young. Given the potential health benefits to both nursing parent and baby, continuance of this relationship should be a priority in family law cases. Once past infancy, many children continue to nurse, and the health benefits to the child and the nursing parent are still significant. Studies show that the immunities and antibodies in breast milk are more concentrated as the child grows, providing the same protection as in infancy even though the child nurses less. As the child grows, the breastfeeding relationship can continue while the child spends longer times away from the nursing parent. However, this does not mean that lengthy separations are not potentially damaging to the child. The securely attached child, breastfed or not, needs to work up to longer separations gradually. The court, as well as the parents, must look at the child’s developmental needs and what separations the child is accustomed to.

How a Bond with the Co-Parent Can be Encouraged without Interfering with the Nursing Relationship

Some people assume that if the breastfeeding relationship needs to be protected, and the primary bond with the nursing parent is not to be disrupted, then the co-parent’s attachment must be of secondary importance. This is not true. Every child has a right to a loving, responsive bond with both parents. The co-parent’s bond with the child is just as important as the nursing parent’s bond. However, it should rarely, if ever, be necessary to interfere with the child’s attachment to the nursing parent in order for the co-parent’s relationship to be promoted and encouraged. In the ideal relationship, the bond with the co-parent and any siblings flows out of the strong bond with the nursing parent. But in any case, the child should not be taken from one parent, or forced to choose. The child should feel that both parents will protect and encourage the co-parent’s relationship with the child, and both will help the child to feel safe.

There are many advantages to the parents, and their child, if they encourage their child to have a strong, healthy relationship with both of them. No parent wants to come for their child and have the child clutching the other parent’s legs screaming not to make them go! Both nursing parent and co-parent will benefit if their child gleefully leaps into their arms, so excited to see them and go off with the co-parent! But how can this be accomplished?

It makes it much easier if the parents can avoid or end the conflict between them. Parents must realize that, although they cannot or will not live together, they have brought a precious human being into this world who has rights and needs. These two parents will be raising this child together, not just until age 18 but for the rest of their lives. Do they really want legal battles where total strangers (lawyers, judges, guardians, etc.) make decisions about when and where they will raise their child? There are alternatives.

Courts are trying to get out of the custody business, and to encourage parents to work these matters out themselves. There are many ways to settle a case, rather than have a judge decide all the issues. The parents can talk together or meet with their lawyers. Mediation is another popular method of settlement. This is especially beneficial to the children involved, as it is not divorce or separation per se that negatively affects a child, but the anger between the parents. 

The child will benefit when the parents can exercise flexibility, talking each week and working out visits that will be best for their child at that point. Young children need frequent and continuing contact with both parents, and a close bond with the co-parent is promoted by frequent contact, seeing the co-parent every day if possible, rather than less frequent visits that involve lengthy separations from the nursing parent. Arrangements should be flexible enough to take into account the child’s needs. The co-parent should always bring the baby back to the nursing parent if the baby is crying for them. This will build trust and eventually allow the child to enjoy longer and more frequent visits with their co-parent. If the child is brought back, the visitation time should be made up as soon as possible. The child should not be made to feel as if the co-parent is pulling them from the nursing parent, or vice versa. Help the baby feel that both parents respect the baby’s needs and care about how the baby feels. 

Visitation Plans

Ideally, visitation plans are flexible. Parents talk to each other regularly, looking at their schedules and working together to help their child have frequent contact with both of them. Both parents would support the other’s relationship with the child, and make the child feel safe and secure. The child would know that if they wanted to be with the co-parent for any reason, then the parent they were with would help meet this need. Nursing parent and co-parent would help their child to look forward to overnight visitation, and try to follow their child’s lead in that area. For example, many two-year-old children will ask to spend the night with Dad, if the parents get along well and present the idea as something fun rather than a dreaded event.

But many parents are unable to work together in a fashion that avoids the need for fixed visitation plans. If the parents can’t get along, they need a specific visitation plan that involves frequent, daily if possible, visits with the co-parent, regardless of the age of the child. The initial visitations should be as long as the length of the separations the child is already accustomed to, and gradually work up to longer visits, changing every few months. An overnight visit would not be appropriate until the child is comfortable with two full days of visitation. Certainly, full weekend visitations should not begin until the child is accustomed to one overnight. Week-long visits should not occur until the child has mastered weekends, or even four-day visits. Nursing parent’s who do not want the co-parent in the child’s life at all have a very difficult and explosive situation to deal with and need excellent representation and evidence to support this request.

In forming visitation plans, there are several factors that should be looked at:

  1. What separations has the child had from the nursing parent? Look at how long the separations are, who the child is left with, and how often they take place. These make good guidelines for how long the co-parent should have for visitation without disruption. For example, a six-month-old baby who has been separated from the nursing parent for two hours at a time on several occasions but otherwise is unseparated could probably handle a two hour visit with his co-parent several times a week. If a nursing parent of a four-month-old leaves the baby on weekends with grandparents, then there is no reason why the baby could not be with the co-parent for weekends.
  2. What style of parenting has been used in since birth? If the nursing parent engages in an attachment style of parenting (nursing on demand, shared sleeping, etc.) then this relationship should be protected and encouraged. If a nursing mother keeps the baby in the crib at night in a separate room, and someone else takes care of the baby, giving a bottle during the night, the co-parent can do this just as well. 
  3. What involvement has the co-parent had since birth? Look at the time the co-parent spent with the children before separation, and since. The co-parent needs to learn how to cope with this particular child, responding to needs and patterns that exist, i.e., naps, foods their child eats or is allergic to, bedtime routines. Working out these matters can be difficult for people who have decided that they cannot live together, but must work together now, maybe more closely than ever before, in order to do what is best for their child.
  4. What visitation does the co-parent want? Visitation plans usually can work up to what the co-parent wants, if that is reasonable. If the co-parent wants weekend visitation and is seeing their child for four hours on Saturdays, some time is going to be needed to work up to full weekends. A good place to start is with the visitation the co-parent has now, or the length of separations the child has already experienced from the nursing parent. Then one can look at what age the co-parent’s requested visitation would be acceptable. Many parents are surprised to learn that, in some jurisdictions that address visitation for preschool age children, the best they can hope for is overnight visits that begin at age two, weekends at age three, and week-long visits for the summer at age five or six. Once the starting and ending points are determined, visitation can be gradually increased every month or two, until the goal is reached. The more frequently the co-parent can visit, the easier it will be to work up to lengthier visitations.
  5. What visitation is feasible given the parties’ individual situation? What work schedules must be worked around? How far apart do they live? If the parents live near to one another, there is no reason why visitation cannot occur frequently, if not every day. If they live far apart, or if they cannot get along well enough to have frequent contact, it will take much more work to determine what visitation is feasible.

It is important when devising a visitation plan, that the convenience to the parents does not take priority over what is best for the child. Too often the co-parent is not willing to visit frequently, or the nursing parent does not want to see the co-parent that often. If the child’s needs are to be a first priority, this attitude must be changed. And if someone other than the parents needs to fashion a visitation plan, that person should look realistically at what can be accomplished rather than what the parents may want to see happen. For instance, if the co-parent works a few minutes away, could they see the child each day on their lunch break? For an hour or two after work?

Dependency needs do not last forever. In a few years children will be able to handle the “requested” visitation without disrupting their bond with either parent. Often there is intense pressure to speed things along for the convenience of the parents, rather than because that is what is best for the child. If the parents are not able to resolve these issues themselves, then someone must do it for them. It is important that the child’s needs will be protected by everyone involved.

Other Things to Consider

At times, the court may feel that breastfeeding is being “weaponized” or used as an excuse to prevent contact with a co-parent. This perception should be avoided. As such, some attorneys suggest not making breastfeeding a central issue in your custody arguments.

Also, in drafting your agreement with your co-parent, it is important to discuss if and how breastmilk will be offered while separated from the nursing parent. Will the child be receiving expressed milk or formula while separated? Will it be presented in a bottle or cup? You may find that offering information to the co-parent about the importance of breastfeeding as well as how to bottle-feed a breastfed baby is helpful to all three parties.

 

How Can An LLL Leader Help? 

As stated above, LLL USA Leaders cannot provide you with legal advice nor offer you the services of an attorney. Your local Leader can:

  • offer you emotional support
  • offer information about expressing milk or keeping up your supply during separations
  • provide information about offering expressed milk to a breastfed child
  • offer information about weaning, if necessary
  • provide or obtain information that is relevant to the law in your state or connect you with the local breastfeeding coalition

 

RESOURCES

Protecting breastfeeding while in a divorce or custody dispute, Liz Brooks, JD, IBCLC

Will my child’s father get visitation if I’m breastfeeding?, Katherine Wilcox Carter, JD

How Does Joint Custody Work With Breastfed Children?, Heather Francis, JD for LegalZoom

Allocating Parenting Time With a Breastfeeding Child, Elsie Gonzalez, Esq.

Breastfeeding and Child Custody: 6 Points to Empower You, Marie Biancuzzo, IBCLC

What To Know About Breastfeeding And Custody Issues, Wendy Wisner, IBCLC for The Badass Breastfeeder

Divorce/Custody and Blended Families, Attachment Parenting International

A Letter to the Court “Overnights and other custody/visitation arrangments with divorced or separated parents of infants and toddlers”, Isabelle Fox, Ph.D. for Attachment Parenting International

Custody and Breastfeeding, Breastfeeding.support (some information specific to UK law)

Breastfeeding and Custody Cases, LLL Great Britain (some information specific to UK law)

PERSONAL STORIES

Breastfeeding Through Divorce: Jessica’s Story, LLL USA blog

A Journey Through Breastfeeding and Visitation, The Leaky Boob

I breastfed my child through divorce, LLL USA Facebook Page

 

 

IS YOUR CONCERN OR QUESTION NOT COVERED HERE?

Please contact a local LLL Leader with your specific questions.

Remember that medical questions and legal questions should be directed to appropriate health care and legal professionals.

 

Page updated April 2020