Breastfeeding, Divorce and Custody Issues
May 25, 2009 by Angela White, J.D., breastfeeding counselor
Filed under law
Sadly, breastfeeding can become an issue in divorce, custody and visitation rights cases. With hard feelings on both sides, parents have difficulty coming to agreement on breastfeeding and custody and visitation arrangements that are in the best interests of the nursling. I recently received this comment and question:
Is there a Colorado law that explicitly states that it is a mother’s legal right to breastfeed? The father of my daughter’s baby (7 months), and his attorney, are trying to force my daughter to wean the child and get her to bottle feed. This is so the father can gain more freedom with visitations. Any suggestions on where I can find this information for my daughter to fight this issue? Thanks in advance for your response.
While I am a former attorney (of tax law), I cannot offer legal advice in this matter. As a breastfeeding counselor I am happy to point in the right direction and offer information resources for you and your daughter’s attorney to utilize in this dispute.
Resources that Support Breastfeeding in Divorce, Custody and Family Law Disputes
1. Statements by Medical and Child Health Associations in Favor of Continued Breastfeeding
AAP, the American Academy of Pediatrics, recommends exclusive breastfeeding (no formula or solid foods) for the first six months and says, “Breastfeeding should be continued for at least the first year of life and beyond for as long as mutually desired by mother and child.”
UNICEF, the United Nations Children’s Fund, believes that breastfeeding should “continue until the child is two years or older.”
WHO, the World Health Organization, recommends that a child breastfeed for at least two years.
AAFP, the American Academy of Family Physicians, recommends exclusive breastfeeding for six months and warns: “If the child is younger than two years of age, the child is at increased risk of illness if weaned.”
2. State Laws on Breastfeeding
The National Conference on State Legislatures provides a 50 States Summary of Breastfeeding Laws. Scroll down to your state for information on local breastfeeding laws. See below for information on Colorado law.
The U.S. government has a list of links to the state legislatures for the 50 states. Click on the link for your state and you can search for pending breastfeeding legislation and current laws.
La Leche League has a list of several resources on Breastfeeding and Family Law.
3. Particular Court Guidelines
Some family courts have written parenting plans with guidelines for visitation. Be sure to check whether there are any guidelines in your jurisdiction or for other courts in your state. They may or may not be in your favor. Either way you need to be prepared to address them.
4. Sample Letters to the Court
Lactation Consultant Arly Helm shared on the Lactnet public archives the letter she wrote to a family court in California.
Anthropologist Kathy Dettwyler, Ph.D., has written a sample court letter to use when the father claims continued breastfeeding is not relevant for custody decisions or that “extended” breastfeeding is inappropriate.
5. Other Considerations
A. Emotional Health. While it is easy to point to the medical benefits of breastfeeding, do not overlook the emotional benefits of breastfeeding as well. Breastfeeding gives a child emotional security and stability through a very difficult time in the family. Breastfeeding can be the one constant that sees a child through the divorce, the stress of the parents, and any change in living arrangements. Forced weaning could be quite traumatic for a baby (and possibly even more so for the older nursling). It will be important to take into consideration the child’s emotional health, which arguably would be best supported by continued, uninterrupted breastfeeding, and stands to be harmed by forced weaning or separation. If a court is not willing to support continued breastfeeding, then at a minimum there needs to be an allowance for gradual weaning.
B. Mother’s Milk Supply. To those inexperienced with breastfeeding, it sounds simple enough to require a mother to express her milk to provide for the baby while the baby is with the father. Not only would the court be unable to enforce a directive to express milk, some mothers who are willing to do so are unable to do so. Some mothers do not respond well to a pump, and pumping can be even more difficult in stressful times such as a divorce and unwanted separation from the baby. The baby is far more efficient at removing milk from the breast and maintaining the mother’s milk supply.
6. People Who Can Help
A. La Leche League. La Leche League has leaders in every state who will be able to provide free information and resources about state breastfeeding laws.
B. Local Lactation Professionals. Find a local lactation consultant who has experience with custody and visitation issues. In general a board certified lactation consultant will know more about and be far more supportive of breastfeeding than most local pediatricians. In their medical education, most physicians receive less than two hours of training in breastfeeding. You are lucky indeed if you can find a breastfeeding-friendly pediatrician (again, the local lactation professionals are the best resource to help you find such a doctor).
C. State and Local Breastfeeding Coalitions. Breastfeeding coalitions advocate for breastfeeding support and legislation and your local coalition might have information about the status of state law and about other custody and visitation decisions.
7. Colorado Law
In addition to laws regarding breastfeeding in public and in the workplace, Colorado has a legislative declaration that has several helpful statements recognizing the importance of breastfeeding and encouraging the removal of barriers to breastfeeding.
25-6-301. Legislative declaration.
(1) The general assembly hereby finds and declares that:
(a) The American academy of pediatrics recommends breastfeeding exclusively for the first six months of an infant’s life but continuing with other forms of nutrition for at least the first twelve months of an infant’s life and as long thereafter as is mutually desired.
(b) The American academy of pediatrics has continuously endorsed breastfeeding as the optimal form of nutrition for infants and as a foundation for good feeding practices. Extensive research indicates that there are diverse and compelling advantages to breastfeeding for infants, mothers, families, and society.
(c) Epidemiologic research shows that breastfeeding of infants provides benefits to their general health, growth, and development and results in significant decreases in risk for numerous acute and chronic diseases.
(d) Research in developed countries provides strong evidence that breastfeeding decreases the incidence and severity of diarrhea, lower respiratory infection, otitis media, and urinary tract infection.
(e) Research studies have also shown that human milk and breastfeeding have possible protective effects against the development of a number of chronic diseases, including allergic diseases and some chronic digestive diseases. In addition, human milk and breastfeeding may prevent obesity.
(f) In addition, breastfeeding has been related to the possible enhancement of cognitive development.
(g) Breastfeeding has been shown to have numerous health benefits for mothers, including an earlier return to prepregnant weight, delayed resumption of ovulation with increased child spacing, improved bone remineralization postpartum with reduction in hip fractures in the postmenopausal period, and reduced risk of ovarian cancer and premenopausal breast cancer, as well as increased levels of oxytocin, resulting in less postpartum bleeding and more rapid uterine involution.
(h) In addition to individual health benefits, breastfeeding results in substantial benefits to society, including reduced health care costs, reduced environmental damage, reduced governmental spending on the women, infants, and children supplementary feeding programs, and reduced employee absenteeism for care attributable to infant illness.
(i) Breastfeeding is a basic and important act of nurturing that should be encouraged in the interests of maternal and infant health.
(2) The general assembly further declares that the purpose of this part 3 is for the state of Colorado to become involved in the national movement to recognize the medical importance of breastfeeding, within the scope of complete pediatric care, and to encourage removal of societal boundaries placed on breastfeeding in public.”
8. Comments
Readers, please leave a comment if you have had experience dealing with breastfeeding, divorce, custody and visitation issues. Feel free to leave links to other helpful resources!
It is absolutely terrible to have to envisage putting the child’s health at risk, because the father wants to bottle feed. Breast feeding is proven to protect a child against all sorts of nasty infections, such as gastro-enteritis, chest and ear infections, etc. and also offers some protection against certain childhood cancers and juvenile diabetese (a potentially devastating disease that can even blind a child). That’s why the W.H.O. recommend that ALL children be breast fed for two years.
It is BABY’S BIRTHRIGHT. Also, it seems cruel for fathers to demand equal rights over their children, when it is mothers who have to go through the pain, discomforts and potential medical risks of pregnancy and birth, while men are lucky enough to be able to produce children very easily indeed well into old age. I, for instance, suffered hell from severe, unrelenting pregnancy sickness, and many women suffered much more than I did.
Don’t judge based on generalities. I’m a father of a one month old and live 275 miles away from my son. I can only see him 8 hours a week in the presence of my wife and her family, and of course, I have to give him to his mother when he is hungry. And I’m not allowed to see him feed.
We were facing foreclosure and bankruptcy in Michigan, and I got a job in Illinois where I am making 70% more than I did. My wife refused to come with me. Her “old” family was more important than her “new” family. I tried to make a better life for us, and she was content to see us struggle as long as we were 20 miles away from her family.
Now I’m the one suffering, and my wife doesn’t want me to have anything to do with my son and she has filed for divorce. Yes, breastfeeding is good, but it is unfair when used as a weapon and a punishment.
Do you have a son Penny? Would you want your son’s wife to use breastfeeding as a means to prevent overnight visitation for your son? How about seeing it from that angle instead of saying that because of labor, a mother has 100% say in everything? I work hard to be a good and involved father. Suffering happens with both genders – especially when the mother fails to communicate and agrees to nothing.
in connection with a custody case, a mom in canada was ordered by a judge to wean or pump her todder to give visitation time to the father. http://www.abajournal.com/news/wean_toddler_from_breast_milk_or_use_machine_judge_rules
Thanks for the link Jenny! The sad thing about that story is that the judge failed to recognize that it’s not just the milk the child craves. Expressed milk does not replace the comfort at the breast.
Oh man…I am humbly thankful that I am not faced with a situation like this poor woman, and may other women I’m sure. I can’t imagine having to wean my baby when he’s not ready. It makes me so sad for the little baby who needs the comfort of breastfeeding more than ever in a tough time like this!
My best friend went through a divorce in Idaho. She was breastfeeding and the judge ordered that as long as she was still breastfeeding she would be able to attend any visits the child had with the father. He had weekend and Wednesday evening visits, and the mom always went along in order to breastfeed the child when needed. I think this was an awesome arrangement for the baby!
I am saddened by all of this as I am going through a custody battle as well. I am forced to pump milk for my son’s father and my son will NOT take it from him, so the child goes without fluids, and now I suspect he is trying to give him formula b/c of the change in smell in his BM’s my little guy is 9 months and has just started going out on day visits with dad, but will be going out on overnights at 12 months. The thing I feel bad about is my DS is an avid breast feeder. He loves it and would always prefer the breast. He comes back from visits dehydrated, but there is something he is feeding our son that is making him have weird BM’s. I don’t think Colorado has the right to do this to anyone, but they do. My sons father didn’t see him until he was 41/2 months old and now he has night terrors, hates going to his dads, comes home crying and wants to nurse like crazy. He also does not let me go after these visits. I feel so bad I don’t know what to do for my baby. I provide all this pumped milk and NONE of it is given to my son while he is gone or while he was having visits at my home. I asked the father if he wanted to give him formula or had done so and he denies it. I just feel both of our God given rights have been stripped away. It’s not that I want to keep him from his dad, but I want him to have the breast milk. I can’t help he won’t take it from his father! The man is so unreasonable he won’t even show me if he truly has a nursery for the child. I think it’s at his mother’s house, but I have no right to fight that either. I am just feeling so unheard and ignored as the “father’s” rights seem more important than the childs.
Sasha, I’m so sorry you and your son are going through this. There are several suggestions in this post about getting a breastfed baby to take bottle of breast milk:
http://www.blisstree.com/breastfeeding123/getting-a-breastfed-baby-to-take-a-bottle-of-breast-milk-mom-to-mom-13/
I am going through something similar. My husband refused marriage counseling and trial separation. We agreed when we got married that I would quit work & be a SAHM. He worked until April when he was laid off. My family lives 125 miles away & I am staying with them for monetary & emotional support until I get on my feet. The law in TN says I cannot take them more than 100 miles away. He has filed an injunction for me to return the children to our marital home, yet I am restrained from seeing them except for supervised visits. I have no where to stay, no money to stay up there and my 7 month old is EBF. My husband agreed and supported my extended breastfeeding & our baby to self wean. Now, he is expecting me to just hand them over and let the baby stop breastfeeding. My lawyer is filing a counter to the injunction to have them stay with me at my childhood home. My husband has been working with me as far as shared custody of the oldest daughter. As he is not working, he gets her for a week and then I get her for a week. He sees the baby when we meet to exchange the oldest or if he comes down here to pick her up. I know he loves them and his logic is that he doesn’t want them to think that he didn’t fight for them. But, he hasn’t thought any of this through. He doesn’t think it will be that big of a deal to take an nursing infant from its mother without having severe emotional consequences. I know that eventually she will have to be weaned so he can have her for overnight visits, but what gets me is that he whole heartedly supported her self weaning. In fact he praised me for the decisions I made for our children.
My lawyer is telling me to start weaning her and my response was, “I am trying.” But, she is not ready yet. I cannot, in good conscience, hand the baby over, even if temporarily, while she is nursing.
Jessica,
You do not have to wean if you and your child are not ready! I still nurse my little one and she has had an overnight for a few months now! If your lawyer is telling you to “start weaning” I cannot emphasize enough that YOU NEED TO FIND A NEW LAWYER! I am so sorry! When I first met my lawyer and she found out I was nursing her response was “Good for you”. My husband’s lawyer tried to tell my lawyer that I needed to wean and my lawyer did not go along with that at all! My little one is older than yours too! Your little one is only 7 months old! It is crazy for your lawyer to expect you to wean if your nursing relationship is going so well! I’m so sorry! Hugs! Laura
Do your research girl! And if you can find a more supportive lawyer…DO IT!
I too am a breastfeeding mother who has had to experience divorce early in my child’s life. My daughter was not quite 2 year’s old when my husband said he wanted a divorce. She was an avid nurser, and she still is! I spent a lot of time and money coming up with a visitation schedule that pleased both my husband and I. We attended Early Neutral Evaluation for visitation issues and that was helpful. You may want to see if your state has this option. I feel that there is no reason a mother should not be able to continue to breastfeed their child, including throughout the divorce process! If you can continue to breastfeed throughout this stressful time DO IT! I know that this is a scary time full of many tears and emotions! I agree that Le Leche League is a wonderful source! Aside from the breastfeeding issue, there is also the issue of attachment! I did a lot of research online regarding the importance of attachment to a child, as well as the importance of being close to that primary caregiver/attachment figure during the early years of life (even during divorce and visitation schedules). I know that most professionals believe that infants and toddlers should remain with their primary caregiver/attachment figure for the overnight hours, and that implementing overnights into visitation schedules for infants and toddlers should be a gradual process. Most professionals also advocate for “short and frequent visits for infants and toddlers”. I found the book, “Mom’s House, Dad’s House” helpful. Also, you can go online and find many documents and articles advocating for gradual increase in visitation and overnights for infants and toddlers. They also say that when overnights do begin they should be “nonconsecutive” overnights. The Supreme Court’s recommendations agree with a lot of this too. My divorce process started six months ago, and it is now just to the final stages! I spent a lot of time and money with a good lawyer who was supportive of attachment parenting and breastfeeding issues. I strogly recommend obtaining a lawyer who is comfortable with these issues, it was definately worth it for me. Our schedule started out as Monday and Wednesday 4 to 7 pm and Saturday’s from 8 to 4 pm. We then worked up to having one overnight on the weekend. We will soon start a second overnight on one of the weeknight visits.I continue to nurse my little sweetie and she now goes on one overnight a week. We have been able to maintain that nursing relationship while having a visitation schedule with her dad.
Thank you so much for this info! I have a 4 month old that is strickly a breast fed baby and his dad wants to get overnight visitaions with him. Although he has shown no interst in my son and even went through a DNA test. This is my sixth child and my 4th that I have nursed, I know whats best and I needed to be more educated when it came time to talk to the GAL! Thank you! Thank you! Thank you!
Kristin