February 14th, 2023

Navigating the Intersection of Breastfeeding and Custody: Balancing Baby’s Best Interests

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Author: Sondra M. Douglas

Mother breastfeeding her child

Recently, there has been an uptick in a mom’s “right” to breastfeed a child during a custody battle including a recent case that garnered national headlines. The law has continuously evolved on this subject, and your experience in court depends on your venue. Yes, rulings are not identical as judges are people who view evidence through the lens from which they have experienced life. The judge sitting on the Eastern shore of Maryland views life a bit different than the one in the District of Columbia.

When I first started practicing law and a woman asked, “does breastfeeding impact the access schedule?”, my answer was a resounding yes! Now my answer to the same question, decades later is, “it depends, tell me more.” From my view, the court has made great strides toward valuing dads as co-parents who are worthy of receiving shared custody time.

Let’s talk about context for a moment. Each family law case is unique; there is not a one-size-fits-all approach or solution.

Here are some questions that I would normally ask my client, irrespective if that client is mom or dad:

1) Are there any older siblings, and if so, were they breastfed?

The why behind the question: I remember a seasoned Judge shared her rationale on access schedule rulings, and I have never forgotten it. This judge would always try to mirror the access schedule as close as possible to what the children experienced during the totality of the parents’ relationship. If the infant has an older sibling that was breastfed for a longer period, it supports an argument that the parents had a family commitment to breastfeed their children. Why does a family’s history matter? In family law, one may argue a pattern of behavior is evidence of an enforceable agreement. Agreement’s may support a courts status quo decision.

2) What is your proposed access schedule?

The why behind the question: I always ask this question as it allows me to gauge the temperature of my client’s expectations. Long gone are the days of “mothers know best” as a practitioner’s leading argument, although I still use it in my house. The research has progressively shown that infants benefit from parents’ routine access to their little bundles of joy. Every other weekend schedules do not comport with the research, nor do they reflect the best interest of the infant in most cases (best interest of the child – the golden standard and buzz words in custody cases).

So whose right is it anyway? The right to be breastfed is really the right of the child, as they are the recipient of the benefit, similarly to child support being for the benefit of the child. However, if it was that clear cut, I wouldn’t be writing about it. The court has started to balance the rights of both parents’ access to raise their children from two different households coupled with the benefit of the child to be nourished with breastmilk. Yes, there is an abundance of research to support the benefit of a child being breastfed, but the analysis cannot stop there, although it used to. Once I nail down specific intentions, the next step is to evaluate how the child may enjoy the best of both options, the breastmilk and time with their father/non-nursing parent. This is where the real work comes in for the parents; a baby is a baby for a fleeting moment. A flexible schedule between the parties is key. The beauty of negotiation is you can include whatever terms work for your co-parenting dynamic. It may include your ex-partner meeting you in the parking lot to let mom nurse the baby and maintain her milk supply, or dad driving the baby to mom’s work or home every two hours, or mom becoming a pumping machine and storing milk as fast as she can. By any means necessary (yes, I just quoted Malcom X in a family law article) – with the child at the center. My point is, when you are flexible and willing to sacrifice convenience, an agreement is possible. When you roll the dice and let a judge decide your child’s fate you may hear “a child’s too young to be moving so much” or “give the child a bottle/formula, they will be ok as I turned out alright.”

The court seeks to become a champion for a rapid growing infant’s right to develop and gain the benefit of each parent. The court appears to be listening to a parent’s desire to experience the infant’s first tooth or joy of watching them crawl. The ability for the parents to share these firsts is being balanced against the benefits of breastfeeding. Each party has to ask themselves, “How can the child win without sacrificing other key developmental experiences for the child?” The world is your oyster parents, and it starts and could end with a settlement agreement. Should you choose litigation, remember that the court system consists of imperfect people seeking justice through their life experiences that may not align with your values and priorities. What a great motivator to settle with the win of your child in mind. May the settlement, breastfeeding, co-parenting dynamic forces be with you.