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April 4th, 2007, 02:03 PM
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Breastfeeding Really a Visitation Issue?

By Elizabeth N. Baldwin, Esq. & Kenneth A. Friedman, Esq.

Breastfeeding mothers involved in family law cases are frequently challenged to protect the breastfeeding relationship. Why? Because society remains largely uneducated about breastfeeding, because the legal system reflects society's unenlightened attitudes, and because many people erroneously conclude that breastfeeding prohibits a close father-child bond. Protecting the breastfeeding relationship, however, means more than it says.

Family Law Cases

Family law cases pertaining to visitation or custody of nursing children generally revolve around two issues. The first is the importance of breastfeeding as a form of nurturance beneficial to the child, and not in any way harmful. The second is the psychological effect of maternal separation on the child. Many mothers mistakenly believe that to sustain ongoing contact with their nursing children they need only prove how beneficial breastfeeding is. In most cases, though, the primary question is how to fashion a visitation or custody plan that will both promote the child's bond with the father and avoid imposing long periods of separation from the mother.

Judges usually do not want to hear about limiting a father's visitation simply because his child is breastfed. A court will base its decision on "the importance of breastfeeding" only when allegations have been brought against the mother for nursing - when, for example, a father has claimed that continued breastfeeding is harmful or apt to "spoil" the child. In one case, breastfeeding was scrutinized because the toddler had dental caries. In such situations, it may suffice to prove the benefits of breastfeeding, or at least disprove the cause-and-effect assertions.

In other instances, mothers are ill served by opposing a father's requested visitation solely on the basis of breastfeeding. Some mothers, for instance, have asked judges to deny overnight visits with dad until their child has self-weaned. To protect the father-child relationship in such cases, a judge may decide that the child should wean immediately or that the mother should pump her milk. After all, what if the child nurses until 4.2 years of age - the worldwide average age of weaning? Or until age five or six?

In truth, older children can easily endure overnight separations from mother and still continue breastfeeding. The cause for motherly concern in these instances is not breastfeeding, but rather mother-child separation.

The Importance of Breastfeeding

Proving the superiority of breastmilk is a relatively easy task. Who does not know that breastmilk is nutritionally superior to formula? Who really believes that milk designed as the perfect food for baby cows is better than milk designed as the perfect food for human infants? Due to recent publicity about the benefits of breastfeeding, substantiated by documentation from the American Academy of Pediatrics, most people know that mother's milk provides all the nutrients a baby needs, in exactly the right proportions. Some people are even aware that breastmilk is the perfect "brain food," and that it contributes to elevated IQs in middle childhood.(1)

A less commonly known fact is that human milk cannot be duplicated. For one thing, not all of its components have been identified. For another, no two mothers produce identical milk. A mother's milk is specifically suited to her particular child. As the child matures, the composition of the milk changes, so that at one year of age, the child is receiving increased amounts of antibodies and other immune enhancers - nature's way of ensuring maximum protection for the growing child who is nursing less often.(2) Composition changes occur during individual feedings as well. The rich hindmilk at the end of a feeding is very different from the more watery foremilk at the beginning of the feeding.(3)

Lawyers and judges may need to be educated in these matters. They may also need to be informed of the protective value of breastfeeding. While perhaps aware that breastmilk reduces the likelihood of gastrointestinal infections, respiratory and ear infections, pneumonia, meningitis, and a host of allergies,(4) they may not know that breastmilk helps guard against juvenile diabetes,(5) lymphomas (childhood cancers),(6) Crohn's disease,(7) celiac disease,(8) and a number of chronic liver diseases.(9) Or that breastfeeding lowers the risk of sudden infant death syndrome.(10) Or that breastfeeding reduces a mother's risk of developing breast cancer(11) and ovarian cancer.(12)

Breastfeeding is not a lifestyle choice; it is a health choice, for both mother and baby. And thus, it is hard to imagine that any judge aware of the research would tell a mother not to breastfeed!

Mother-child Separation

Mothers who wish to avoid "standard visitation" - defined in most states as every other weekend, and one or two weeks in the summer - must prove that mother-child separation impacts on subsequent child development. They must also provide reasonable visitation alternatives that are feasible for parents and child alike.

Mother-child separation concerns are not restricted to breastfeeding mothers. They apply to any mother and child who share a close bond and who have not experienced significant periods of separation from each other. If a bottle-fed child has been "tucked under mom's wing" since birth - sleeping with her, spending entire days with her, and never being apart from her for more than a few hours - then this child, like most breastfed children, will be distressed by overnight night separations.

To tell a judge that weekend visitation is not appropriate because the child is breastfeeding is a misleading statement. Only in the case of young infants will separation jeopardize the breastfeeding relationship. What separation actually jeopardizes is the close, loving relationship between mother and child.

Forming a close bond with one consistent and loving caretaker is an essential need in childhood. Many child development specialists believe that children who are not given the opportunity to form such a bond, or who experience disruption in the bonding process, will have serious attachment problems throughout their lives. Evidence indicates that youngsters who form and sustain a close bond early in life, compared with those who do not, are better able to form and sustain close bonds later in life.(13) By the same token, youngsters who are deemed "emotionally healthy" are generally viewed as "securely attached" to their primary caretaker.(14) For breastfeeding children, that person is the mother.

Why? Because breastfeeding is an interactive process that helps a mother respond consistently and immediately to her baby's needs. The milk is ready - with no need for sterilizing, preparing bottles, or mixing formulas - and the temperature is perfect. Baby signals a need; mother responds on cue. And the more responsive she is, the more securely attached her child will be.(15) The consistency in maternal responsiveness establishes a foundation of trust during baby's first year of life, creating a dependable pattern that allows for the development of satisfying relationships in the future.

In effect, breastfeeding intensifies the mother-infant ties that are born of biology. The breastfed infant is uniquely dependent on the mother. The breastfeeding mother is her child's primary caretaker and primary attachment figure; only after bonding securely with the mother does the child go on to bond with the father and siblings. So it is the mother bond, one of the by-products of a close breastfeeding relationship, that needs to be protected in the courts. Disruption of this primary bond can cause psychological problems for the rest of the child's life.(16)

Proving the Issues

Proving the superiority of breastmilk is fairly simple. Begin by asking your lawyer what types of experts are likely to be well received in your jurisdiction. The courts may prefer the baby's pediatrician or other physician. Board-certified lactation consultants and La Leche League Leaders are also qualified to testify.

Testimony on your behalf should include the health benefits to mother and child, as well as any extenuating circumstances, such as a family history of allergies or breast cancer. Contesting visitation of any sort is sure to spell disaster: the judge may very well tell you to pump. If your child is an infant, see if dad can spend time with baby at your house. That way, you can remain out of sight, yet within earshot and available for nursing.

Proving the effects of separation is a bit trickier. Some judges refuse to allow pediatricians, lactation consultants, or La Leche League Leaders to testify to the psychological impact of mother-child separation. Most often, such effects must be proven by a mental health professional - a psychiatrist, psychologist, or other child-oriented therapist. Again, ask your lawyer about the types of experts who are best recognized in your jurisdiction.

Before asking any experts to testify, screen them well. Determine their points of view: Do they value children's feelings? Do they value children's dependency needs? Also be sure that your lawyer knows exactly what each witness will testify to.


Try to settle custody and visitation disputes with baby's father, if at all possible. Your lawyer can submit to the court a written agreement that reflects your decisions. As parents, you can make better decisions for your child than can any judge or hearing officer. Placing your child's future in the hands of a stranger is not your best option.

If you cannot reach agreement with each other, see if your lawyers can settle the issues. Or try mediation;(17) some states that do not require mediation will order it upon request. Whichever form of settlement you choose, attempt to resolve custody and visitation issues before tackling financial matters. Child support and alimony discussions can spark emotional flare-ups.

Keep anger out of your negotiations. Unresolved anger is lethal: not only will it jeopardize your chances of settling, but it will spill over into your child's life and into the courtroom. If you are feeling a great deal of anger, try counseling. The judge, for one, will look favorably upon you for doing so.

Remember that every child is entitled to a close, loving bond with two parents. If you do not want your child to maintain a relationship with dad, examine your motives: are you angry, or concerned that he may not be a "good enough" father? If the judge thinks that you do not want your child to have a relationship with dad, you will have a difficult road to travel. Of course, if dad poses a real and present danger to your child, discuss the matter with your lawyer before taking action.

Obtain good legal advice and representation as early as possible. Seek out an attorney experienced in family law cases, and educate your attorney on the breastfeeding and separation issues so that he or she can in turn educate the judge. While conversing with your lawyer, remember that personal beliefs are far less important than the ability to understand your parenting choices and to serve as your advocate.

Devise a practical visitation plan that builds up to the visitation sought by baby's father. What type of arrangement do you want now? What age would be appropriate for an overnight stay with dad? A full weekend visit? A week-long sojourn?

Short, frequent visitation is always best for a young child. Increasing the duration of visits every few months also seems to work well. What will work best for your child hinges on your particular circumstances: How far apart do mom and dad live? What are dad's working hours? What interest has he shown in visiting?
Don't go for the bare minimum. Instead, think carefully about what your child can handle. For example, an 18-month-old who may not want to be apart from mom for more than an hour or two may still be able to cope with several hours of separation in the interest of being with dad. A good visitation plan protects the child's bond with each parent.

Ignore anyone who tells you to run and hide with your child. Mothers who leave home with their children, out of fear of harassment or fear of separation from them, are heavily penalized. In most cases, they lose custody to the father and, once found, are thrown in jail. Held in contempt of court, these women are sometimes separated from their children for months.

Get the facts before the court. Talk to your lawyer about the factors considered most important in your jurisdiction. Many courts, for example, want to know who the primary caretaker is, who the child is primarily attached to, and which parent will provide the other with better access to the child.
So do your homework. Give your lawyer a list of all caretaking activities you currently perform and have performed since your child was born; also submit a list of caretaking activities performed by baby's father. Help your lawyer prove that you are your child's primary attachment figure, and that your child has a very close and loving bond with you. Make sure the judge knows that you want your child to have an ongoing relationship with dad and that you will facilitate the process by providing him with easy access to the child.
In family law cases, the key words are "the best interests of the child." Their importance, however, is often lost in a litigious war.

No child should have to become a pawn in a custody or visitation battle And no breastfeeding mother should attempt to use breastfeeding as a sword against her child's father, when it is really a shield for the child. The best way to protect the breastfeeding relationship is not to do battle out of fear, but to empower yourself with knowledge and offer your child the best relationship possible with both parents.

Visitation and the Breastfed Child

The best visitation plan for a breastfed child will promote the child's bond with dad without causing drastic separations from mom. And the best way to draw one up is to look at dad's role prior to the break-up of the marriage.

New fathers of breastfed infants learn quickly that they are not the primary caretakers of their little ones. When baby cries in the middle of the night, dad finds that he does not have the equipment to meet the need. Most often, there is no point to even waking up from a sound slumber. When baby fusses and wants to be held while mom takes a shower or a well-deserved break, dad learns once again that there is no substitute for mom.

Virtually every father of a breastfed infant experiences rejection from that tender bundle of love, at least in the early weeks of parenthood. Yet, while dad is unable to play a starring role in meeting the needs of the nursing infant, his supporting role is vital to the family unit. And as baby grows, dad's role becomes much more direct and important.

To begin fashioning a visitation plan for your baby, sit down and make a list of all the things that dad does for or with baby. Then create a schedule that accommodates these activities. If dad is in the habit of walking with baby in the morning while mom fixes breakfast or takes a shower, try to incorporate this activity into your visitation plan. If each evening after dinner dad and baby like to play together on the bed, or tickle and sing together, try to include these events. Make sure that you and your spouse avoid competing for nurturing time. Remember that fathers become more strongly bonded with their children as time passes. Remember, too, that mothers who nurture children day and night are just as eager for a break after the divorce as they are before it.

Also avoid letting anger obscure your goals. Issues that led to the breakup do not belong in visitation discussions. You owe it to your child to treat your spouse with respect and civility. You owe it to yourself as well. Too often, when a child becomes a pawn in the war between spouses, or a magnet for the anger that doomed the marriage, the judicial system intrudes with a schedule of its own - one over which parents have little, if any, say.

The status quo ante is a good starting point for toddler-based visitation plans, too. If dad is accustomed to biking the child to the local playground for an hour in the evening while mom goes to the grocery store, fixes dinner, or takes time out for a rest, then these are the activities to be incorporated into the plan. Older children are often ready for even longer adventures with dad, such as trips to the zoo, the circus, and the beach.

Visitation for toddlers should not encompass too many "for the child's own good" rules. Nor should it invite competition to see which parent can nurture the child best. Instead, try to find ways to talk to each other about your child's emerging needs and preferences. And keep core issues such as diet, medical care, and education forever within the realm of joint decision making.

One key to an amicable visitation plan for a child of any age is flexibility. No one benefits when children are forced to do anything against their will. If your schedule calls for a few Saturday morning hours with dad, for example, and your child comes down with a fever on Friday - refusing to be out of mom's arms for any extended period of time - do what you can to bend the schedule. Honor the child over the plan.

Another key to success: avoid setting dad up for failure. Establish visitation at times that are convenient for him and comfortable for your child. Also put off overnight visitation until your child is ready for it.

Above all, brush up on your communication skills. Despite your anger, work as a team for your child. Listen to your youngster; and remember that crying spells, like words, express important needs, wants, likes, and dislikes. Finally, rather than burden your child with your anger and hostility, strive to be a constant source of love and attention.

In an ideal world, nothing would stop divorcing parents from nurturing their child's two most precious bonds. In our less than ideal world, tempers flare, anger seethes, and vengeance sometimes calls the shots. Even so, nothing in our world can stop divorcing parents from making a firm commitment to putting their child first, resolving their visitation disagreements amicably, and ensuring their child's entitlement to a loving relationship with two parents.


1 A. Lucas et al., "Breast Milk and Subsequent Intelligence Quotient in Children Born Preterm," The Lancet 339 (1992): 261 262.
2 A. S. Goldman et al., "Immunologic Components in Human Milk during the Second Year," Acta Paediatr Scand 72 (1983): 461 462.
3 S. E. J. Daly et al., "Breastmilk Fat Content Increases with the Degree of Breast Emptying," Proc Ntr Soc Aust 16 (1991): 126.
4 A. S. Cunningham et al., "Breast-Feeding and Health in the 1980s: A Global Epidemiologic Review," J Pediatr 118, (May 1991): 659 666.
5 J. Karjalainen et al., "A Bovine Albumin Peptide As a Possible Trigger of Insulin-Dependent Diabetes Mellitus," N Engl J Med 327, no. 5 (30 July 1992): 302 307.
6 J. Schwartzbaum et al., "An Exploratory Study of Environmental and Medical Factors Potentially Related to Childhood Cancer," Med & Pediat Oncology 19, no. 2 (1991): 115 121.
7 O. Bergstrand and G. Hellers, "Breast Feeding in Infancy in Patients Who Later Developed Crohn's Disease," Scand J Gastroentero 18 (1983): 903 906.
8 S. Auricchio et al., "Does Breastfeeding Protect against Celiac Disease in Children?" J Pediatr Gastro & Nutr 2 (1983): 428 433.
9 J. N. Udall, Jr., et al., "Liver Disease in Al-Antitrypsin Deficiency: A Retrospective Analysis of the Influence of Early Breast-vs-Bottle-Feeding," JAMA 18 (1985): 2679 2682.
10 A. Mitchell et al., "Cot Death Supplement: Results from the First Year of the New Zealand Cot Death Study," N Z Med J 104 (1991): 71 76.
11 A. McTiernan and D. B. Thomas, "Evidence for a Protective Effect of Lactation on Risk of Breast Cancer in Young Women," Am J Epidemiol 124, no. 3 (1986): 353 358.
12 M. L. Gwinn et al., "Pregnancy, Breast Feeding, and Oral Contraceptives and the Risk of Epithelial Ovarian Cancer," J Clin Epidemiol 43, no. 6 (1990): 559 568.
13 Elliott Barker, "The Critical Importance of Mothering," Mothering, no. 47 (Spring 1988): 17 23; and Selma Fraiberg, Every Child's Birthright (New York: Basic Books, 1977) and The Magic Years (New York: Charles Scribner's Sons, 1959).
14 Securely attached children, compared with those who are anxiously attached, are more enthusiastic and persistent in solving easy tasks, and more effective in using assistance from a caregiver when tasks become more difficult at age two. At three and four, they are more flexible, curious, socially competent, and self-reliant. Securely attached children are also more sympathetic to the distress of their peers, more assertive about what they want, and more likely to be leaders - findings that persist throughout the elementary school years. L. Matas et al., "Continuity of Adaptation in the Second Year: The Relationship between Quality of Attachment and Later Competence," Child Development 49 (1978): 547 556; and E. Waters et al., "Attachment, Positive Affect, and Competence in the Peer Group: Two Studies in Construct Validation," Child Development 50 (1979): 821 829.

15 Mary Ainsworth's Strange Situation study found that mothers of securely attached children are more responsive to the feeding signals and crying of their infants, and more likely to return their babies' smiles. M. D. S. Ainsworth and S. M. Bell, "Attachment, Exploration, and Separation: Illustrated by the Behavior of One-Year-Olds in a Strange Situation," Child Development 41 (1970): 49 67.
16 John Bowlby, the father of attachment theory, warned against separating children from their mothers, asserting that children who undergo maternal deprivation are at increased risk for physical and mental illness, and likely to be irreversibly damaged by age three. J. Bowlby, Maternal Care and Mental Health (Geneva, Switzerland: World Health Organization, 1951; and J. Bowlby, Attachment and Loss, vols. 1 and 2 (New York: Basic Books, 1969). A large body of empirical evidence confirms Bowlby's claims, acknowledging that attachment to a caregiver is a major part of a child's early social life, and that successful early attachments are necessary precursors to psychological growth and adaptation. See R. Karen, "Becoming Attached: What Children Need," The Atlantic Monthly (Feb 1990): 35 70.
17 See "Mediation: Perils, Pitfalls, and Benefits" by Vivienne Kramer, in Mothering, no. 65 (Fall 1992): 100 107.
For More Information

Cunningham, Allan S., Derrick B. Jelliffe, and E. F. Patrice Jelliffe. "Breast-feeding and Health in the 1980s: A Global Epidemiologic Review." Journal of Pediatrics 118, no. 5 (May 1991).
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