Well Being

Breastfeeding, Divorce and Custody Issues

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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!

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