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Breastfeeding and Divorce

By Elizabeth N. Baldwin, Esq.

We provide articles from our publications from previous years for reference for our Leaders and members. Legal information changes rapidly over time. Consequently, much of the information in this article is no longer relevant or accurate and this article should not be used as a reference.

I received an e-mail message from someone wanting information on how mothers can protect the breastfeeding relationship in divorce cases. Apparently, this person has a friend whose husband left while she was pregnant. She wants to breastfeed, and wanted to know what information was out there to help.

First, in most states the primary goal is to help the child to have a bond with both parents when they separate. It does not matter if they were married or not. Breastfeeding is usually recognized as best for the child, but the courts will not pick breastfeeding, or one parent's bond, over the other. The best way parents can protect the breastfeeding relationship is to show how the father's bond can be encouraged and promoted, while the mother's bond and breastfeeding are not disrupted. With a young baby or child, this generally translates into short, frequent visits, gradually increasing [in duration] as the child grows older.

Most jurisdictions assign standard visitation - every other weekend - which is really designed for school age children. Very few jurisdictions deal with under school age children, and weekend visitation can be very difficult for a baby or young child to handle, breastfed or not.

Texas has standard weekend visitation that does not apply to children under the age of three. With young children, the Judge must look at many different factors in fashioning visitation. One circuit in Florida has developed visitation guidelines that take into consideration the needs of young children. It calls for short, frequent visits until age two, at which time one overnight visit would take place. Weekends would occur at age three, and week long visits in the summer after kindergarten. Although many experts believe that this is best for securely attached children (those not accustomed to lengthy separations from a primary caretaker), there are many cases that order lengthy and inappropriate visitation. I have seen a three-month-old baby sent off for two weeks in the summer, several four-month-old babies sent away for four-day visits every other weekend, and thirteen-month-old breastfed babies ordered to be with the father, with no contact with the mother, for four weeks in the summer.

Judges are usually lawyers, and are not expected to be trained in child development or separation needs. Many in our society do not consider nurturing our young a priority. I firmly believe that the father's bond is just as important as the mother's bond. However, the father's bond flows from the secure base the child has with the mother. The mother's bond is born of biology. This baby grows inside her body, and is nurtured from her body. If a mother is unable or unwilling to nurture her baby, and be this primary attachment figure, then certainly it would be important to see if the father is able and willing to fill this role. However, it is important to recognize the importance of babies having a mommy AND a daddy, not a mommy OR a daddy.

The best way to protect the breastfeeding relationship in a family law case is to keep anger out of it, recognize that the baby needs a bond with both parents, and work together for the child. Parents can settle their cases many different ways. That is what mediation is all about! And you can have visitation that really works for your child by settling. Letting a judge decide a case is often like playing lotto. Help your child to have a good relationship with Daddy. Keep things flexible. Remember that children need frequent and continuing contact with BOTH parents!!

One of the easiest ways to lose your family law case is to go in very angry, bash the other side, and try to restrict or supervise the other's access to the child. Unfortunately, this is what many parents do. In the rare situation where there is true, significant and provable abuse, the parent must have good legal advice, and be able to prove the facts in a legally sufficient way. Alleging that the other parent is abusive is done so often it may fall on deaf ears. Proving that the other parent is abusive to the parent is not enough in most places to restrict visitation, as there needs to be clear proof that the parent would be an actual danger to the child. Keep in mind that when abuse is alleged, and restraining orders given, the courts generally will not be likely allow the parents to have frequent contact with each other. This usually results in the baby going off for visits without the mother ever being allowed to be present, and for longer visits. If short, frequent visits are not possible for any reason, the courts often see no choice but to order the every other weekend visitation, which involves less contact between the parents.

As courts will try to encourage both parents' bond, if one parent is trying to keep the child from the other, they may be deemed unfit for this reason. This can be grounds to give custody to the other parent. For example, moving far away, or fleeing, usually results in the other parent being given custody. Alleging abuse and asking for very restricted visitation has resulted in custody being given to the other parent in several cases. The court may conclude that the parent will not give good access to the child, and will poison the child's mind against the other parent.

In fashioning visitation for young children, I strongly recommend that parents work together, keep visitation flexible, responsive to the child, and frequent. If that isn't possible, and they need a fixed, rigid visitation plan (which is generally NOT best for the child), there are a variety of factors parents can look at to determine a schedule. What separations is the child accustomed to now? How far apart do the parent's live? What are their schedules like? These are some of the factors I look at when assisting parents in developing realistic, parenting plans, or when I am asked to make recommendations regarding parenting time.

It can be very difficult to protect the best interests of the child. Often it is not convenient to the mother or the father. Remembering that our children are babies for such a short period of time, and that they need to have love from as many people as possible can help. Counselling is viewed as a very favorable thing to do - to help deal with the inevitable anger that results from a relationship ending, to help develop communication skills and to learn how to de-escalate situations where the fighting stops.

I also wrote an article entitled "Is Breastfeeding Really a Visitation Issue" that addresses much of this. It was published in Mothering Magazine, Fall 1993 issue. [And available at this Web site by accessing the link above.]

Elizabeth N. Baldwin was an attorney and family mediator in private practice with her husband, Kenneth A. Friedman, in Miami, Florida. She died in March 2003 after an extended illness. Her family law practice primarily focused on protecting young, securely attached and breastfed babies in divorce cases. Elizabeth was also a La Leche League Leader, and a member of LLLI's Professional Advisory Board, Legal Advisory Council. She published numerous articles on breastfeeding and the law, and often spoke at conferences. She assisted hundreds of parents involved in breastfeeding legal cases, and provided information and help to parents, attorneys and other professionals dealing with these issues.

Copyright 1995, all rights reserved. This article may be printed out for personal use but may not be reproduced in any other manner nor for any other purpose without permission.

Last updated Monday, August 2, 2006 11:38 PM by sjs.
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