How Does Joint Custody Work With Breastfed Children?

By Heather Frances J.D.

Mother and baby

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Parents who divorce while their child is very young might be faced with a difficult custody issue if the child is breastfed, because it's impractical for breastfed children to be separated for long periods from their mother. While only a handful of states currently address breastfeeding in their statutes, any judge may consider breastfeeding when making his custody decisions.

Parenting Agreements

State laws govern custody issues, and laws vary among states. All states encourage parents to reach their own parenting agreements about what type of custody each parent will have and when the child will visit each parent. If the parents can reach an agreement, the court will typically approve that agreement if it's in the best interests of the child. If the parents can’t reach an agreement, the court will step in and make a custody determination. Parents of a breastfed child could reach an agreement that allows the father to visit the child but permits breaks when the mother can come feed the child every few hours as breastfeeding demands. Alternatively, the mother could agree to express her breastmilk so the child can stay for longer periods with the father. Parents can agree to almost any arrangement that works for them as long as the arrangement is also good for the child.

Joint Custody

Joint custody can refer to joint legal custody or joint physical custody, or both. Joint legal custody means that each parent has authority to make important decisions for the child, such as where he goes to school and whether he should receive medical treatment. Joint physical custody typically means that each parent has the right to spend significant time with the child -- it doesn't necessarily mean a 50-50 split of time with each parent. With a breastfed child, however, it's even more unlikely that the arrangement will resemble an even split, because the child must spend so much time with the mother.

States With Breastfeeding Laws

As of 2012, a few states have laws that specifically address breastfeeding while several others have enacted legislation that deals with breastfeeding in some form. In Maine, a judge must consider whether the mother of a child under one year old is breastfeeding when the judge determines parental rights and responsibilities. In Michigan, one of the factors a judge must consider when determining allocation of parenting time is whether the child is under six months old and breastfeeding or under one year old and receives a substantial portion of his nutrition through breastfeeding. In Utah, a judge may consider that a nursing child’s lack of reasonable alternatives when determining whether the default custody schedule should apply to a particular case.

States Without Breastfeeding Laws

Even in states without breastfeeding laws, a judge can consider breastfeeding when making a custody determination since custody is to be awarded according to the best interests of the child. Some states also take age into consideration when they determine custody arrangements. For example, Texas does not apply a standard weekend visitation schedule for children under age three. Even in states that do not directly address breastfeeding, the judge could make an order permitting the mother to have more time with the child due to breastfeeding. The order could include a different parenting schedule when the child gets older, or the father could go back to the court for a modification of the custody arrangement when the child is no longer breastfeeding.