How the Legal System Impacts Breastfeeding
By Jenn Director Knudsen
A couple of years ago, Kathryn Lask of Shawnee Mission, Kan., found herself in a not uncommon, yet very unenviable situation: She was a nursing mother going through a divorce.
The mother of two young children, Lask was nursing her then 18-month-old son, Nicholas, with no plan to wean him until both she and her child were ready, she says. But her soon-to-be ex-husband—who’d temporarily been granted custody of both kids—with the aid of his attorney, wanted Lask to wean Nicholas to allow for more uninterrupted time with the toddler.
The issue of breastfeeding made an already emotionally and legally complex situation even more so.
“[This situation] is not at all uncommon,” says Mary Lofton, a La Leche League International spokesperson who has represented the organization in various capacities since the 1960s. In her decades of experience, Lofton, based in Schaumburg, Ill., says she’s seen an increase in the number of divorce, custody and visitation cases involving nursing mothers and their babies.
One reason among many is the rise in divorce rates among couples married only a few years. These people tend to have younger children; previously, couples were splitting with elementary-age kids in tow. As unfortunate a trend as this is, Lofton says the key is to maintain the nursing relationship—for the sake of Baby, Mommy and Daddy. How can this be done?
Answers vary from state to state, county to county and even case to case. But there is still some important information nursing mothers going through a separation or divorce should know.
Divorce and Breastfeeding: Medically Speaking
“Breastfeeding is no longer considered to be just a lifestyle choice, but a health choice for Mother and Baby,” wrote the late Elizabeth N. Baldwin, an attorney, family mediator and La Leche League Leader, who was considered a foremost expert on nursing and divorce.
In a 1995 article Baldwin cites a UNICEF newsletter that reports breastfed babies have much lower rates than their formula-fed counterparts of death, meningitis, childhood leukemia, diabetes, respiratory illnesses, obesity, developmental delays and ear infections, among other ailments. And nursing is good for mommies, too—breastfeeding mothers have lower rates of breast and ovarian cancers.
UNICEF is not the only organization who recognizes the importance of breastfeeding. The American Academy of Pediatrics recommends mothers nurse their babies at least through the first year.
Lofton recognizes that despite all of this, some women may choose not to breastfeed. In those cases a woman may decide, upon the advice of her physician, to use an infant formula, she says. But just because some women would choose to use formula doesn’t mean that choice should be forced upon all women by the courts.
Breastfeeding and Divorce: Legally Speaking
Divorcing a spouse can devastate the nursing relationship. Ideally, a couple should work out arrangements on their own so that every party is satisfied, Lofton says.
Of course this doesn’t always happen, and often the courts are brought in to mediate. The legal institution emphasizes a child’s need to bond with both his parents, so the nursing process can suffer; a mother may feel compelled by the law to wean her child. Yet, Lofton and others maintain that divorce is no reason to wean a baby entirely.
Lask refused to wean her toddler, even when her state’s court mandated for six weeks that she leave the family’s home and her husband get full custody of their two children. Her husband had been very supportive of extended nursing when Lask was breastfeeding their daughter, Meg, into toddlerhood. But during the divorce proceedings, Lask says he believed nursing Nicholas beyond a year was “superfluous,” and he worried Lask would become the “preferred parent.”
Lask says she had no intention of using nursing to keep her son from his father, but was resolute in her commitment to breastfeeding. “I wanted [Nicholas] to have something that was still the same,” she says of his life thrown into tumult at a very young age. At the time, she was nursing him five times a day.
Lask worked around the brief court order. In the dead of winter, she drove from her apartment to her old home, took Nicholas into her car and nursed him in the confines of the freezing vehicle.
“It was a nightmare,” she says. Lask found the court’s stance “surprising.”
Soon though, when their divorce was finalized, she was granted full custody of her kids, and her ex-husband was granted visitation rights. During his extended time with Meg and Nicholas, Lask continued nursing her son in her car, weaning him entirely at 22 months of age.
Visitation and Overnight Stays
Most states have guidelines that recommend against overnight stays for children younger than 18 months, and some don’t support overnights until the age of 2. Regardless of how or what they’re being fed by that age, kids that young have a very hard time sleeping in an unfamiliar place.
In cases where mothers are granted full custody, dads can’t be kept from their babies and young children just because their ex-wife is nursing. “We are not opposed to visitation; we want the father to be involved,” says Lofton.
Besides, a breastfed baby kept for extended periods away from his mother often is an unhappy baby, she says. If the mother is pumping, there’s always the risk the baby won’t take the bottle. And many kinds of formula frequently don’t agree with babies’ immature digestive systems. And a father left to his own devices with an inconsolable baby isn’t a happy father.
The La Leche League and many states’ courts advocate for gradual visitation arrangements. These “short, frequent visits” for perhaps four to six hours at a time are best for a young baby, his mother and his father, Lofton says.
As nursing sessions become fewer and farther between and as babies age into older toddlers, visitation times can increase.
In the end, an individual judge may consider state and county guidelines very “discretionary,” says Sharon Williams, a partner with Sorensen-Jolink, Trubo, Williams, McIlhenny & Williams, LLP in Portland, Ore.
“I think that judges deal with that on a case-by-case basis,” she says of cases involving nursing and divorce issues.
Some judges are receptive to the desires of a nursing mother. Others, upon hearing testimony, may believe the mother is using the nursing relationship to keep her ex-husband away from her child. And still others may consider issues of bonding first, breastfeeding second.
“[Most judges like] to do whatever they can to set up a schedule so that the child can bond with both parents,” Williams says.
Pam Haan, a staff attorney at Legal Aid Services of Oregon also in Portland, says judges are more likely to push weaning for the dad’s sake.
Parents of a nursing child caught in the middle of a divorce face huge challenges. Ultimately, though, it seems the child’s interests should be at the forefront.
Before her untimely death, Baldwin eloquently put into words the importance of preserving the nursing relationship. “When a child is lucky enough to be breastfed, the courts should take steps to protect that relationship and encourage it,” she wrote. “Dependency needs do not last forever … It is important that the child’s needs will be protected by everyone involved.”