Breastfeeding, Custody, Divorce and Fathers

Breastfeeding, Custody, Divorce and Fathers

Breastfeeding, Custody, Divorce and Fathers’ Rights, extended breastfeeding, custody when mom is breastfeeding, attachment parenting

This is NOT a Who Should Get Custody Post

I want to preface this post by saying that this is not a “Who Should Get Custody When Mom is Breastfeeding Post”.  Like all legal questions, there are many answers, so IT DEPENDS ON YOUR FACTS.

I’m a Proponent of Extended Breastfeeding

I also want to disclose that I have two children, and I breastfed both of them.  The first for 12 months, the second I breastfed for 38 months. That’s right, she was 3 years and 2 months when she self-weaned.  I am clearly a proponent of extended breastfeeding.

I’m Also a Proponent of Father’s Rights

That being said, I am also a proponent of father’s rights!  Especially those loving fathers who sacrifice the early years.  If the father encourages breastfeeding, I believe the mother has equal duty to encourage bonding in the toddler/preschool years, encourage a step-up parenting plan, and eventually working up to a close to 50-50 schedule.

Thus, I believe the early years should not set a “status quo” for Montenegro purposes – we should encourage breastfeeding (which necessitates mothers having a majority of time in the early years), but allow a step-up so fathers can work up to an equal time by school-age.

Breastfeeding is a Double-Edged Sword

Breastfeeding is used as a double-edged sword in family court.

As often as I have seen mothers hurling breastfeeding to deprive fathers of visitation, I have seen fathers mal-portray extended breastfeeding as “abnormal needy behaviors” that need to be quashed in order to deprive mothers.

Custody is Not Win or Lose

Know that unless there are issues of domestic violence or move-aways, California is a pro-joint custody state.   It is presumed that the “best interests of a child” is “frequent and continuing contact with both parents.”

Legislature, judges, evaluators, therapists and common sense all dictate: You are the one who is divorcing the other side; NOT your child.  If you have a child with someone, you and that person are this child’s parents for life.  Shaming, criticizing, and accusing the other side of bad behavior will NOT win you a leg up in your custody case.  In fact, Judges are more likely to believe the side who shows courteous behavior, the side who appears to be more encouraging of joint custody.

If You Have a Baby, Separation Will Impact the Baby

Did you know that previously in China, couples are NOT allowed to divorce if they have a baby – until the baby is 1 years old?

If you have a baby, you both need to WORK TOGETHER so the baby is not impacted.  I don’t care who has to swallow the harder pill.  If the mother is breastfeeding, my personal belief is that the baby stays with mother until such time that solids are introduced.  Some people argue that pumping is the same thing. It is not the same.  Exclusively pumping WILL affect milk supply.  Skin-to-skin contact has been proven to promote lactation.

However, just because I believe baby belongs with mother while breastfeeding does not mean FOREVER.  As much as possible, you give the father a chance to be a father.  The father-child bonding period comes later (preschool years), but is JUST as important as the mother-child bonding in the early years.  Depriving a child of either will harm them.

Understand the Mechanics of Breastfeeding

For those who don’t breastfeed, it is important to understand the mechanics.  Unlike breathing or eating, breastfeeding is rarely instinctive.  Breastfeeding is hard work and the new mother needs support.  The first couple of days after birth (sometimes up to a week), the body only produces colostrum, a gold gel-like substance. Though it appears scarce, the baby’s needs are entirely met by this gel until the milk comes in. The body has its own regulating mechanism – it will produce as much as the baby needs. So in the beginning, for milk production and sufficient nourishment, it is essential for babies to be breastfed at least every 2 hours, or on demand (per attachment parenting). Babies that are breastfed on demand will never overeat (common problem with formula babies). And, if fed on demand, they should never be hungry.

What About Pumping?

Some may suggest pumping milk to provide for the father.  If this is possible, then it’s a good solution. However, a lot of women cannot produce milk with the pump, because it is the baby’s skin-on-skin that draws out the milk. Also, some babies will refuse to take milk from a bottle. Some women report that pumping decreased their production, leading to babies’ early weaning.

If the breastfeeding relationship is to be protected, it is important that mother and child not be separated for lengthy periods (2-4 hours). Some babies will refuse bottle to wait for mommy’s milk, so they will go hungry until breastfed.

Breastfeeding Should be Priority in Early Months

Breastmilk (both for physical health and emotional bonding) should be a priority in the early months. Even into toddler years, studies have shown that breastmilk contains more concentrated quantities of antibodies, and will continue to protect the child. Once the child has started solids, they can go for longer periods without the breastmilk, however, for bonding purposes, lengthy times away from mom should develop over time, and after adequate bonding with another childcare provider (father, babysitter, daycare, etc.).

How Can A Father Get Custody When Mom is Breastfeeding?

Breastfeeding, Custody, Divorce and Fathers’ Rights

For a father seeking custody in the early months, all is not lost.

After educating yourself as to the mechanics of breastfeeding and attachment parenting, set reasonable expectations.  Just because the mom is breastfeeding, doesn’t mean you get zero custody.

Perhaps you start out with small periods of time, increasing as time goes along.  A step-up parenting plan goes a long way.

Learn About Babies

Some fathers are so focused on achieving 50/50 right away that they refuse to learn.  Don’t be this way!

Learn all there is to learn about babies.  For example, they sleep a lot. During the early months, they sleep 16-18 hours a day. During this time, it is not reasonable to request 50-50 custody.   In fact, it’s ridiculous!  The babies are sleeping.

I encourage my clients who are fathers to keep in close communications with the mother (as much as practicable).  Fathers must be extra supportive during the post-partum period (months 0 -6), especially towards new mothers. The mother’s body is still recovering and the baby’s well-being is directly related to the mother.

If you are the father, be supportive and reasonable.

Abraham Lincoln once said, “I destroy my enemy when I make him my friend.”

Love and support the mother of your child.  She has just given birth and her body has not yet recovered.  Through the mother, you can learn the baby’s sleeping/waking habits. If you are nearby, you can visit the baby during the waking hours. For amicable couples, this is possible.  However, most custody cases are high-conflict and contentious.  Sometimes the father fears the mother will move out of state.

If You Fear a Move-Away

Most new mothers will not be moving. The first few months are exhausting.  However, if you fear a move-away, the best thing to do is to make sure that you file a case so the automatic temporary restraining orders will kick in.  Next, you must gingerly serve the papers.  Rather than instilling fear, I recommend alerting the mom that a case has been started with a nice letter stating you are seeking custodial time, but in increasing increments, and to the needs of the child.

If the mother is refusing any sort of visitation, I advise setting the case for mediation before filing any Request for Order for Custody.   This is required by the courts, and if you exhibit reasonableness, your arguments will fare better in Court.  If you do make requests, ask the Judge to make step-up orders.  That way, your generosity towards mother during the early months cannot be used against you forever.

I strenuously advise against any sort of custody litigation during the first year of the baby’s life. Even more so if the baby is breastfeeding.

If the mom is still breastfeeding after age 1 – or 18 months, and still refusing overnight visits, this would be an appropriate time to inquire into getting more through legal action, if the below tips are unsuccessful.

Suggested Parenting Plans When Mom is Breastfeeding

There are numerous resources out there which can help you craft a parenting plan during the nursing months.  I highly recommend you download the American Bar Association Publication: Your Parenting Plan. 

The Los Angeles Superior also put out a manual “Parenting Under Age 3“.  They suggest the following for fathers:

BIRTH THROUGH AGE 6 MONTHS: Three non-consecutive days per week for two hours each day.

Many infants take multiple naps and require feeding every three or four hours during the day. If at all possible, time with the nonresidential parent should aim at not disrupting the infant’s nap and feeding pattern.

AGE 7 MONTHS THROUGH 12 MONTHS: Three non-consecutive days per week for three hours each day. Overnight, if appropriate.

If a parent has not been involved in care-giving previously, these short and frequent visits will help to develop a mutually secure relationship and allow the parent to master the tasks and sensitivity required to care for an infant. As the care-giving skills are mastered, the parent-child bond strengthens and the time with the infant may increase.


Three non-consecutive days each week for three-four hours each day.  One weekend day for up to eight hours.
Overnight, if appropriate.

How to Craft a Parenting Plan When Mom is Breastfeeding

A reasonable plan should look at some of these factors:

What is the father’s relationship with the child?

If the baby was born after the parties separated, then this will require a longer step-up increased custodial time than if the couple separated when the baby was 1.  If the father lived close to the mother, and was able to visit every day for a few hours, this would allow for more rapid increased schedule as the child grows.

Studies have shown that overnights for children under age 2 with a parent they have not bonded with, can be stressful. Also, it is essential that overnights are worked up to – that is, the father has spent frequent and continuing times throughout the weeks with the child, gradually increasing time as the bond grows.

What is the mother’s relationship with the child?

A stay-at-home mom who is breastfeeding on demand and co-sleeping will have a different relationship that the working mom who returned to her 9-5 job after 12 weeks of maternity leave.  In the latter, she may still be breastfeeding when she returns home.  However, if she is pumping milk to give to her nanny during the day, then she can certainly do the same with the father during the day.

Does the mom co-sleep or does baby sleep in a crib in his own room? In the former, overnights would probably not be feasible until at least age 2.

How long has the child been away from mom? Has grandma watched her for a weekend while she was on a girls’ trip? Or does mother Ergo the baby all day, for naps and to run errands?

What are the parties’ desired parenting plans in the future? Is it mom’s desire to keep dad out of baby’s life until age 10? Is it dad’s desire to have 50-50 the day after baby turns 3?

Children benefit best from two loving parents. Child-rearing was never meant to be a single person’s job; it takes a village.

Often, the mom’s distrust and gatekeeping causes the father’s irresponsibility and eventual “giving up” on the system, causing the child to lose the support and love from one parent.  This harms the children.  More love, not less, is in their “best interests”.

Sometimes the moms are the perpetrators – immediately getting into a relationship with a new man; moving as far away as possible to “alienate” the father. This also harms the children. Knowing their legacy, and who their father is, is in their “best interests”.

Ideal World

In the ideal world, family court litigants foster nothing but love and understanding for their babies, and the other parent.  Moms who want to breastfeed are not blamed for a child’s development issues, and not mocked for co-sleeping with older kids. Dads who want to be involved can see the children and spend nights at the moms house until the child is comfortable at his house.

I have a dream that one day, the parents of beautiful babies – though separated, can be in the same room so babies can bond with both and still have a special attachment to their one primary caregiver.

Family law attorneys and Judges have a duty to educate themselves in this area, so no mother is forced to wean a child too early, so no child is forcibly “detached” from their primary caregiver, so no father is deprived of bonding in favor of breastfeeding.

Reality is far from my dream.

I end with unaltered excerpts of transcript from a custody hearing on a high-conflict custody case I had a few years ago, where I represented the mother of 2 young boys, ages 6 and 2. The father had been on an extended absence of over a year, and when he returned, he demanded the same schedule he had prior to his departure. Mother works full-time but was still breastfeeding and co-sleeping with Younger. (Names have been changed)

Custody evaluator: The children are experiencing difficulties in the current schedule.

Opposing counsel: What difficulties are they experiencing?

Custody evaluator: As noted, Younger has regressed a great deal in the concrete skills that he’s had. In terms of Elder, I saw a child who was very anxious. They are not doing well in their current schedule.

Opposing counsel: Did you know the Mother is still breastfeeding Younger at age two and a half?

Custody evaluator: Yes.

Opposing counsel: Do you think that has anything to do with his regression?

Custody evaluator: No.

Opposing counsel: Were you aware the mother is using the fact that she is breastfeeding to prevent visitations?

I objected. Assumes facts not in evidence. Judge sustained it. We moved on.

In the end, we won. My client was granted the custody/visitation schedule we requested.

But I still mourn for my client who was assassinated by uninformed opposing counsel.

Breastfeeding a Child at Any Age is Not Harmful

As heralded anthropologist Katherine Dettwyler, PhD states in her letter to courts in support of extended breastfeeding: “In conclusion, there is no research to support a claim that breastfeeding a child at any age is in any way harmful to a child . On the contrary, my research suggests that the best outcomes, in terms of health, cognitive, and emotional development, are the result of children being allowed to breastfeed as long as they need/want to. Around the world, most children self-wean between the ages of 3 and 5 years, but given that the underlying physiological norm is to breastfeed up to 6-7 years, it is quite normal for children to continue to breastfeed to this age as well, and the occasional “normally” developing child will nurse even longer.”

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