Breastfeeding and Custody

Feb 10, 2023


A recent article making the rounds has highlighted an issue that has simmered in the family law world for decades: How should breastfeeding impact child custody arrangements?

The answers are not simple legally. As the article points out, North Carolina courts and many if not most others have moved away from the “tender years doctrine”. That doctrine essentially meant that children needed to be with their mother more than their father in their early stages of development. North Carolina courts, at least in the larger and more metropolitan districts, have moved towards the idea that children need significant, if not substantially equal, time with both parents at all ages.

But, that leads to the breastfeeding conundrum because a child’s innate feeding schedule does not care about custody orders. A young child needs to eat when it needs to eat (I have teenagers now and they would say the same about themselves and do on a regular basis). I have experienced the overly hungry infant and it is not the most blissful of parenting experiences. Everyone loses when the baby is not fed on time.

The article walks through the major points that we have to consider in making parenting plans and custody orders for families who are breastfeeding. There are no perfect answers. Some of the more popular solutions are pumping breastmilk and making sure it goes with the child and supplementing it with formula. But those may not be a good fit for every family. And, figuring out the degree to which, and how, they best work in any particular family is not something most courts have the time to do.

In North Carolina, how the breastfeeding issue plays out in a case is almost entirely dependent on a judge’s decision. That judge may or may not have kids, may or may not have breastfed their kids, may or may not understand the emotional importance of the decision to both parents and the development of the child, and may or may not understand or agree with that family’s belief systems. As the article points out, there are arguments to be made for many possible solutions. It is impossible to know in advance what solutions a judge will choose in your case, and even which judge will hear your case.

For all of these reasons, many families with infants choose to not let the government, in the form of a judge, decide how breastfeeding will play into their co-parenting plan. As one mother who went through this issue in Maryland’s courts advised in the article “I would say…keep the court out. Try to come to a mutual agreement for the sake of the child.”

Fortunately, North Carolina law allows parents to make these decisions themselves and keep the issue out of court. For issues as emotional and central as breastfeeding, managing the conversations around the issue to keep them informative and productive is paramount. The best way that I know to do that is in the Collaborative Law Process.

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