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Child Custody and Divorce Lawyer in Los Angeles


BREASTFEEDING, YOUNG CHILDREN
AND CHILD CUSTODY

One of the most difficult situations for a family to deal with is how to create a parenting plan for very
young children. This becomes even more difficult when a mother uses breastfeeding as an argument to
deny visitation. Consider this example. The child is less than eighteen months old and the mother is
breastfeeding. She argues against overnight visitation to the father because it would disrupt her
breastfeeding schedule, bonding and cause separation anxiety. The father is convinced that she is only
doing this to deny overnight visitation.  The mother produces studies and data showing the health,
psychological and emotional benefits of breastfeeding. She may even have a declaration from a
pediatrician. She has even argued that breastfeeding is a “privacy right” guaranteed by the Constitution.

“Breast is” best argument

It is true that there are many health, psychological and emotional benefits of breastfeeding for both the
baby and the mother. Studies show that breastfeeding increases an infant’s immune response and
leads to fewer illness, improves growth and vision and accounts for an increase in cognitive capacity
and higher IQ.  It also increases bonding between infant and mother and improves the mother’s health
reducing the risk of breast cancer and diabetes.   The American Academy of Pediatricians in a revised
2005 policy statement states: “Exclusive breastfeeding is ideal nutrition and sufficient to support optimal
growth and development for approximately the first 6 months after birth. Infants weaned before 12
months of age should not receive cow's milk feedings but should receive iron-fortified infant formula.
Gradual introduction of iron-enriched solid foods in the second half of the first year should complement
the breast milk diet. It is recommended that breastfeeding continue for at least 12 months, and
thereafter for as long as mutually desired.”

Historical context

First, this “breast is best” argument should be viewed in a wider historical context. Public recognition of
the health benefits of breastfeeding is a relatively new phenomenon. According to U.S Census Bureau
data in the 1970’s only 10% of mother’s continued to breastfeed their children for 6 months and from
1990-1993 this figure had only risen to 28.4%.  It is highly likely that the lawyers and judges handling
your case were themselves formula fed with no long term harmful consequences.

Pumping

One solution, if the mother were willing, would be for her to pump and provide the father with enough
breast milk to get them through the night. If the mother pumps and the mother or nanny feeds the baby
with a bottle (for example at work), there is no reason why father shouldn’t be able to do the same. If
mother argues that she cannot pump enough or that pumping might affect milk supply or lead to “nipple
confusion.” the father may need to consult a pediatrician.

Is there a privacy right?

There are no cases guaranteeing privacy right in the Constitution, but it is unlikely that a Court would
order a mother to pump since an order would be difficult to enforce. You would probably have to use
formula.

The bigger picture: Best Interest of the children

The bigger question which is whether the “breast is best” argument trumps all others. In California in
deciding issues of child custody the courts are bound to make a decision which is in the “best interests”
of the children. This test requires a Judge to consider all the factors that affect best interests – not just
one such as breastfeeding. While breastfeeding is important, does it outweigh the benefits of father-
child bonding and, if so, for how long? There is a wealth of developmental literature that shows that it is
in the best interests of the child to have early father-child bonding and sooner or later that bonding
requires overnight custody. However, experts disagree when overnights should commence. Some
experts believe that the data shows that very young infants can form multiple attachments and therefore
overnights with many transitions to reduce time away from either parent can work in the infants best
interests (Kelly and Lamb, 2000 & 2001). Others emphasize the separation anxiety caused by time
away from a primary attachment figure and argue that overnights should only be introduced later
((Solomon and Biringen (2001), Wallerstein & Blakeslee (2003)). However, most experts emphasize that
much depends on the circumstances of each case, the quality of parenting from each parent and their
ability to communicate effectively. This is a very difficult area for the parents, their lawyers and the
Judges. What’s best for each child will depend on the facts of each family. For example, in a high
income family, the “stable nanny” may be the primary attachment figure and a parenting plan should
take that factor into account. In these difficult situations our office usually encourages the family to
cooperatively work with a family therapist specializing in child development to mediate an appropriate
parenting plan.

Model Parenting Plans for Young Children

The Los Angeles Superior Court Parenting Plan Guide gives the following examples of age appropriate
plans. It should be noted that these are examples and not recommendations. What will be appropriate
and in the best interests of the children will vary with each family.

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.

AGE 13 MONTHS THROUGH AGE 18 MONTHS:
•        Three non-consecutive days each week for three-four hours each day.
•        One weekend day for up to eight hours.
•        Overnight, if appropriate.

Children at this age still require a predictable and consistent daily routine. Communication
between the parents about the infant's routine and any new developments is essential to
enhance the infant's adjustment.

Footnotes
1.For an excellent discussion of baby development see “How the Brain and Mind Develop in the First Five Years of Life” written by Lisa
Eliot, Ph.D (Bantam Books, 2000).
2.Studies show that “nipple confusion” – difficulty switching from one form or feeding to another is most prominent when an infant is about
3 months old.
3.See Shana M. Christtrup, “Breastfeeding in the American Workplace” Journal of Gender, Social Policy and the Law [Vol 9:3] at “http:
//www.wcl.american.edu/journal/genderlaw/09/9-3christrup.pdf?rd=1”
4.For a summary of the studies see “Creating Effective Parenting Plans” by Dr. John Hartston and Dr. Brenda Payne (ABA publication).


© 2009 Warren R. Shiell.  Warren R Shiell is a
Los Angeles Divorce and Family Law attorney. All rights reserved. The information
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© 2009 Warren R. Shiell. All rights reserved. Los Angeles Divorce and Family Law Attorney. The information contained in
this website is an "Advertisement." It is for informational purposes only and shall not constitute legal advice. Nothing in this  
Website shall be deemed to create an Attorney-Client relationship. An Attorney-Client relationship shall only be created when
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