I was recently reading the latest issue of People Magazine and I came upon an article about HGTV reality show personality Nicole Curtis from Rehab Addict telling her story about her custody battle with her ex-husband regarding her 30-month-old son and her desire to limit his time so she can continue to nurse their child. Ms. Curtis attempted to prevent the father from having overnight custody. Ms. Curtis stated, “Every single day I have to weather criticism about how my child is too old to breastfeed. But when he weens, it’s going to be his decision. I truly believe it’s a child’s choice.” However, a judge in Detroit didn’t agree. When the child was six months old he awarded the father joint custody, which included overnights. Ms. Curtis was able to show the court (with the help of a lactation consultant) that she was not able to pump enough breastmilk, which was putting her milk supply at risk, and thereafter, she was awarded access to the child during his father’s visits for the purpose of breastfeeding.
There is very little case law in Pennsylvania on the issue of breastfeeding and its impact on a custody schedule. In 2011, the Pennsylvania Superior Court, in J.R.M, vs. J.E.A., 33 A.3d 647 (Pa. Super. 2011), reversed a trial court order which provided for the father to have partial custody of his infant son (1) three days a week for three hours at a time at a church (or other location where the parties agreed) until the child was eight months old or no longer breast feeding; (2) once the child turned eight months or was no longer breastfeeding, father’s time expanded by one hour each day for three more hours; and (3) provided that the long term goal when the child was “the appropriate age” (whatever that means) was for the child to visit father in his home and overnight. The Superior Court found that the trial court improperly based its decision almost exclusively on the fact that the child was breastfeeding and the parties had difficulty communicating with each other. Under current Pennsylvania case law there are a number of’ factors which a Court must consider, none of which the trial court did in making its award. It made no mention of which party would be more likely to encourage contact with the noncustodial parent, the parental duties performed by each parent, which party could provide greater stability and continuity for the child, the presence of extended family, attempts by either party to turn the child against the other parent, the parent that is more likely to provide a relationship consistent with the child’s emotional needs, which parent is more likely to attend to the child’s daily physical, developmental, educational, and emotional needs, and any drug or alcohol abuse by either parent and his/her household members, or the mental and physical condition of each parent and members of his/her household. The case was remanded to the trial court for a consideration of the custody factors and further findings of fact.
In 1996, the Bucks County trial court was affirmed on appeal in Stephon v. Malmad, 30 Pa. D.&C. 4th 510 (C.C.P. Bucks 1996), affirmed, 455 Pa. Super. 665 (1996), where the trial court awarded father alternating weekends as part of his partial custody schedule. Prior to the court order the mother was allowing the father to see the child in her home for three hours on Sundays and 90 minutes on Tuesdays. The child was 4 1/2 months old at the time of the hearing and the mother was breastfeeding the child. [The mother had breastfed her older child until she was three years old]. The court noted that neither party was able to provide the court with any case law or authority that justified limitations of reasonable unsupervised contact between father and his infant child so that a mother could maintain unlimited breast feeding at such times and for such duration as she, in her sole and exclusive opinion, thought warranted. Rather, mother introduced voluminous material extolling the benefits of breast feeding, all of which was acknowledged to be true by father and the court. The court found that there was no evidence of any risk of harm to the child from modestly limited access by mother for breast feeding. The court went on to state that there was no evidence in the record that the best interests of the child would be served by allowing mother unlimited control of visitation to indulge in her belief in the need for breastfeeding up to the child’s age of 2. The court went on to state, “We believe that for [father] to have accepted such a schedule of visitation as [mother] was offering would have subjugated him to her unlimited control, since such a schedule was in accordance with her schedule, at her residence or her office, and would have allowed no adjustment or compromise.” The court also noted the importance of a child having contact with both parents and if there is to be any restrictions on one parent’s time, it must be the least intrusive restriction for the identified purpose. The court went on to note that nothing in its order prevented mother from breastfeeding the child 295 hours out of 336 hours in a two-week period where she had custody.
Each custody case turns on its own individual facts and what is in the best interest of the child in light of the custody factors. If your child is breastfeeding, you should consult with a family law practitioner to discuss how this will impact the custody arrangement in your matter.
By Dori Green