(27 Sept 2023: Content and links updated)
It is difficult — even scary — when a family is struggling with a challenging custody and visitation arrangement while the baby is still breastfeeding.
It is critically important that the lactating parent have an excellent family law lawyer to represent their interests. It is important they try to do whatever it takes to get a real lawyer to work on their behalf. If Baby is lucky the court may appoint a lawyer protecting the baby’s rights (called a child advocate, or guardian ad litem), but to be honest, that rarely happens. Even when there are very serious allegations afoot (abuse; neglect) that is not a guarantee that the child will get a lawyer (who will be a different lawyer from the one for each of the parents).
If the parent has not yet hired a lawyer, suggest they start with the referral line for the bar association for the city or county where the family lives. If relevant, ask about any programs to help clients with little or no money, and a child’s interests to protect (Examples: Allegheny County Bar Association, https://www.getapittsburghlawyer.com/ [and] Philadelphia Bar Association, https://philadelphiabar.org/?pg=LawyerReferralHome).
In rare cases, an “expert witness” in breastfeeding and human lactation (an International Board Certified Lactation Consultant, an IBCLC) may be used in the case. It is advisable that someone from close by be called. Family law courts are notoriously parochial, and bringing in an expert from across the state or country can easily backfire. This is a strategic call the lawyer will make, considering the judge, the client (e.g. the lactating parent), and the facts of the case.
If an expert witness is to be used, all of the communications, preparation and payments are arranged by the lawyer in the case, NOT the parent.
While any IBCLC will have the clinical skill and training to meet the requirements to be an expert witness, not all IBCLCs are willing to serve as an expert witness. The parent in the dispute can do the first level of research to find someone who might be willing to be an expert witness, or to write a letter in support of the situation. But then the name and contact information should be handed off to the lawyer, who will initiate the formal engagement. IBCLCs in Pennsylvania can be found at:
- Pennsylvania Resource Organization for Lactation Consultants (eastern PA), https://search.pro-lc.org/
- Pennsylvania Dept. of Health Breastfeeding Resources Guide, https://www.health.pa.gov/topics/programs/Breastfeeding/Pages/Breastfeeding.aspx
- International Lactation Consultant Association “Find a Lactation Consultant” Directory, http://www.ilca.org/why-ibclc/falc
- United States Lactation Consultant Association “Find a Lactation Consultant” map, https://uslca.org/resources/find-a-lactation-consultant-map/#!directory/map
However, an IBCLC expert witness is rarely truly needed. More helpful is an expert on attachment parenting, who is familiar with child development and needs, about which breastfeeding is just a small part. Baby’s pediatrician is often the most persuasive person to write a letter in support of the situation, if a letter is used. The doctor has known the baby all their life, and the court is supposed to be thinking about “the needs of the child.” One has to weigh whether the pediatrician’s support for breastfeeding will be helpful to the case the lawyer is trying to make on behalf of the lactating parent.
When breastfeeding becomes the focus of the case, it quickly becomes demonized, and that NEVER helps. Family law courts are customarily non-breastfeeding-friendly. However, the parents have two future decades of co-parenting to be figured out, and breastfeeding will be over sooner than the breastfeeding parent — in very understandable “breastfeeding mama bear mode” — can appreciate now. It is critically important that all aspects of child care, custody, and visitation — not just the breastfeeding part — be worked out NOW. It sets the tone for years to come.
Here are some helpful resources about breastfeeding in family law cases:
(1) There are excellent resources on the La Leche League Breastfeeding and Visitation or Custody page: https://lllusa.org/visitation/#:~:text=Breastfeeding%2Fchestfeeding%20can%20be%20protected,when%20both%20are%20so%20important.
(2) It is a hard read, but this blog from the Leaky Boob (still viewable on the Web Archive) may resonate with the breastfeeding parent:
https://web.archive.org/web/20170227164742/http://theleakyboob.com/2011/02/a-journey-through-breastfeeding-and-visitation/
(3) Kathryn Dettwyler PhD has a generic letter about long-term breastfeeding that anyone can use:
http://kathydettwyler.weebly.com/2015-court-letter.html
(4) The Breastfeeding Coalition of Oregon has a great co-parenting 2-page handout about custody and breastfeeding, now on Web Archive but still pertinent.
https://web.archive.org/web/20161121102359/http://www.breastfeedingor.org/wp-content/uploads/2012/10/BCOCoParentingPlan.pdf
(5) BreastfeedLA, the California-based coalition, has an excellent Custody Toolkit in both English and Spanish (https://www.breastfeedla.org/custody-toolkit-eng-sp/). It may be downloaded; there is within it a great page about lactation in divorce cases … but be sure to scroll down and explore the bibliography for citations to materials especially helpful in lawsuits involving breastfeeding and attachment issues.
(6) Be sure lawyers see this law review article from Willemsen and Marcel, about the importance of NOT interrupting the secure attachment relationships young children form (whether or not that involves lactation). Breastfeeding is not the only way to form an attachment relationship. But when it is part of the recipe for providing consistent safety and security to a child, it should not be disrupted to arbitrarily meet milestones. “Best interests of the child” means we look at this child’s interests, not age. Willemsen, E., & Marcel, K. (1996). Attachment 101 for attorneys: implications for infant placement decisions. Santa Clara Law Review, 32(2), 439-475. http://digitalcommons.law.scu.edu/lawreview/vol36/iss2/11
(7) This toolkit from the Michigan Breastfeeding Network, about breastfeeding and child custody, is a real gem: https://drive.google.com/file/d/1hs_DVx3dGxZQEzTSXnZ83SJfVVw_VEW7/view?pli=1
(8) These Attachment Parenting articles discuss custody and divorce:
- Divorce, custody, and blended families: https://www.attachmentparenting.org/custody
- Open letter to a court about overnights: https://www.attachmentparenting.org/support/articles/court
(9) This mass media article describes research (linked here ,https://www.ncbi.nlm.nih.gov/pmc/articles/PMC4307616/) that suggests overnight visitation disrupts the baby’s ability to attach to the primary caregiver. The researcher advocates for “parenting plans that evolve, where day contact with fathers occurs frequently and regularly, and overnights away from the primary caregiver are minimized in the early years, then are gradually increased to perhaps become equal in the preschool years. ‘If mothers and fathers can be patient, cooperate and take a long view of child development, such evolving plans can work for both children and parents.’” https://www.newswise.com/articles/overnights-away-from-home-affect-children-s-attachments-u-va-study-shows
Author: Liz Brooks JD IBCLC FILCA
original: 25 Dec 2017
revised 17 Feb 2018
revised 19 August 2018
revised/links updated 27 Sept 2023
Oh, that is an interesting take. My comments were meant to describe the situation where the **court** system appoints a lawyer to protect the child’s rights. Customarily, the law assumes a parent will act in the best interests of the minor child, and will make decisions that will protect and safeguard the child. But if there are allegations of abuse or neglect, I think it is safe to say such a parent has already demonstrated that they (at least allegedly ….) are NOT putting the child’s interests first, which is why the state is deemed to have authority to step in, and appoint a guardian at litem or child advocate to protect the minor’s interests.
I honestly do not know of a situation where parents have voluntarily decided (together, or alone) to hire an attorney to represent their child(ren) in visitation, divorce, or custody cases. I think it raises at least an inference of conflict of interest … if the Child Attorney is paid by Parent A to legally advocate for the child, I suppose the lawyer for Parent B could raise the implication that Child Attorney will feel beholden to the person with the checkbook, and will be partial in representation in a way that favors Parent A. But what if both Parents agree on a third person to be the lawyer for their kid? I’m going to have to investigate this notion further ….