Recently, a Pennsylvania judge sparked nationwide outrage when he reportedly ordered a mother to stop breastfeeding her baby daughter so that the father could have overnight visits with her.
The mother, Jessica Moser, reported to the local news outlet that the judge presiding over her custody case ruled that she must stop breastfeeding her 10-month-old daughter, Jasmine, or risk losing custody of the child entirely.
Moser exclusively breastfeeds her baby and states that, as is common with breastfed babies, she refuses to take bottles from anyone. This would, of course, pose a significant problem if mother and child are separated overnight.
Moser went on to state that she is “very passionate” about her right to breastfeed and believes “breast is best” at her daughter’s age.
And Moser appears correct; or at least well-supported by science.
There are numerous benefits to breastfeeding, including immunological benefits for the baby, physiological benefits for the mother, not to mention the emotional benefits for mother and child alike.
The American Academy of Pediatrics recommends “exclusive breastfeeding for about 6 months, followed by continued breastfeeding as complementary foods are introduced, with continuation of breastfeeding for 1 year or longer as mutually desired by mother and infant.”
Given the indisputable benefits of breastfeeding, and of course, a possible lack of alternative, and comparable food sources for babies, should courts factor breastfeeding in deciding custody? Perhaps.
In New Jersey, Courts making custody awards must consider, above all else, the best interests of the child involved. This means that a child’s physical and emotional welfare is the overarching consideration in making or evaluating custody arrangements.
Of course, those statements beg the question – if “breast is best” for a baby, how could a prolonged separation from those benefits be in the “best interests” of a baby who relies on her mother for her very sustenance?
Some courts have recognized this dichotomy and established structures to aid in facilitating the breastfeeding relationship. For example, in Maine, a judge must consider whether the mother of a child under one year old is breastfeeding when he or she determines custody. In Michigan, one of the factors a judge must consider when determining allocation of parenting time is whether the child is under six months old and breastfeeding or under one year old and receives a substantial portion of his or her nutrition through breastfeeding. In Utah, a judge may consider that a nursing child’s lack of reasonable alternatives when determining whether the default custody schedule should be applied in a particular case.
Similarly, Los Angeles County Superior Court has issued tips for creating a parenting plan that do not recommend overnights for non-custodial parents for babies up to 6 months. Instead they recommend three non-consecutive days per week for up to two hours each day. For infants, 7 to 18 months of age overnights are only recommended if appropriate.
While New Jersey does not specifically address a mother/child breastfeeding relationship, that certainly does not preclude a court from making a decision in that regard in the context of the “best interests” of the child.
For example, a court could craft an order allowing the mother to have the child overnight due to nighttime breastfeeding (another common occurrence for breastfed babies). Perhaps the father could have extra time with the baby during waking hours. Of course, to the extent a custody schedule is always modifiable, the father could go back to the court to seek an expansion of his parenting time when the child is no longer breastfed.
It will be interesting if this media attention prompts more legislatures to craft laws that would specifically address accommodations for breastfeeding mothers and children. After all, laws exist to protect breastfeeding mothers at work and in the public domain. However, these are all laws designed to protect mothers from being unduly hassled and seemingly, only secondarily to protect the baby’s ability to continue breastfeeding uninterrupted.
With almost 30% of mothers now breastfeeding within the first 6 months, it seems that we may be overdue for laws that address the breastfeeding relationship from the viewpoint of the child – the physical, emotional and bonding aspect included. After all, isn’t the “best interests” of the child standard is meant to do just that?
Eliana T. Baer is a frequent contributor to the New Jersey Family Legal Blog and a member of the Family Law Practice Group of Fox Rothschild LLP. Eliana practices in Fox Rothschild’s Princeton, New Jersey office and focuses her state-wide practice on representing clients on issues relating to divorce, equitable distribution, support, custody, adoption, domestic violence, premarital agreements and Appellate Practice. You can reach Eliana at (609) 895-3344, or firstname.lastname@example.org.