Custody and Breastfeeding

When parents separate, a decision has to be made about access and custody of the children. If the child is still breastfeeding with a strong attachment to his mother, she may be very worried how her baby will handle any lengthy separation from her. If the parents are not on speaking terms, or if the father hasn’t witnessed this special bond, he may think breastfeeding is being used as a ploy to keep him away from his baby. This is rarely the case. But, however difficult, it is better for the parents to come to an arrangement of access themselves that takes the best interests of their child into account, without involving the courts. The best interests for the child include both breastfeeding and a close relationship with the father.

Custody and breastfeeding

If the parents can’t agree on custody arrangements, the courts will have to be involved. And if the court feels breastfeeding is being used as an obstacle to a father’s access they may see weaning or pumping as the solution. A court probably won’t value breastfeeding above a father’s time with his child. However, forcing a child into long separations from his mother before he is ready is not as straightforward as it may sound—with or without breastfeeding. It can result in a very miserable baby or toddler instead of one who is emotionally secure. It is in both parents’ interests to have a happy child. With a little give and take, breastfeeding—and all its health benefits—need not be sacrificed prematurely.

Shared custody and breastfeeding is possible

Ideally parents will work out a visiting plan or formal parenting agreement that respects the child’s need to be with his mother and to continue breastfeeding while still seeing his father. Dr Jack Newman, a Canadian paediatrician explains:

A child needs his father, even at 6 months, 19 months or three years of age and I am not in any way suggesting that the father not have appropriate access, but forcing the child to stop breastfeeding (even if the demand is not explicitly stated) is not appropriate. However, surely some sort of arrangement can be made to allow the father reasonable access without interfering with the breastfeeding relationship. Even occasional overnight separation for a child who wakes during the night to breastfeed is not appropriate, in my opinion. It is, in my view, in the best interest of the child that both parents support or facilitate the continued breastfeeding relationship.


Not just about the breast

Breastfeeding is very closely bound with attachment and mothering. It is a way of settling a baby to sleep (often repeatedly during a single day or night), calming them down, pain relief for teething or colic, meeting suckling needs, it is their lovey, their security blanket and their food. However, focusing just on a child’s reliance on breastfeeding is not taking into account the bigger picture of healthy attachment 12. It is very desirable for a baby to have a primary attachment figure as this affects a child’s emotional health throughout their life:

Forming a close bond with one consistent and loving caretaker is an essential need in childhood. Many child development specialists believe that children who are not given the opportunity to form such a bond, or who experience disruption in the bonding process, will have serious attachment problems throughout their lives.

Separation is traumatic

Separation from their primary care giver (usually the mother) is traumatic for a young baby or toddler, particularly in the first four years. They are unable to process where their mother has gone and even though they may seem “happy” when separated they are still suffering trauma. Psychiatrist Peter Cook writes:

It may be thought that the child has “settled”, and he or she may appear happy. He may be friendly to almost anyone, except to his mother if she re-appears. Children in this state will often turn away from their mothers or appear not to recognize them. It seems that they cannot bear to have the feelings of hurt and longing brought up again. These reactions are more likely when the child is away from home and in a strange environment. They may be less, or absent, if the child has good substitute mothering, preferably from a known member of his or her own family, throughout the period of separation.

Effects of trauma

When children have been prevented from developing a secure attachment this is felt as early life stress or trauma. This could lead to developing a stutter,  learning problems 3 or developing trauma induced epigenetic changes affecting the child’s mental health 4:

Research has shown that children who do not develop secure attachments with a primary caregiver during the first years of life later are unable to calm themselves down; they are more likely than are secure children to overreact to stimuli. Insecure children have less impulse control, less ability to tolerate stress, and less ability to tolerate frustration than do individuals who have experienced a more secure childhood (Toth & Cicchetti, 1998). They also are more at risk for anxiety, depression, aggression, violence, suicide, and substance abuse.

The father’s bond with the child is very important

The following article discusses the importance of the father’s bond and the importance of parents trying to resolve arguments about access for the sake of their child:

The father’s bond with the child is just as important as the mother’s. However, it should rarely, if ever, be necessary to interfere with the child’s attachment to the mother in order for the father’s relationship to be promoted and encouraged. In the ideal relationship, the bond with the father and siblings flows out of the strong bond with the mother. But in any case, the child should not be torn from one parent, or forced to choose. The child should feel that both parents will protect and encourage the other parent’s relationship with the child, and both will help the child to feel safe.

No father wants to come for his child and have him clutching his mother’s legs screaming not to make him go! Both mother and father will benefit if their child gleefully leaps into his arms, so excited to see him and go off with him!

Mediation for parental conflict

The anger between parents can negatively affect children as well as the divorce or separation itself. If parents are unable to put their child’s needs first without arguments, mediation may be helpful. In mediation an independent third party helps both sides come to an agreement. For mediation help in the UK contact the Family Mediation Council.

Children are at a greater risk of developing emotional, social, cognitive and behavioural problems in families where there is a high level of conflict and animosity between parents

Work up to longer separations gradually

If a child is securely attached to one parent, whether breastfed or not, separation from that parent can be built up gradually taking into account their developmental needs. Elizabeth Baldwin explains:

a six-month-old child who has been separated from the mother for two hours at a time on occasion but is otherwise glued to her could easily begin two-hour visits with Daddy several times a week or every day. But if the mother works and is apart from her baby eight hours a day five days a week, visitation could begin with eight-hour weekend visits, or with the father caring for the baby while the mother works. If a mother of a four month old leaves the child with a nanny on weekends, the baby could similarly begin weekend visitation with the father.

The difference between night and day

Days and nights are not the same to a small child. Most babies and toddlers will not be ready to be parted from their primary attachment figure over night for quite some time. Many breastfeeding children continue to wake at night for several years for the security of connecting with their mother for a night-time feed. This is quite normal baby/child behaviour. By understanding this, parents, lawyers and the legal system could put the needs of the child first and avoid causing unnecessary anxiety and distress by demanding something for which the child is not developmentally ready.

Infants, toddlers and preschoolers up to the age of 5 often show extreme distress, anger, and fear when sleep routines are abruptly changed and they are separated from their primary caregiver with little or no preparation. The child feels enraged at both parents. Anger is expressed at the one who has taken him or her to a new situation and to the other parent for allowing it to happen. A nighttime with screaming is an ordeal for all, and often results in emotional consequences for the child.

When will a child be ready for overnight separation from their main caregiver?

The Australian Association for Infant Mental Health Inc (AAIMHI) recognises that shared overnight parenting can be very disruptive for young children and offers guidelines on handling overnight care in Infants and Overnight Care–Post Separation and Divorce.  AAIMHI recommendations include:

  • Promote a safe, healthy attachment with the main caregiver while building a warm relationship wth the other parent.
  • Day time separation should be gradually increased at the child’s pace.
  • Attention should always be paid to a child’s emotional security and developmental readiness for separation.
  • Overnight separation from the primary care giver is not recommended under two years of age and most children won’t be developmentally ready until at least three years of age.

Developmental milestones

AAIMHI lists several developmental traits to guide a child’s readiness for overnight separation (see excerpt). It also stresses the importance of parents being able to avoid conflict, speak positively about each other and be cooperative for the sake of the child.

4.1 The young child should be able to:

a) at least in part, calm him/herself when stressed and/or upset, and to use the other parent or caregiver to become soothed;
  • b) imagine the main caregiver even when that person is not present;
c) understand what is being said to him/her;
  • d) anticipate events beyond the here and now, that is, to understand what ‘tomorrow’ means;
e) communicate about past and future events, and verbally express his/her basic needs and feelings;
f) receive an understanding response if a trial sleepover does not turn out to be as expected and future sleepovers to be postponed for a period of time.

(Note: two-year-olds do not generally have the ability to foresee how they will feel in a new situation that they think they will enjoy).

See the full document for guidance when child protection is a concern.

It won’t last forever

Children grow and adapt quickly, and the need to stay close to their primary attachment figure does not last forever. By respecting developmental needs and by the father returning the child to his mother when the little one needs it; father-child relationships will be built on trust and security.

A mother’s story

Here is a story of how one mother negotiated shorter more frequent visits between father and son as a starting point;

At first he said no and then my tongue moved faster then it ever had. I was quoting the pages I had highlighted. I really didn’t even know I had them memorized. And he got it. He understood that Keegan would only be little for a short time. That soon he wouldn’t be breastfeeding and needing mommy all day. He understood that he needed short frequent visits. He understood that breastfeeding until Keegan self-weaned and the attachment parenting I was doing was what was best for Keegan.

Breastfeeding a toddler or older child

It may be better not to raise breastfeeding as an obstacle to sharing custody past one or two years of age however biologically normal this is. Many experts are unsupportive and uneducated about breastfeeding past infancy and the courts won’t favour breastfeeding if it seems to interfere with a bond with the father such as preventing overnight stays. Focusing on breastfeeding is ignoring the bigger issue of separation and attachment. Securely attached children who are not used to being away from their mother would be upset by long separations whether or not they were breastfeeding.

Misinformation about breastfeeding affects everyone in our society, including lawyers, judges, psychologists, and social workers. While there is no harm in breastfeeding past infancy and allowing a child to wean naturally, many professionals in social service agencies and family law courts are quite shocked to learn just how long a child may breastfeed. Lacking accurate information, these officials may overreact and conclude that breastfeeding a child of two, three, or four is somehow improper.

Letter to the court template

If breastfeeding past the tiny baby stage is scrutinised in a custody battle, Katherine A Dettwyler has provided a template for a letter that defends natural term breastfeeding and co-sleeping for use in a court situation.

Legal information

Breastfeeding and Family Break Up in the UK (Association of Breastfeeding Mothers) lists places where families can find legal information relating to custody issues, discusses international law that may be relevant and shares examples of how courts in UK have applied the law.

Human rights and breastfeeding?

With regard to human rights legislation, Article 8 of the European Convention on Human Rights may be affected by a disproportionate contact order from the court. Article 8 is: “The right to respect for private and family life, home and correspondence” and includes the right to physical and moral integrity. The baby also has his own rights under Article 8. This could be discussed with your legal representative.

Peter Haiman believes the child needs their own legal representation and advocates in court: