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Does Breastfeeding Affect Custody Battles?

The Centers for Disease Control and Prevention (CDC) has long highlighted the benefits of breastfeeding to a baby's health. This benefit is undisputed and supported by the courts as they determine that the proper custody arrangement reflects what is in the child's best interest. However, breastfeeding a child is not the sole reason a mother can get more time with a child or stop the other parent from the custody of the child.

Does a Nursing Mother Automatically Get Preference in a Child Custody Negotiation Under Virginia Law?

No. Breastfeeding does not necessarily give the mother a more favorable outcome on the child's custody agreement.

Although breastfeeding benefits a child's well-being, it is not guaranteed to give a mother more time with the child than the father. Instead, as appropriately adopted by most states, the court determines the totality of the circumstances and rules on the child's best interest. This means that breastfeeding is only one of the factors that the court must consider to determine the rightful custody agreement.

Nonetheless, a parent may present evidence to support their claim regarding breastfeeding. Such evidence may include, but is not limited to, the following:

  • The current age of the child
  • How long has the child been breastfeeding
  • The consistency or schedule of the breastfeeding of the child
  • Whether a child takes a bottle or eats solid food
  • How feasible and sustainable is it for the breastfeeding mom to pump and provide breast milk to the other parent to feed the child
  • The potential impact on the child's well-being if the child is to be weaned from breastfeeding

Ultimately, the court would rule in favor of what is in the child's best interest and not only on whether the child is breastfed by their mother or not.

What Does the "Best Interest of a Child" Mean?

The "best interest of a child" is the general standard adopted by all states in determining child custody agreements. However, the term "best interest of a child" is not set by a specific definition. Instead, the court has to deliberate on many factors applicable to the case to understand how they can render a custody agreement that is best for the child's overall well-being.

Under Virginia law, the courts will consider the following factors:

  • Age, physical, and mental condition of the child;
  • Age, physical, and mental condition of each parent;
  • The existence and condition of the relationship between each parent and the child;
  • A child's needs to maintain meaningful relationships with siblings, extended family, or peers.
  • The existing and future role of the parent in the upbringing and care of the child;
  • Each parent's tendency to support the child's relationship with the other parent;
  • Each parent's willingness and demonstrated ability to co-parent effectively.
  • The child's expressed preference. However, this is only applicable if the child has reasonable intelligence, understanding, age, and experience to express such a preference.
  • There is a family history of abuse or violence within the past ten years.
  • Other factors that the court may deem necessary and proper to consider.

Can a Child Custody Arrangement Be Modified After The Child is No Longer Breastfeeding?

Yes. A child custody agreement may be modified if the child is no longer breastfeeding.

Under Virginia Code § 20-108, a custody order may be subject to modification if:

  • There has been a material change in circumstances; and
  • Such amendment to the custody order is in the best interest of the child

A "material change of circumstances" is something significant that has changed since the current arrangement was adopted. As such, a child that has stopped nursing from their mother is considered a material change of circumstances. Thus, a parent can request that the existing child custody arrangement be modified based on this change, provided such modification caters to the child's best interest.

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