Should a Breastfeeding Mother Have Custody Over a Man?

The “Tender Years Doctrine” in South Carolina gave preference to a mother having custody of a child before a man was abolished many years ago.  However, an interesting argument that I sometimes make to the court is that a breastfeeding mother should have custody over an equally fit father.  The basis of this argument is that breastfeeding has numerous benefits.

Many medical authorities, including the American Academy of Pediatrics (AAP) and the American College of Obstetricians and Gynecologists, strongly recommend breastfeeding. Some of the benefits include decreasing the chances of asthma and helping fight off infections in the child.  With the benefits of breastfeeding widely accepted, the argument to a Family Court judge as to why the mother should have custody of the child is that it is in the child’s best interest that he/she continued to be breastfed.  Now, of course, breastfeeding cannot go on forever, but at least the argument can be made on a short-term basis that the mother should retain custody.  Of course, the court will want to know whether the mother is pumping breast milk for the child which can be sent with the child to the father’s home.  If the mother is not pumping, the court will want to know “why not?”.  It may be that the child simply will not take a bottle or there may be some health reason that only a doctor can explain. 

If the child’s pediatrician recommends breastfeeding rather than other means of feeding, make sure you get a statement from the doctor explaining why breastfeeding is the only option for feeding and how long the doctor foresees this requirement lasting. Family Court judges put a lot of weight on third-party witnesses, especially doctors, to support their decision on whether to award custody to a fit mother who is breastfeeding rather than an equally fit father.

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