Copyright (c) 1998 Virginia Journal of Social Policy & the Law
Virginia Journal of Social Policy & the Law
ARTICLE: BREASTFEEDING AS A FACTOR IN CHILD CUSTODY AND VISITATION DECISIONS
5 Va. J. Soc. Pol'y & L. 433
Kristen D. Hofheimer *
Over the past decade, breastfeeding has surfaced as an increasingly common issue in child custody and visitation litigation. 1 This development is partially due to the abolition of the tender years doctrine, 2 under which judges always awarded custody of a breastfeeding child to the mother unless she were shown to be unfit. 3 Additionally, prolific research conducted in the 1980s and 1990s reveals the superiority of breastfeeding over any form of artificial infant feeding. 4 Many mothers are heeding the advice that "breast is best." 5 As a result, more breastfeeding mothers involved in custody disputes are "challenged to protect the breastfeeding relationship." 6 Indeed, mothers are often faced with custody and visitation orders that do not allow them to continue breastfeeding their children.
Today, courts typically make decisions about child custody based on what will promote the "best interests of the child." 7 State legislatures have attempted to codify this highly indeterminate test into lists of factors or criteria for judicial consideration in making a custody determinations. 8 Although the criteria may vary from state to state, no statute currently lists breastfeeding as a factor relevant to custody determinations. Once a court has resolved custody, statutory and judicially determined guidelines further assist the judge in establishing a visitation schedule for the noncustodial parent. 9 Visitation statutes also fail, however, to alert the court to consider whether a child is breastfeeding in reaching its decision.
Legislative silence on the issue of breastfeeding in custody and ...
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