Can A Court Order A Mom To Stop Breastfeeding?

Photo: Michael Kovac/Getty Images/Cost Plus World Market

It's not something most moms would list as a barrier to breastfeeding — but, as HGTV host Nicole Curtis’ custody battle has shown, it is possible that a court order can mandate a mother to cease nursing her child.

The host of Rehab Addict recently went public with her struggle to continue exclusively nursing her son, Harper, now 2 and a half, while hashing out a custody agreement with her ex, Shane Maguire.

The pair were never married, and Maguire sued Curtis two years ago for joint custody and shared parenting time, taking paternity tests to show he is the boy’s biological father. People magazine reports that when Harper was 6 months old, Maguire was awarded visitation two days a week and, up until that point, the baby had been exclusively breastfed. When it came time for shared visits, Curtis says she was shocked that she would have to relinquish her choice to nurse in order to accommodate the custody arrangement.

“He had never had a bottle before, and then all of a sudden that was his only option while he was with his dad,” Curtis told the magazine. “I had no idea that a judge could say, ‘You’re court ordered to not feed your exclusively breastfed child.’ It’s important that children have both of their parents. But [preventing] me from breastfeeding my child just so he can see the dad is not right.”

After parenting time was granted to Maguire in July 2017, Curtis fought the ruling, saying the arrangement jeopardized her milk supply because she was unable to pump breast milk for bottle feedings. “I had to pay an outside licensed lactation specialist to witness me pump without results,” she told People. “I sat in my living room with my shirt off, hooked up in front of a stranger to document that my body did not produce enough.”

Curtis also maintains the child won’t take a bottle, however, an attorney for Maguire told People that the baby took formula via a bottle at six months. For his part, Maguire accused Curtis in court of continuing to breastfeed the now-toddler as a way to prevent him from getting time with his son (after she failed to bring Harper to court-ordered visits with his dad), according to DetroitNews. As it stands now, Curtis has access to her son once a day during Maguire’s visitations in order to breastfeed.

While the he-said, she-said here is pretty clear, what does the law really say? “The court can weigh in and rule as to whether breastfeeding in the way that she wanted to breastfeed was a way to frustrate the bond between the other parent and the child," says Gwendolyn Davis-Yancey, J.D., CEC, CSC a family law attorney and strategist who is not involved in this case, though she is based in Michigan, the state where it's taking place.

She says that, while it is difficult to give a definitive legal opinion without all the facts of the case, when ruling on a custody case, “The court really has to weigh the emotional effect that the child has developed as part of breastfeeding, and balance that against the importance of bonding with the other parent.”

Indeed, Curtis’ argument goes beyond one that focuses on the health benefits of breastmilk. The TV host and mom practices Baby Led Weaning, a practice where children eat and discover food at their own pace, and says nursing is part of a parenting style she’s adopted for her and her child. “I keep saying, it’s not like he’s seven or eight — he’s still a baby,” she told People.

Because the child is now almost three, Davis-Yancey maintains that the best way to advocate for a mother’s right to continue breastfeeding in a case like this is to argue around the emotional bond and attachment, versus the nutritional value of breastmilk. "If this were my client,” she says, “I would have hoped the judge would have considered an expert opinion, someone who has observed children who breastfeed for a longer period of time. I would have brought in someone who had met with the child and observed the child, and could show that the child shouldn’t abruptly be weaned.”

So what rights does a mother have to breastfeed exclusively, when it comes to a custody agreement? “There is so much gray area when it comes to custody and family time,” says Davis-Yancey. “There are so many unique factors to each case.” Courts will consider various factors such as the age of the child, family dynamics, and if there was ever a clear primary caregiver.

And while Davis-Yancey says that “typically courts are going to rule in line with the mom being able to breastfeed the child,” as Curtis has learned, each case is treated differently.

“A year ago today, I learned that nursing babies have ZERO rights in the eyes of family law,” Curtis wrote in a tweet from July 7, which marked the anniversary of the court decision. “I’m still crusading, trust me on that.”

Part of her crusade is advocating for what she believes is her — and her son’s — choice. “Every single day I have to weather criticism about how my child is too old to breastfeed,” she told People. “But when he weans, it’s going to be his decision. I truly believe it’s the child’s choice.”

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