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Parenting Time in Custody Battles: Babies, Breastfeeding, and the Family Court’s Balancing Act

After any separation and divorce, big changes occur so that people can move on with their lives separately. For some, it’s a double-whammy when it comes to parenting time with babies in custody battles, or if one of the parties is pregnant. How can the other parent have fair and adequate parenting time with an infant? And especially if one party wants to move far away?

First, keep in mind that biological mothers are not automatically granted the right to take a baby wherever they like. When both adults involved don’t agree to a relocation, it becomes necessary to go to family court and get a judge to grant an order allowing the move.

California attorney Brian Pakpour shared some insight on what to consider if you are pregnant or have a very young child when putting together a parenting plan and access schedule, especially in a high-conflict situation where there may be domestic violence involved. Here are excerpts from what he said during our live interview on this topic, which include concerns about a baby’s safety during a custody battle…

If allegations are made, typically the court’s going to want to have some kind of evaluation, some type of investigation into these claims because these are just the claims of one parent.

When the other parent doesn’t full-fledged admit to everything, the court kind of throws up its hands: how do we know if they are mentally unwell, or have a drug problem? Is there any evidence of that?

For instance, if there are alcohol allegations, did they have a DUI recently? Do you want to go to trial and have a short evidentiary hearing to put on friends who can testify that they commonly drink and drive, or maybe have a mental health evaluation and see what comes out of it?

There are lots of different mechanisms, and sometimes it can be expensive trying to prove these things in court, but obviously, all of this would have an impact on parenting. If the court finds that these things are true, then they’re going to do things to ensure that the child is safe, before you ever get to “best interests.”

Best Interest Standard & Safety

Regarding the “best interest” standard in a family law case, the first thing the judge is mandated to do is to ensure the health, safety, and welfare of a child. If there are any allegations involving domestic violence, severe mental health issues, or drug and alcohol problems, they have to deal with that first before they get to the mental health issue, and before they get to the best interest standard.

When there are domestic violence or restraining orders involved, there are qualifications. You might have supervised visits, and there are two kinds:
professionally-supervised visits, and then there are nonprofessional supervised visits.

In professionally supervised visits, which are more of the gold standard, you would have an independent third party, a paid individual, who would come along for the visits and supervise them.

The frequency and duration of the visits can be a few times a week, although it gets expensive when you’re talking about supervised visits. You would drop off the baby to the supervisor and then the supervisor would meet up with the other party. All safety protocols would be observed in terms of transportation, etc., and therefore the visit would be safe.

Nonprofessional supervised visits make things a little bit more flexible, and know that you need to be more flexible when it comes to a baby. This could be with a member of the family that you trust, like maybe it’s the father’s mother, the paternal grandma, the paternal grandpa, a paternal aunt, or maybe it’s somebody in the mother’s family who gets along well with the father.

Of course, I’m being gender-specific, but that’s typically the scenario that we have. But it could work the other way around if you flipped it.

I know feeding is a concern, so that’s why the younger the child is, the shorter the duration of the visit. Maybe it’s only an hour to start, and maybe that’s not a bad idea because you’re not even sure if this dad even has any idea how to take care of a baby for an hour. That may be something that they need to warm up to, or maybe take a parenting class, which sometimes the courts order as well.

Frequency of Visitation & Caring for a Baby

A “step-up” can be something that happens from the get-go or could be a step-up in terms of you just keep going back to court, and the court keeps stepping it up as it sees progress. But you can go from, for instance, an infant child who you have an hour a day for a few days a week, to two to three hours a few days a week, to after the child is three months old, to when they’re six months old, having an overnight, maybe from Saturday to Sunday, and then a couple of other days a week when you’re with the child for a couple of hours and then maybe with the child’s even one year old or a little bit older, having a whole weekend.

The younger the child is, frequency is more important than duration because your child can’t hold their attention.

Breastfeeding can be a huge issue. As much as people love to talk about what the World Health Organization and other studies show about the benefits of breastfeeding, what they forget is all the studies that show the benefits of having two involved parents in a child’s life, which can oftentimes be even far more important.

There’s a really good article in The New York Times that showed that no benefits of breastfeeding accounted for the differences in things like socio-economic status, family status, and things like that. Chances are, if a child is breastfed, it’s being breastfed often by educated parents who are already going to have the background and the structure so that child can go on and have a successful life, can afford college, etc.

It’s all about balance. Whenever you think about the legal system, it’s all scales, right? Breastfeeding is okay, but how do we balance this out with the other parent?

And so you’re going to be able to keep that child exclusively breastfed much better if you’re able to pump and provide a supply for the other parent to take with them.

If the child gets to six months, twelve months, and the other parent is actively involved, and there are no other concerns about domestic violence, drug use, alcohol and health, safety and welfare issues – all things being equal – the court’s going to be, like, we need to start balancing this out.

If you can’t pump, and you can’t provide enough, then the court may, for probably dad or if it’s same-sex partners, ask for you to supplement with formula. Because we’re getting to a point now in the child’s life where breastfeeding is important, and I respect that, but also what’s important is the relationship with the other parent.

Just because they are having some formula doesn’t mean we’re ceasing breastfeeding. You can still breastfeed the child when they’re with you, but for a few hours a day for them to be with the other parent, or a half a day, or an overnight for them to be able to supplement with formula is what the court might consider.

I’m not advocating these positions. But the judge has to weigh these concerns. You have to deal with the valid concerns that the other parent has, which is that, “I want to be a part of this child’s life.”

We have something that was codified here in California until the eighties called The Tender Years Doctrine, and that meant that for a child’s early life, the mom was the favored parent in some states.

There are a lot of moms out there who still feel that way, and so they use breastfeeding as sort of a weapon in their toolbox to say, “Yeah, I’m breastfeeding.” They may or they may not be; they may actually be supplementing with formula at home themselves. But when they show up to court, it’s all about the breastfeeding to make sure that they can limit to the extent possible the time with the other parent.

Breastfeeding is sometimes, well, I call it weaponized. I only say that because I’ve had those moms as clients, and they’ve confided in me that they’re breastfeeding, and it’s not even that successful, but they’re using every tool in their toolbox to keep the child from the other parent.

Whether it’s abuse or other factors, if they think that breastfeeding can give them an advantage in the family law case in terms of making sure that the child doesn’t see the other parent as much, or if they legitimately feel like it’s best for their kid, there are some women who feel like no matter what any judge tells them, or counselor, or certainly any lawyer tells them, that women are better caretakers of children. Children should be with women and should be with their moms until they reach a certain age. But California and other states got rid of the Tender Years Doctrine because of equality, and to some extent, feminism.

The Evolution of Custody Principles

From a realistic standpoint, the eighties were the time when more women were entering the workforce and divorce was starting to skyrocket. Women were starting to become more able to support themselves. So why stay in this unhappy, maybe even abusive marriage? So it was, “I’m going to get out and I can work, and so if I can work and I can get out, why not have it so that there is no favoritism in terms of custody for the children?”

An intact family would have been beautiful, but it didn’t work. And now you’re asking a stranger in a black robe to be fair to both you and your child, which is really important. And one of those things is to make sure your child has a relationship with both parents, because that’s one of the top custody factors.

I know it’s very hard to hear for a lot of breastfeeding parents, and I totally understand how people feel on both sides of that argument, but at the end of the day, the judge is on the 50-yard line, trying to be like, “I’m going to make sure the playing field is at least a little equal; to make sure this is all fair.”

And again, their focus is the child. I want them to be healthy physically, but I also want them to be healthy emotionally and have two healthy involved parents in their lives.”

Like it or not, we find an expert opinion is one of the best ways to educate ourselves on what factors the court is going to be considering for any significant decision. Remember that most people involved with your case in family court will be listening to BOTH parties’ narratives, so it’s important that you are organized and prepared to present your side of the story as credibly as possible.

(Note: This snippet is taken from our latest interview, “How To Protect Yourself from Parental Alienation Claims When Dealing With a Toxic Ex: Parenting Plans, Relocations, and Legal Agreements” with California Family Law Attorney, Brian Pakpour, and is Part II in our series on this topic. Check out Part I in our earlier blog, “Relocations in Custody Battles and High-Conflict Divorce: How to Protect Yourself From Parental Alienation Claims by Appearing ‘Reasonable‘” ).

Our mission at Been There Got Out is to help teach you how to present your case as powerfully as possible, so that you have the chance of the best outcome in family court and beyond.

If you need help with your individual situation, please reach out by scheduling a free discovery call, or signing up for our Legal Abuse Support Group on the homepage of our website,

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