Should Breastfeeding Affect Access to a Child?


Application for Access

The former couple in this case had a brief relationship, during which a child was conceived and later born. While no longer together, both parents had a respectful relationship and played active roles in their daughter’s life. It may seem from its initial description that such a relationship may not need the involvement of the courts; however, the couple was unable to agree on how to split time with their daughter, who at two-and-a-half years old was still breastfeeding. As such, the father applied to the courts seeking greater access to their child.

The father moved from Toronto to Collingwood to be closer to the child and mother, leaving a career with the Toronto District School Board and a house in the city. He testified that he was actively engaged in preparation for parenthood despite no longer being in a relationship the mother of his child. Before their daughter was born he took classes and read books on fatherhood. After the daughter was born, he was very engaged with her on several levels, including music, reading, and physical activity.

The parents had a difficult time communicating during and after the mother’s pregnancy – something the judge suggested may have been due to their short time knowing each other beforehand. During the child’s first two years of birth, the father was limited to two-to-three hour visits after the child’s doctor suggested overnight visits would not be appropriate during the first two year.

Impact of Breastfeeding on Access

After a case conference, overnight visits were agreed to following the child’s first birthday. When the girl was 17 months old her father moved to the Collingwood area to be closer to her.

Despite the agreed upon overnight visits, the mother was not supportive of providing equal custody of the child. She wrote an email to the father stating “As time goes on there will be more opportunity for you to spend time with [our daughter]. But a baby belongs with its mother, and if you had an understanding of the needs of a fully breast-fed baby and truly had Kai’s interests at heart, you would not be bringing this subject up again.”

The Court was critical of the mother’s stance, stating “[The mother] has been unwilling to give a timetable as to when the breastfeeding will end. She believed strongly, through medical advice, in the merits to [the child] of breastfeeding; however, the breastfeeding has a secondary impact upon [the father] in that it is used as an excuse to restrict his access. [The child] is now more than twenty-nine months of age and is still being breastfed. [The child] continues this practice not because of literature that suggests that it is important to breastfeed a child after the age of two, but rather because there is no literature suggesting that it is not in the interests of the child to continue this practice.”

The Decision

Faced with competing interests, the Court issued an order that the mother pump breast milk, which would allow the father to have more access to their child. The Court stated “The medical evidence that [the mother] presented supports the practice of breastfeeding until a child has reached his/her second birthday. [The father] respected her views, but now the time has come for [the mother] to have greater consideration for the relationship between [the child] and [the father]. If she used a breast pump and provided the milk to [the father], he would be willing to give it to Kai.”

If you have questions about separation, divorce, custody or any other family law issue, please contact the offices of Windsor family lawyer Jason P. Howie, online or at 519.973.1500.

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