Minnesota’s best interest factors should address breastfeeding

The facts are in. The law should reflect them. 

A review of Minnesota Statutes leaves one with the firm conviction that Minnesota places breastfeeding, and increasing the rates of breastfeeding mothers, as a priority. 

• Minn. Stat. §145.894 directs the commissioner of health to develop public education programs promoting the Maternal and Child Nutrition Act and dictates that the programs must include a campaign to promote breastfeeding. 
• Minn. Stat. §145.905 protects the right to breastfeed in any location, public or private. 
• Minn. Stat. §181.939 requires employers to provide breaks for a mother to express breast milk for her infant child and to provide reasonable accommodations for doing so. 
• Minn. Stat. §617.23 specifies that breastfeeding does not constitute indecent exposure. 
• Minn. Stat. §256B.79 requires that a nursing facility provide patient education about breastfeeding in order to be eligible for grants under the Chapter. 
• Minn. Stat. §241.89 requires correctional facilities to provide education on breastfeeding to pregnant incarcerated women. 

The breadth of statutes concerning breastfeeding makes the absence of any reference to breastfeeding in the family law statutes puzzling. But Minnesota is not alone on this front. While the medical community globally agrees that breastfeeding and breast milk are best for children,¹ very few states address the act in their family law codes. Despite every state in the union having protections for the act of breastfeeding,² only four list breastfeeding as a factor to be considered in custody matters: Maine, Michigan, South Dakota, and Utah.³ Hawaii’s statute suggests consideration of breastfeeding in parenting plans, but does not require it.⁴ 

What do courts do in the absence of such language? There are very few published cases that address the issue of custody and breastfeeding. This does not indicate a lack of controversy around the issue; rather, the delay of the judicial process often makes the subject moot by the time appellate courts can consider the matter. Indeed, a New York court noted that by the time the matter came before the court, “[the child] would now be four years old [and] it appears that the issue is academic.”⁵ 

Does Minnesota need a statute specifically addressing breastfeeding and custody / parenting time? In short: yes. When the ancestors of our current best interest factors were put into law in 1969, only 22 percent of American women breastfed.⁶ According to the CDC, 79 percent of babies born in Minnesota in the year 2017 were being breastfed at 6 months of age.⁷ Science and society have changed, and the statutes need to change with them. The process of fitting breastfeeding into our current statutory framework is hardly a simple matter. The lack of statutory guidelines and dearth of case law leave judges in a lurch and puts parties at the mercy of wide-ranging judicial discretion. It makes coming to family court on this issue unpredictable—and family court with a young child should be anything but unpredictable. Minnesota law as a whole recognizes the importance of breastfeeding; it’s time for the custody and parenting time statutes to reflect it. 

Our current framework

The nutritional, physical, and emotional benefits of breastfeeding implicate a number of factors already cited as elements of a child’s best interest under the current law. 

Sec. 518.17 subd. 1(a)(1) — Physical needs and development

The American Academy of Pediatrics (AAP) recommends that a child be exclusively breastfed for six months, followed by continued breastfeeding with the introduction of others foods until at least one year.⁸ Breast milk has every nutrient necessary to meet a child’s needs, including living cells that inhibit the growth of harmful bacteria and viruses in the child’s system.⁹ Breastfeeding lowers the risk of respiratory tract infections,¹⁰ gastrointestinal infections,¹¹ and Sudden Infant Death Syndrome,¹² as well as the incidence of clinical asthma, skin reactions, and eczema,¹³ celiac disease, and inflammatory bowel disease.¹⁴ It also lowers the risk of childhood obesity, type 1 diabetes, and childhood leukemia/lymphoma.¹⁵ While there is debate about long-term intellectual outcomes, the AAP’s review of the science concludes that breastfeeding is highly correlated with high intelligence scores and sound long-term neurodevelopment.¹⁶ 

The physical act of breastfeeding is beneficial as well. Nursing exercises the muscles of the jaw and face in a way that causes the bones of the face to develop more fully.¹⁷ Babies who are fed from bottles have narrower jaws and a higher palate that is more likely to restrict nose breathing.¹⁸ Babies who breastfeed less than one year are more likely to need orthodontia and have snoring and breathing-related problems in their future.¹⁹ It is important that the courts understand that at-the-breast feeding and not simply breast-milk-feeding is important to the benefits available to a child. 

For the child nursed beyond the age of 12 months, there is weighty research supporting the nutritional benefits of “extended breastfeeding.” Breast milk continues to provide substantial nutrients beyond 12 months, particularly protein, fat, and most vitamins.²⁰ The amount of antibodies and immune factors in milk increases as a child ages (likely an evolutionary response to growing children’s habit of putting things in their mouths).²¹ Toddlers that are breastfed are sick less often than their formula-fed counterparts.²² The World Health Organization recommends breastfeeding to age two, at a minimum.²³ 

Sec. 518.17 subd.1(a)(2) — Special medical needs

Breastfeeding children who were born prematurely lowers the rates of sepsis and infection, and improves neurodevelopmental outcomes as well as mental, motor skill, and behavior ratings as they age.²⁴ Babies with genetic conditions that affect their immune systems (Down syndrome, cystic fibrosis, celiac disease, or other malabsorption issues) are recommended to breastfeed due to the superior antibodies and immunoagents present in breast milk as well as the easier digestion.²⁵

Sec. 518.17 subd 1(a)(1) — Emotional needs and development 

Beyond basic nutrition, breastfeeding also provides emotional and psychological benefits to a child. Breastfeeding promotes a secure attachment of the child to the breastfeeding parent, which has a significant impact on mental development. Dr. Eleanor Willemsen, Ph.D. and Kristen Marcel wrote an academic article aimed at the family bar entitled “Attachment 101 for Attorney: Implications for Infant Placement Decisions.”²⁶ Willemsen and Marcel write:

Attachment in infancy gives the individual a base of operations from which to venture forth to learn about the world, connect to other people in it, and acquire a firm sense of one’s self and one’s place in that world.²⁷ 

According to Willemsen and Marcel, in infancy, attachment needs are met by actual proximity, physical contact, and communication through eye contact or gesture with the caregiver.²⁸ Breastfeeding naturally fills each of those needs and, therefore, creates a strong attachment to the breastfeeding parent. Having a secure attachment, and not disrupting it, provides numerous benefits for a child in the first 24 months, such as increased independence, self-awareness, and superior sensorimotor skills²⁹ as well as longer-term benefits that include earlier language development and better social skills.³⁰

Sec. 518.17 subd. 1(a)(10) —The benefit of maximizing parenting time with parents

Attorneys and courts may be eager to support breast-milk-feeding (that is, bottle-feeding expressed breast milk) as distinguished from at-the-breast-feeding: It makes balancing parenting time allocations easier. While there needs to be a balance for both parents, it is important to stress that the physical act of breastfeeding provides significant benefits beyond nutrition. This includes the muscular skeletal benefits discussed above as well as the psychological benefits. Importantly, maintaining a secure attachment to the breastfeeding parent can actually promote successful parenting time with the other parent. According to Willemsen and Marcel, “[a secure attachment] enables the child to tolerate being separated from the caregiver, both physically and mentally, without anxiety increasing enough to disrupt play.”³¹ By encouraging breastfeeding and a secure attachment to the breastfeeding parent, the best interests of the child in having a healthy relationship with the other parent are promoted because the child will be better able to tolerate separation. 

What a breastfeeding best interest could do

Currently, five states address breastfeeding in their family law statutes as it relates to custody and parenting time schedule. In Hawaii the statute states that “A detailed parenting plan may include, but is not limited to, provisions relating to… breastfeeding, if applicable.”³² Although it is valuable that the statute sets forth breastfeeding as a consideration, it gives no guidance whatsoever as to how it should affect parenting time. 

The state of Maine, like Minnesota, uses best interest factors—and, in listing them, notes that the court must consider “[i]f the child is under one year of age, whether the child is being breastfed.”³³ One can infer from this language that parenting time should be set in a way that maximizes a child’s ability to continue to breastfeed until one year old. But research has demonstrated that there is nothing magical about turning one; many children breastfeed beyond this age and receive proven benefits from it. Each child is unique and should be allowed to have a parenting time schedule that supports the child’s ability to continue to breastfeed until its natural conclusion for that child.  

In Michigan, the statute creates parenting time factors, one of which is “Whether the child is a nursing child less than 6 months of age, or less than 1 year of age if the child receives substantial nutrition through nursing.”³⁴ The Michigan statute takes the age limit in the wrong direction from Maine’s statute and then sets a standard for consideration of breastfeeding after six months that is too subjective and difficult to prove.

Utah has detailed guidelines that establish a parenting time schedule for the noncustodial parent based upon a child’s age and breaks this down by stages according to age. For example, a child that is five months old or younger is to be with the noncustodial parent for six hours per week in three blocks of time.³⁵ There is then an expansion at five months, nine months, 12 months, 18 months, and three years. Utah also sets forth considerations for deviating from these guidelines such as “the lack of reasonable alternatives to the needs of a nursing child.”³⁶ But the guidelines do not define “reasonable alternatives.” Is asking the breastfeeding parent to pump a reasonable alternative? What about supplementing with formula? In the end, the statute is vague. 

South Dakota sets forth the most detailed prescription for addressing the needs of breastfeeding children when setting a parenting time schedule. It is worth quoting at length: 

“Parents must be sensitive to the special needs of breastfeeding children. A child’s basic sleep, feeding, and waking cycles should be maintained to limit disruption of the child’s routine. Forcibly changing these routines due to the upheaval of parental disagreement is detrimental to the physical health and emotional well-being of the child. On the other hand, it is important that the child be able to bond with both parents.

“For children being exclusively breastfed, the nursing child can still have frequent parenting time with the father. The amount of time will be dictated by the infant’s feeding schedule, progressing to more time as the child grows older. Yet where both parents have been engaged in an ongoing caregiving routine with a nursing child, the same caregiving arrangement should be continued as much as possible to maintain stability for the child. If the father has been caring for the child overnight or for twenty-four hour periods while the nursing mother sleeps or works, then these guidelines encourage that arrangement to continue.

“A mother may not use breastfeeding as a means to deprive the father of time with the child. If, for example, a nursing mother uses day care or a babysitter for the child, the same accommodations (i.e. bottle feeding with breast milk or formula or increased time between breast feeding sessions) used with the daycare provider or babysitter will be used with the father, if the father is capable of personally providing the same caregiving.”³⁷

This statute gives a lot of guidance on how to look at each child’s individual needs and schedule indicating the parent that is not breastfeeding should have parenting time that is subject to the child’s routine. The final paragraph, however, turns a critical eye toward the breastfeeding parent, suggesting breastfeeding can be used as a weapon to deprive another parent of parental rights. This language potentially puts the breastfeeding parent on the defensive. It further sets forth a way to incorporate the other parent in the schedule of the child that is already dealt with earlier in the statute and thus seems duplicative and unnecessary.

It’s time for Minnesota to factor in breastfeeding

Given the proven health benefits, both physical and psychological, to a breastfed child, continuing the physical breastfeeding relationship should be a priority in family law cases. Breastfeeding should be supported—as should the need of children for both parents. Nothing in this article should be construed as advocating for a breastfeeding parent controlling a child’s schedule or engaging in “gatekeeping.” Willemsen and Marcel conclude that babies can, and often do, form multiple attachments including with mother, father, and a regular caregiver.³⁸ 

The realities of biology often result in a breastfed child being primarily attached to the breastfeeding parent at first, but the relationships of both parents with a child are important. It is time for the state to provide guidelines for the courts and the parties on how to protect the breastfeeding relationship and ensure a healthy relationship with both parents by adding it to the best interest factors. 

JACQUELYN S. LUTZ leads the family law practice at Messick Law, PLLC. She has been a faculty member for both the MSBA and Family Law Institute and selected to Rising Stars by Super Lawyers.

LINDA R. ALLEN, a shareholder at Wolf, Rohr, Gemberling & Allen, P.A., has been quoted by the AP, appeared on MPR, testified regarding family law legislation, been a faculty member for Family Law Institute, and named to Super Lawyers.