breastfeeding

Everyone should take note of this case as it is likely to come up again and again in divorce, visitation, and custody situations.  The facts of the case are set out below, and click here for the full opinion.  The main takeaway for me as a practitioner is to make sure to address breastfeeding in the divorce decree or property settlement agreement if the mother is wanting to continue breastfeeding.  Here, the parties had agreed that the child could breastfeed until 18 months, and then the father could get standard visitation.  However, once 18 months came around, the mom and her lactation specialist felt the child still needed to breast feed for several more months.  The trial judge decided there was no change in circumstances from the time of the divorce decree and therefore did not change the visitation schedule to account for breastfeeding beyond the child's 18th month.  Supreme Court of Arkansas affirmed.

Facts of the case:  On December 25, 2008, Michelle Brown and Vernon Brown were married. They separated on or about October 22, 2009, while Michelle was pregnant. On December 26, 2009, she gave birth to a daughter. On August 10, 2010, Vernon filed a first amended complaint for absolute divorce. On October 21, 2010, the circuit court held a hearing on the matter, at which time the parties stated that they had reached an agreement on visitation. The agreement was that Michelle would be granted custody of their daughter and that until their daughter reached eighteen months, Vernon would have visitation privileges from 4:00 p.m. until 8:00 p.m. every Tuesday and Thursday, as well as on every other Friday, Saturday, and Sunday for the same time period.  This limited visitation schedule was agreed upon by the parties in order to accommodate Michelle’s nursing of the child.1 The parties also agreed that once their daughter reached eighteen months of age, they would adhere to the standard visitation schedule of five weeks in the summer, alternating weekends, and alternating holidays.  At the hearing, the circuit court questioned Michelle and Vernon about whether they understood and agreed to the terms of the visitation agreement. Both parties stated that they understood the terms of the agreement and that they knew they would be bound by it. The circuit court accepted the agreement and included the visitation terms in the subsequent divorce decree filed on November 8, 2010.  

At the time of the child’s eighteen-month check-up, around June 26, 2011, she was still aggressively nursing six times a day. At some point in mid-July, which was well into Vernon’s scheduled summer visitation with the child, Michelle contacted Pamela McArthur Elliot, a lactation consultant who had visited with her once immediately after the child was born, about a weaning schedule. During the time that Michelle was waiting to hear back from Elliot, Michelle and Vernon attempted to work out a weaning schedule themselves. The parties first agreed that they would cut back on the number of times the child nursed each day to once every twenty-four hours. This schedule continued for about a week, and then the parties agreed to reduce the nursing schedule to once every forty-eight hours. After the parties had begun the once-every-forty-eight-hours nursing schedule, Michelle spoke with Elliot, who recommended that she continue to nurse the child at least once nightly for up to two years and beyond, or as long as the child and Michelle desired to nurse. After receiving Elliot’s recommendation, Michelle informed Vernon that she had spoken with Elliot and that they must return to the schedule of breast-feeding at least once every twenty-four hours. 

Afterwards, the parties could not come to an agreement and litigation ensued.

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