27 April 2009

Rights of Access Trump Right to Breastfeed

The Globe & Mail has today reported on an interesting case out of the Ontario Supreme Court which addresses a difficult problem: what should the court do when a mother's breastfeeding regimen interferes with the other parent's time with the child?

This issue crops up with surprising frequency. In essence, infants are moored to mothers who breastfeed, and the younger the infant is the more frequent are the feedings, and the closer the infant must remain to mum. This can make access very difficult for the other parent, who not only must see his or her time with the child broken up into two- and three-hour blocks separated by one or two days, the access often has to occur with the other parent standing by. Despite this, no one in their right mind would deny a mother the right to breastfeed an infant, which tends to leave the other parent hanging.

This, at least, is the standard form of the breastfeeding dilemma, which usually resolves itself by the time the child is weaned. On rare occasions, however, a child won't be weaned by the 6 to 24 month mark (www.medicinenet.com), sometimes as a result of the mother's belief in the health benefits of long-term breastfeeding. In cases like this, the other parent's access to the child can become seriously cramped.

In Johne v. Cavannah, however, the judge found that the mother's preference for breastfeeding their 29 month old child had "a secondary impact upon [the father] in that it is used as an excuse to restrict his access." Making things worse, the mother refused to indicate when the child was going to be weaned, leaving the father in limbo.

As a result of the mother's approach, and certain provisions of Ontario's Family Law Act which equally entitles parents to custody, the judge held that the parents should move to a shared custody arrangement and that if the mother wished to continue to breastfeed, she would have to provide the father with bottles of pumped milk.

Update: 28 April 2009

A reader's comment has made me think a bit more about the implications of the Johne v. Cavannah case which deserve some additional discussion.

Fathers (this is a gender-based issue) are often quite vexed by mothers' decision to breastfeed when that decision interferes with their ability to spend time with their children. As I've already said, however, the personal inconvenience of fathers must take a backseat to mothers' reasonable decisions to breastfeed, which comes close to being a fundamental human right if it isn't one already.

Trouble comes calling when a mother continues to breastfeed a child well beyond regional weaning norms, and the father begin to wonder whether or not the mother isn't dragging things out just to prevent him from having the child over night, as opposed to pursuing a legitimate health care objective. This is the issue the court in Johne was called upon to address, but what makes Johne stand out is that the court actually concluded that the mother was intentionally delaying things to frustrate the father's time with the child.

While fathers should certainly look at Johne with hope and take succour in the knowledge that this obstruction to access can be overcome, they should not assume that mothers' right to breastfeed will be set aside for children within the usual nursing age or that it will be easy to get such an order, regardless of the child's age, without proof of the mothers' bad faith.

15 comments:

  1. I think Justice Ingram was wrong in his decision to insist that Ms Johne put her baby on a new breastfeeding schedule, or to replace breastfeeding with a machine.

    I think the best thing for children is that they wean off breastfeeding gradually and slowly, and at their own pace, not on a schedule, and not by a certain number of months of age. It is sad that parents get divorced or cannot co-parent together in the same house, or for a variety of reasons, must lead separate lives. But the solution that babies are fine with pumped bottles of milk is wrong I think, and I believe that anyone who suggests otherwise must not understand enough about breastfeeding to give a qualified answer. Very few children in our culture are lucky enough to naturally wean from the breast, so it is understandable that many people wouldn't be able to give a good answer that reflected the best interests of the child in this case.

    I am not saying that I don't believe this couple shouldn't be working towards 50 50 access.

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    1. As a father going through this I say you are totally nuts. You have no idea what it's like to not have your son for more than 4 hrs at a time and not be allowed overnighters by the mother. Put the shoe on the other foot......

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    2. It's not the delivery that is important, it's the product. If you mothers are so concerned about what is in the best interest of your baby, you will see that an attachment to mother AND father is of the utmost. Therefore minimum 40% access should be allowed and you should pump a bottle for your little one....That way the baby benefits from the nutrition as well as another loving parent.... Make sense?????

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    3. I agree that access should be granted to those fathers who would actually care and love and play and have fun and bond with their child , I am a mom breastfeeding and going through this, while I would pump bottles or even consider adding formula just so he could have overnights if he wanted but he is so full of anger right now that he is trying to take her from me and as a mom who is the sole care giver for our 9 month old ,he seems to believe he could do better but can't take when she cries for a moment when I put her down

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  2. I understand your point, and I tend to agree with you about the importance of breastfeeding and your approach to weaning. The problem I think Judge Ingram was getting at is that sometimes some mothers use the near-sacred status of breastfeeding to put off and hinder the other parent's time with the child.

    The question, I think, is deciding how to deal with the other parent's access once it is proved that the mother is acting in bad faith without jeopardizing the child's best interests.

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  3. I find it concerning that regional weaning norms are in any way a guide to what is a reasonable period of time to breastfeed. The Canadian Pediatric Society recomends breastfeeding for the first two years of life, and a minimum of one year. The medical benefits to mother and child are medical fact, not guided by regional norms.

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  4. Thank you for writing this. As I am going through this exact case. A very messy divorce and three children. One of which is an eighteen month old baby. The custody arrangement is equal parenting for the two eldest, but the baby has two overnights with dad. I am very upset by this as I plan on breastfeeding until two and a half as I did with our last child. Or when she's ready to quit... Sadly, my ex husband does not feel this way and is even fighting this order. He wants equal parenting time with her. The judge has said that the " breastfeeding excuse " is just that. And we have court again on Jan 21 2010. The judge also said that if I can prove that me breastfeeding our daughter was more important then the bond with her father then she would listen. Now, that is rediculous! I don't understand why it is this way in CANADA? Isnt it her right to breastfeed? Not only has my ex husband been arrested for assaulting, but now he gets "equal parenting" time with our children!? What kind of system is this we have?

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    1. I am going to court tomorrow for this exact reason. My baby full on nurses and he wants overnights and more access but I breastfeed and he still nurses during the night. He left me at 8 weeks pregnant now my baby is 9 months and comes full force into court hearing.

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    2. I am going to court tomorrow for this exact reason. My baby full on nurses and he wants overnights and more access but I breastfeed and he still nurses during the night. He left me at 8 weeks pregnant now my baby is 9 months and comes full force into court hearing.

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  5. To Anonymous:

    So, if the judge suggested you try to prove that breastfeeding your eighteen month old daughter is more important than the bond with her father, then I suggest you attempt to do so.

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  6. It is not only the fathers who are denied access in these circumstances...I've met up with my grandson on only seven occasions since his birth 14 months ago. His mum could wean him off daytime feeds to enable her to send him to nursery but, 'cannot' manage to get him off his last feed at night so, he can stay over with his father and two sisters. I barely know my little grandson. This is a source of great stress to me. I love him too.

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  7. I must chime in on this one. I am a breastfeeding counselor and an anthropology student. More than that I am a mother of two kids who was just handed down an interim order to wean my two year old.
    I view breastfeeding as a human right of the child to normal nourishment and nurturing. The science is there to back it up. We know that breastfeeding is not only about the substance from studies showing that even bottlefeeding expressed breastmilk has negative implications - increased rate of ear infections, increased chances of improper jaw development and possibly need for braces in later years, overeating - obesity due to the satiation reflex diminishing with milk 'just pouring in'. The relationship of fathers and their children is very important. But breastfeeding is also about the mother-baby dyad. It is an exclusive relationship like no other where it is purely about survival - physical as well as psychological.
    I would add that we don't really know what the weaning age of our children is in our community because we don't talk about it, and we don't study it. I would say every mother who is willing to support and nurture a child until he self-weans is a hero in my book. But also is the Dad of that child because he is doing an excellent job of being a Dad and partner to the Mother to enable them to have that bond. And I bet that every Dad, whose child was allowed to self wean, has a very secure and deep bond with him too. I am not sure why in our society Fathers feel so threatened by breastfeeding. It is a travesty and the legal system is handing down injustice.
    I would point you to some of the points on the topic of normal length of a breastfeeding relationship. Katherine A. Dettwyler, Ph.D. has articulated the above quite well in http://www.kathydettwyler.org/detletter.htm , Dr. Jack Newman points it out at http://www.nbci.ca/index.php?option=com_content&view=article&id=78:breastfeed-a-toddlerwhy-on-earth&catid=5:information&Itemid=17
    New Mothers Speak Out - a 2008 survey should be a good eye-opener as to what happens inside families during childbearing and early years of parenting. http://www.childbirthconnection.org/pdfs/new-mothers-speak-out.pdf

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  8. I would like to add that I understand the hurt feelings going around but truly, if you are a family member and have the best for your child/grand child/niece/nephew at heart you would want that child to grow into a well balanced, strong, and a beautiful individual. The only need that goes away is the one that gets met. If it does not get met it can hide, lay dormant, and morph into a problem. Nobody says that the child (1, 2, 3 years old, or how ever old) who chooses to breastfeed cannot have access to the other parent. I think we need to think more outside the box in order to accommodate the child's needs. And trust me if I say it is the child's need to be breastfed and continue that bond with his mother. Just like that child has an essential bond with his father. I believe that mother/father relationship to a child is not equal but rather equitable. The importance of both of them is equal, however, we must realize and support the fact that young child bonds more securely to his mother and later, around the age of five starts independently venturing further into the world and THAT is the very important time for Dad's where his relationship to Dad takes off like a greased lightning while the mother-child one is continuing.
    FYI ... one cannot make a child or even a baby to breastfeed if he/she does not want to. Trust me, it has been tried for millennia. :)
    Also, I'm sorry if this sounds harsh but ... relatives' rights don't trump that of parents'. To the Grandparent above ... maybe visiting your grandchild while in the care of the father would be nice - arrange with him. Or perhaps working on the relationship with the mother could make a difference. Speaking from personal experience, as well as professional, the relatives who respect the parent's boundaries and different ways of living will cause less stress and friction and thus will be more welcome. :)

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    1. Well, any child that eats a burger at McDonald's, chicken wings, potatoes, rice, corn, carrots, moose, elk, etc etc etc etc should'nt be held from his father. Tell me that 20 hrs with the father in a 9 day cycle will allow for a great father/son bond and I'll tell you to get a lawyer cuz you're gonna lose...

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  9. I am a father currently going through custody discussions with the mother of my 6 month old daughter. She is breastfeeding and continues to 1 year old. I find some of the above comments disturbing about the mother child relationship being more important. I cannot provide breastmilk...I would if I could...i can, however, love my daughter unconditionally, nurture her, comfort her, care for her, talk to her, sing to her, feed her (bottle), help her develop etc etc etc....Breastmilk is healthy yes, but it has limited me and my daughter to 15 hours access in a 2 week period...I would challenge all mothers if they would be comfortable with that kind of access. The unfortunate thing is that breastfeeding is used often as a means to limit access. The mother of my daughter is doing this...she did not breastfeed her son from a previous marriage and did not want to breastfeed our daughter until we split up...she cited economic reasons ( 1 income ), however she went back with her ex-husband and has 2 incomes. She freezes milk immediatly after expressing so that if some left over after my bottle feeding I can't save it (re-freeze). She won't tell me how much she has pumped or saved.She said she was having problems pumping at 4 months old and that it would affect my access, I offered help with a better pump and offered the phone# to breastfeeding clinic but she wasnt interetsted. She won't date the milk, she's numbering the bags. She says no to occasional supplementing ( which means she won't provide enough milk for my daughter and I to see my family for a weekend who lives 5 hour drive away...for at least a year). Again, it's easy for mothers who are breastfeeding to comment on this topic, as they seem to hold the 'trump card', and do not have to live with minimal access to their child. I think we often overlook the emotional/psychological needs of a child to have both parents involved as much as possible. I can't offer my daughter my breast, but I can offer her everything else...

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