EPISODE 39

Custody and breastfeeding with family court judge James Jeffrey Culpepper

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Episode Transcript

January 8, 2021

Family court can be so stressful... what can I do to make this a little bit easier?

This is Maureen Farrell and Heather ONeal. And this is the Milk Minute. We’re midwives and lactation professionals bringing you the most up-to-date evidence for all things lactation. So you can feel more confident about feeding your baby, body positivity, relationships and mental health. Plus, we laugh a little or a lot along the way. So join us for another episode.

Hey there, Heather here, and we have another amazing episode for you today. We were so thankful to get to interview Jeff Culpepper, a family court judge in West Virginia. He gave us some helpful tips for how to navigate custody issues when you’re still breastfeeding. It’s a heavy one, but it’s really important. Even just to understand how the system operates in these situations.

After the conversation, we’re going to send you off on a high note with an Award from the Alcove. So please stick around for that and to kick things off as we do now, with every episode, we’re going to answer a listener question. Let’s get to it.

Our question this week is from Susie. Susie asks how to clean a nipple wound after a crack or a bite. Ouch! First of all, props to anybody that continues breastfeeding through a nipple injury. I have been that person and I actually still have some bruising and scarring on my nipples from that. Because that was before I knew what the hell I was doing with breastfeeding and it happens.

So how to clean it… first of all, clean it immediately, wash your hands anytime you’re going on or around your breasts. Yeah, I like to clean with a cotton ball cause it’s soft. It’s not like a washcloth because that fucking hurts. Yeah. So, moist wound healing we’ve found is better than dry wound healing.

So it used to be that we recommended that people walked around without a shirt on for like days until it’s better. But actually now we’re seeing that that tissue heals better when it’s moist. So if you can afford it, I always recommend buying some silverettes, which are basically like little silver, actual silver, sombreros for your nipple. They are adorable. And then get your provider to order you some all-purpose nipple ointment with Motrin powder in it.

And it’s okay for baby to get some of that. It’s fine. You just put it on after your baby feeds and by the time your baby feeds again, most of it’s been absorbed into your skin. Yeah. And usually you don’t have to clean with soap. I usually just like clean with some warm water or some breast, or even some breast milk.

But if you really feel like you’re courting an infection and you want to use a little soap, just use a really simple unscented soap, no additives, no chemicals or anything like that. Cause babies going to be putting their mouth on that. And you also mentioned tips about soothing the nipples. So those silverettes are going to be cold and it’s going to feel like fucking heaven. You can also use the cold gel pads too. Yeah. The cooling Medela gel pads are nice. Yeah. Or anything cold, you know, we don’t usually recommend icing your breasts in general because it can lower your supply, but just a little bit of coolness on your nipple feels like a godsend. Yeah, it does. So, Susie, I hope that helps you out. And let’s get into today’s episode.

Let’s take a quick break to thank our sponsor, Liquid IV. Liquid IV makes your water work harder for you. It’s a great option for parents that are trying to stay hydrated during lactation, without having a ton of sugar in a sports drink. They’re natural, powdered drink mixes actually taste good, too. And contain five essential vitamins.

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Well first, good morning, Maureen and Heather. And thank you for having me on. I’m James Jeffrey Culpepper. I go by Jeff. I was a sitting family court judge in Monongalia County for about 12 years. I’ve been a senior status family court judge since that time. And I’m also a practicing attorney and a mediator.

And actually my mediation work has really grown a lot. Well, I personally can see why your mediation practice would grow. I had the privilege of being in a mediation with you, and luckily you were on my side of the table, which was very nice. Mediations are the worst day of your life. And it’s very nice to have somebody that knows what they’re doing and has a kind heart.

And so I’m very happy that other people get to experience that with you. Well, I’m really pleased to hear you say that, but I can tell you a day in court is worse than a day in mediation. I bet. Well, I’m really pleased to hear that you’ve kind of seen this from a judge’s perspective and a lawyer’s perspective because a lot of our listeners, they actually sent us some questions we’re gonna mix in. And a lot of them were about judges perspectives versus lawyers and blah, blah, blah. So, I’m super excited to hear what you have to say about it. Great.

Yeah, actually, we had so many questions that we didn’t even have to really think that hard because they really covered everything and we’ve been getting so many questions in the Facebook group about this particular topic, breastfeeding and custody cases and how they are ruled because of COVID also more people are losing their jobs. So they’re not as comfortable separating from a partner that they want to separate from. And also breastfeeding is being talked about as a preventative for COVID because of the antibodies. So people are not wanting to stop breastfeeding.

So, let’s get into some of these listener questions if you don’t mind. Great. Not at all. In fact, I got the questions you sent and I was pretty impressed with how they get right to the point. Your questioners are good and your listeners are obviously a pretty astute bunch of people. So that’s good.

They are. We love them. We have a bunch of smarties in there. So, one listener said, as a family court judge, were you aware of how custody arrangements can impact breastfeeding? And are you aware of how stressful it can be for a breastfeeding mother to go through that? Well, the short answer to the question is right where it says, were you aware of how custody arrangements can impact breastfeeding? The answer is no. However, if you asked it and said, were you aware of how breastfeeding can affect custody arrangements? I would say yes.

So, I wasn’t entirely sure how that question was intended. Until I started listening to your show, frankly, I had no idea that, when you are setting up a custody arrangement, how that could impact mom’s production. And I also, I have to confess, without sounding too sexist, men tend to be kind of clods when it comes to this issue, I think, and have very little understanding or sensitivity to it. We seem to think that, you know, it’s like, the baby’s hungry, you take out your boob and the baby eats. It’s maybe not quite that simple.

I mean, honestly, a lot of mothers really don’t realize it’s not that simple until they try to breastfeed, too. You know? I mean, we don’t grow up seeing it that much or hearing about it that much. And then all of a sudden we’re like, Oh shit, we have a baby. And we have to feed it.

The other thing that I wanted to know, and the listeners wanted to know as well is, when you’re in law school or when you graduate and you begin working as a family court judge, is there any continuing education for breastfeeding as it relates to custody arrangements or is this kind of you’re winging it?

Well, first of all, sitting family court judges and senior status family court judges, like I am now, are required to participate in 30 hours of continuing legal education specifically addressed at domestic issues and then senior status, it’s a slightly less number. I think it’s 24, maybe that we’re required to do. And usually they have a family court judicial conference, twice a year, where we go and learn about a myriad of subjects. You know, psychological issues involved, a lot of it’s focused on domestic violence and understanding the nuances of that and the complexities of that, and the subtle nature of domestic violence and how to spot it and how to be aware of it and that kind of thing.

But I can honestly tell you in 23 years of attending those on a twice a year basis, I don’t believe that I can recall, anyway, ever any training relating to breastfeeding, not once. Now, I could be wrong. I have not attended every single one. I’ve attended most, but I cannot recall anything ever specifically geared towards understanding breastfeeding. It does come up. It comes up frequently because it’s a challenge that family court judges frequently face and how they deal with it. But as far as from the woman’s biological and psychological standpoint, I don’t recall any training on that at all.

That’s interesting. A couple of thoughts, first of all, there’s a gap. Like we’ve identified a gap just by starting this conversation, which is fantastic because we could probably whip up a very basic training for like a one-hour CVU today. Like it’s not that complicated, it’s really not. But the other thought I had is that we are feeling that from our listeners, that there isn’t a standard for breastfeeding in court because the stories that they’ve shared have been all over the map. It’s crazy. Yeah. My judge knew about this and my kid was this old and whatever. And, and you know, most of the people we hear from those say, my judge did not consider that at all. Period.

Right. Well, bear in mind, family court judges have very, very wide discretion when it comes to establishing visitation and parenting parameters. So, their goal is to, and I think it’s important if we’re going to be talking about breastfeeding and all of this in the context of the family court, it’s important to remember kind of the viewpoint that the family court judge is coming at this problem from. And by that, I mean, you know, they’ve got a docket of 30 cases that they’ve got to hear today. Each one’s got 20 to 30 minutes time and they are looking for answers and they want to come up with a solution that they can sleep with, that has reasonably protected the child, because that’s always their number one goal, and they want to try to be fair to the parents.

So that’s their primary objective to move this case, to feel like they have protected the child, the best of their ability, and to be fair to both of the parents. And so they’re not coming at it from the angle of, okay, this mother is breastfeeding, so I need to accommodate what’s going on in her body, and her mind and in her life.

I’m here to stamp out an order, try to show some level of fairness to the father who’s pursuing time with this child and to the extent I can accommodate those other kind of collateral issues. And I kind of think the breastfeeding is seen as somewhat of a collateral issue as opposed to the central issue. So that’s kind of how they’re looking at it. You’re coming in as the breastfeeding mother, and that’s probably a top priority or one of the top priorities in your mind as you go in there. Whereas the judge is looking at it as a lesser issue. Unfortunately, I mean, that’s the reality. You didn’t bring me on here to blow smoke. So, that’s the reality.

No, I really appreciate that. And you know, I hear you say, reasonable… that word just comes up so often in our legal system. And every time I hear it, I’m like what a subjective term, what is reasonable? Right, right, right. And again, so when you said, you know, you hear people repeat or describe their experience in family court as being wildly different in front of one judge versus the other judge. And that’s because they have such wide discretion. And I know there are some judges who say, Hey, you know, newborn baby, mom can pump 50/50. You know, just stamp it out.

Whereas other family court judges, and I’d like to think I was a little more sensitive to that than some, I think a lot of the sensitivity to the breastfeeding by the family court judge is going to hinge on the age of the child. The closer to newborn, I think a judge is going to be more inclined to make accommodations for the breastfeeding and as the child gets older, make less accommodations for that. I can tell you, I had a case several years ago, the mother was breastfeeding, the child was two and a half years old, almost approaching three years old. And I know there is a kind of a segment out there that believes that breastfeeding till five years old is good nutrition and it’s important and whatever, but personally at the time I felt like two and a half was past where it was really necessary.

I mean, I don’t know, what do you guys consider as sort of the norm and what’s going beyond the norm. Yeah. Well, we like to go with the WHO recommendations, which they recommend breastfeeding up until two and beyond. So, you know, we encourage parents to breastfeed as long as it is mutually beneficial for them and their child. And lots of research shows us that human milk is going to be beneficial for that toddler, basically, as long as you give it to them. But you know, a lot of our work is like, Hey, well, if you don’t want to do this anymore, you don’t have to, at that age. We kind of see like the first year is that golden year. We really want there to be breast milk the first six months. We want that to be the exclusive food, if possible and beyond that is great. And there are these wonderful health benefits, both for the mother and child that we have lots of research about kind of the longer you breastfeed, the more we see those accumulate, but necessary is kind of a hard thing for us to define. Do you know what I mean?

And you know, the thought that comes up for me is you mentioned domestic violence and how safety is the number one priority for the child, and the people involved. There are some instances where either parent can use breastfeeding in a violent way, domestically. So, partners who are not happy with the breastfeeding parent can sabotage the breastfeeding relationship on purpose. So like, giving bottles, refusing to use breast milk during their custody time and just purposefully taking that out of the equation. Right. You know, which obviously is bad. But then, you know, there are other times that I have heard people say, as long as you’re breastfeeding, the judge won’t take your kid away from you. So you just keep breastfeeding them as long as humanly possible, which is also not good. It’s not true. It’s not true.

You know, that brings up another listener question that I recall where somebody had asked, like, do they have any recourse if their partner, or not partner anymore, right? If the parent, the other parent of their child kind of purposely goes against their wishes to feed formula when the child’s not in their custody, like, is that something that you agree upon in court? Like, okay, the child’s breastfeeding, it’s going to keep being breastfed or? I don’t know… that was just such an interesting question, like, Whoa, what if you get your child back after two days and you realize all that pumped milk you sent got thrown in the trash?

Well, the answer to that, to some extent lies in where you are in the process with family court. Okay. So, for example, if there’s, you know, you’ve been to court one time and all you have is an initial temporary order. Cause that’s the way it works. You have your, at least in West Virginia, your first hearing is your initial hearing and you typically get a temporary order. And that’s sort of, I think, judges view that as kind of triage. It’s a way to stabilize the situation, set down some parameters and to establish a schedule, to be in effect while the case is pending. Okay? So, the case can be pending, and it can be pending for a while and it gets pretty annoying how long it can pend for, but your initial hearing, you get a temporary order.

And then things happen, you know, negotiations and mediation and settlement conferences. And then you ultimately get to a final hearing. So, my suggestion there, first of all, if you have it in your order, let’s say you go to court your very first time… I think you want to push, if you are a breastfeeding mother, and that’s a concern that the other side might be trying to sabotage, or is not going to follow that… I think you want it in the order that we are doing breastfeeding, we’re committed to breastfeeding, that if mom has to pump and provide breast milk, it is to be fed to the child during dad’s parenting time. And then if you learn and you can show by some type of proof that that’s not happening at dad’s house, then you file a petition for contempt. And so, there is recourse there. And I think a family court judge will enforce that and say, look, you know, this is in the order. If you’re not going to do it, then I’ll reduce your parenting time. So what’s important is you want it in the order if you want to be able to enforce it.

And I would like to add, not only that they put that language in, but also put language in about how to handle the breast milk, right? Because pumped breast milk is a little bit different. Like maybe we could even have an info card that we give away as a freebie. That would be so great. Just like a quick here’s the CDC guidelines for how you handle this food. Like don’t microwave it, like that, you know, just to make sure because, you know, honestly, my husband, God bless him, he is wonderful, but he’s left breast milk out before and ruined it by accident. With the best intentions. So I can’t even imagine living in fear that the one day you mess it up, you’re going to be held in contempt of court, you know, let’s help them, help themselves.

Well, no, that’s an excellent point that you’re making. And it leads me to one of the points that I really would like to stress today. And that is that I think, to the extent that you would like the other parent and the court to be sensitive to the breastfeeding issues that you have, remember the family court judge looks at each case as a problem that they’re trying to fix. Okay? They’ve got two people who are at odds on how they’re going to do parenting and the family court is looking at, okay, what am I going to do that’s going to work here?

So, if you go into the case with the mindset of rather than presenting this breastfeeding as a roadblock to parenting time and visitation. I’m going to present this judge with some potential solutions. Here’s how this can work, judge. Because number one, it shows that you recognize that the other parent has a right to some time with the child and it shows the court that you’re being reasonable. I’ve seen many times young mothers, first time mothers, who, in my humble opinion, may have been acting a little bit over protective and they are taking the position that, you know, dad’s time should be minimal or highly restricted because I’m breastfeeding, and because the baby’s so young.

And the judges are kind of sensitive to parents, who are, they think are being unreasonable or who are purposely trying to throw up roadblocks. So, I think you want to go into court… if you’re going to go in and have to have the judge make the decision, you want to come across as a reasonable mother. I recognize dad has time. I want dad to establish a bond with this child, and here’s some solutions. I’m breastfeeding, and I want to present some solutions and some options so that I can do the breastfeeding that I need to do. And dad can get plenty of time to bond with the child. And the more solutions you present to the judge, optional solutions, number one, the better chances the judge is going to pick one of them. And that will thereby kind of embed the solutions you needed to accommodate your breastfeeding issues.

Because dads are just not, again, men are kind of clods and we don’t always see the need, the value, the necessity of breastfeeding, and they don’t have the same kind of appreciation for it that you do, that women who are breastfeeding do. So, I’d say you want to, you want to try as much as possible to present some options to the judge that will work that present this dad with plenty of options to spend time with the child, instead of… here’s why, here’s all these good reasons why dad shouldn’t be able to see this child because I’m breastfeeding, because the baby is really young and the judge is going to give him some time, either way. So, if you present the judge with, you know, here’s some days that I can do it because I’m not working those days, that allows me an opportunity to do the pumping I have to do, you know, so if you’re giving options and solutions to the judge, you’re making it a lot easier on the judge to go your way.

That’s a great thing. Yeah, I love that. I know. It makes so much sense and really, the reality is in these court cases, it doesn’t matter how much you hate your ex or how you feel about, you know, this other person you’re in mediation with. That judge probably doesn’t care because you know, they, like you said, they just need to get it done. Yeah. Well, everybody who comes in front of them, everybody that comes in front of them hate each other, typically, you know, so that’s nothing new to them. They’ve seen that a million times. I get it and yeah, totally makes sense. Like if you’re going to the judge with a problem, present three of your own solutions and you’re more likely to get one of them.

That makes you look more reasonable, it shows that you have respect for the fact that dad has some time that he’s entitled to, and I think it just presents you in a better light. And then I want to say something else that, that’s, if you’re at the point, if the judge is making the decision. There are plenty of opportunities prior to getting to that point where the judge is making the decision where you can take a affirmative and proactive role in trying to work with dad, because ideally you want dad to have some sensitivity to the breastfeeding issue.

That’s really ultimately the goal. You want him to understand that it’s necessary, that it’s important, that it’s serving a valuable function for this baby. And presumably dad loves the baby too, and wants the best for the baby. So, you know, the sooner that you open up communications with dad and try to get him to understand the breastfeeding that you’re doing and the kinds of issues that are involved with breastfeeding, the better chance that you’re going to walk into court with an agreement. That’s the judge’s favorite thing is if you walk into the court and say, we’ve got an agreement, and so judge, you don’t have to make this decision. We’ve already made it. The two parents of this child have made this decision together.

The judge is going to love that better than anything. So, you know, consider informally communicating with the other side, trying to, and I recognize that takes a lot of patience and a lot of restraint and a lot of maturity that sometimes young parents don’t have yet. They don’t have the maturity to put aside, that son of a bitch cheated on me, and he’s not going to see this baby. Well, that’s a losing theory. He cheated on me and he’s not going to see this baby is not going to fly in family court. So, you want to put that aside, be the adult, put your child first, recognize your child has a right to see their dad and the dad has a right to see the child.

So, let’s start talking about that before we even get to the legal process about how we can start establishing your bond, dad, and also take into consideration the fact that I’m breastfeeding right now, and here’s some of the issues I’m facing and I’m willing to work with you. And if you ultimately end up in court, you’re already looking like the more reasonable adult parent, if you have made those efforts and that’s informally.

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Now, if that doesn’t work, you could even try mediation prior to going to court where there’s a neutral third party who kind of serves as a go-between to help you all work out some of those details. And if that doesn’t work, then the last resort is the judge makes the decision, but I’m a big believer in, you know, you’re the mom and dad, shouldn’t you be making the decisions for this child rather than some total stranger who doesn’t and has never seen your child; doesn’t know you, doesn’t know your child. So, it just makes sense for the parents to be making these decisions. So, I encourage young mothers and young fathers to start talking about these issues before we get into court.

You know, if it gets to the point where nobody is making this decision with breastfeeding and they just can’t come to an agreement in mediation. Has there ever been a time where they bring a lactation consultant and IBCLC, who’s board certified in as an expert or is that, I mean, I know it’s not a murder trial and we don’t need to like call witnesses like that or anything, but does that happen? Is that an option? Cause I was asked recently to come, yeah, me too. And I was like, well I can’t, but also is that a thing we do?

Well, first of all, sure, first of all, if you were in the court setting, there’s no reason why a participant, presumably a mother or a father I suppose, could bring in a breastfeeding consultant. There’s no reason why that couldn’t happen. I have never in 25 years seen it, but I don’t see why that couldn’t be. Unfortunately, I think a lot of, I think there are more women family court judges in the state than there are men. So, you would kind of expect that to mean there would be a greater level of sensitivity to it, but that’s not been my observation. They, you know, they’re kind of like, okay, you’re breastfeeding, so pump, here’s his visitation schedule, next case.

You know, a lot of the stuff that we’ve talked about so far, I think mostly applies to like daytime, you know, but there’s a lot of nighttime issues that breastfeeding parents have. So, a lot of breastfeeding parents will co-sleep and nurse, their baby who wakes up every two hours.

So, for example, if that baby was going to do three or four overnights in a row with dad, mom is now getting up to pump, which is a whole situation, in the middle of the night. There’s sterilization, and there’s, you know, actually sitting up and turning the light on and making sure that you’re then putting the milk away in a good storing option. And if you’re doing that two and three times a night, which you have to do in order to keep your supply up, you’re now not sleeping, really. Like you can sleep and nurse at the same time.

Or you can kind of half wake up, but it just doesn’t require like going downstairs and getting your parts and washing them. It’s much simpler even if you’re not co-sleeping with your child. Right. And research has shown over and over again, that nursing in the nighttime actually has a huge effect on your milk supply overall. And I just had a lot of questions from listeners about how judges look at overnights with young babies. And what age is it that the baby is like able to go spend the night with dad? You know, is that a thing for judges? Is there an algorithm that’s like, if you’re maybe a six months old, you can go this many nights, or?

Well, first of all, there’s no black letter law on that. So, in other words, there’s no specific six months or three months or two months that says the child may now go to spend nights with dad. If that falls within the very wide discretion of the family court judge. So, it will differ from county to county and from judge to judge. I do believe that the younger the child, the more in tune with breastfeeding a judge will be inclined to be.

And as the child grows older, the less the judge is going to want to make special accommodations for breastfeeding. So, I guess I’d call it like a sliding scale in the overnight issue, but I can tell you, I’ve heard of some judges, you know, a child as young as, two, three weeks being awarded overnights with dad.

That breaks my heart. Like that’s actually triggering me a little bit. Yeah. Now there are other judges who are more sensitive to that and might say, okay, we’re going to do say a month of dad coming over for maybe three times a week to see the child at mom’s house. Assuming there’s no domestic violence issues or, you know, it’s not such a hostile environment where they can’t.

Sit in the same room together, but dad comes over a couple nights a week and then dad gets, say three evenings a week that are for three or four hours in duration where he can feed breast milk from a bottle. And they kind of try to do a kind of a slow transition towards that. So again, it’s gonna depend on the judge you get, which is another value of mediating because oftentimes the local mediators have a pretty good idea on the kind of predispositions of their local judge. And so you can get a sense of that.

And it sounds to me like a mediator also has more time to spend with you. And more time to listen to your individual needs. As much time you have money. Right, and I get it, like it probably also just depends on what the day was like for the judge. Just like the doctors we work with where we’re like, oh, it was one of those days. We’re just going to back away here and not expect any special treatment.

Well, and you’ll find that, in mediation, a participant, a parent will have a much greater opportunity to speak what their concerns are. And the other side is going to hear those concerns and possibly develop some understanding of them. When you’re in court, you know, it’s a very fast moving process and you almost never get to speak. So, your opportunity to speak is very limited when you’re in court. Whereas in mediation, or in one-on-one negotiations, if people are comfortable doing that, you’re going to at least have an opportunity to say those things and be heard. Whereas in court, you frequently, you know, the judge has heard enough, you shut up now.

Quick follow-up cause I’ve never been to family court. Are there like free mediation things you can get through the state or if you’re like low income or is it all just, if you have the money, you can do it? That’s a good question. I can tell you if a case has already been filed, and it’s before the court and someone requests mediation and the court then orders mediation. The court will use a sliding scale to determine what the cost is. Okay? So, for example, if you qualify, if you’re eligible, if you’re below a certain income level, you can qualify and the Supreme court actually pays for the cost of the mediator.

It’s a sliding scale, first of all. So, the incomes of the parties determines how much the mediator gets paid. And then the comparative incomes determines the percentage of what the mediator gets paid. In other words, mom makes 10 bucks an hour. Dad makes 40 bucks an hour. So, that’s a four to one ratio. So, if you go to court, the judge is going to use those combined incomes, determined from the sliding scale, what the mediator will get paid, and then dad’s going to pay 80% of it and mom’s going to pay 20% of it.

Now that’s once you have gotten into the legal realm you’ve already gotten before the court and the judge has ordered mediation. That’s the only way you’re going to get that kind of financial support from the court. What I encourage people to do is why not open up communications prior, just between the two of you? Instead of, you’re never going to see this baby, let’s talk about how you can start developing a bond with this baby and still be able to breastfeed and it can work for both of us. That’s the first conversation I would recommend you have with the other parent.

And again, assuming that there’s no violence issue, there’s not a major alcohol or drug issue. You know, not a safety issue or the child doesn’t have a health problem, you know, a big health concern. Cause I can tell you if a child has a heart problem or other different ailments that newborns sometimes have. The judge is definitely going to take that into consideration. But if you have a healthy child, I encourage you to open up a conversation we’re the mom and dad of this child let’s open up a conversation if we can do that peacefully and rationally and civilly, let’s do that so that you and frequently what happens is it’s dad’s family. Dad’s mom. Dad’s, you know, grandma who is saying, I want that baby over here. And so, you know, a lot of I’ve seen that many, many times where it’s like, dad is not really the one driving the train. It’s his mom driving the train. She wants to see that baby.

We see that all that time. Yes, because he doesn’t actually want to get up in the middle of the night and feed breast milk because if he had already been doing that they might not be in this situation. But, I think, so knowing that a young mom should, you know, appreciate that say, okay, I get it… grandma wants to see the baby too. That’s fine. That’s good. Let’s talk about a way that grandma can see the baby and you can see the baby and you can develop a bond, but we can do it in such a way that I’m able to successfully breastfeed, also. That’s a good conversation if possible, to try to initiate with.

If that doesn’t work, then pre-filing, before a case is ever filed, you could seek out a mediator, talk to the other parent and say, Hey, why don’t we get in front of a mediator and try to work on this. If we can’t agree to it on our own, maybe a third party will help us work on this. Now in that scenario, the court’s not involved yet. So the sliding scale is not involved yet. So the Supreme court paying for it does not in effect yet. So the answer there is, yeah, you got to have the money to pay the mediator. But, you know, some mediators, myself included, will take that into consideration. And I have, on numerous occasions, gone ahead and applied the sliding scale, even though I wasn’t obligated to do so.

I think if you seek it out, you may find that mediator who’s willing to do it at a reduced or possibly even a non-cost for people who are pre-litigation, nothing has been filed yet. They’ve just had this baby. What you frequently see is people who are unmarried. They’re very young. They’re not quite sure if they’re going to be together or not. They’ve been together and apart, and together and apart, together and apart several times, so it’s kind of in a limbo state and somebody needs to be the adult and step up and say, look, regardless of whether our relationship works out, we’ve got this baby together. We’re going to be working with each other for the next, forever. Because you think at 18, you’re done raising your kids. I can tell you that is not the case. You’re still dealing with parenting until you die. And so, let’s work on, you know, kind of working something out here, whether we’re together or not. And if, if you take that approach, I think the other side is going to appreciate that. That, Hey, she recognizes that I have a right to see this child and I want to see this child and maybe that will encourage him to be a little more sensitive and accommodating to her breastfeeding issues.

And of course, that’s like the ideal situation. Right? You know, ideally everybody is able to communicate and, you know, another listener that we had made a really good point. So you get to the point where you’re going to court and you know, nothing has worked. No mediation has worked up until that point because his actions prenatally, so when she’s still pregnant, you know, maybe he didn’t hit her, but if he has been unsupportive completely of the pregnancy, maybe wanted her to get an abortion. Maybe, you know, she chose to keep it and he’s not happy about it. Do any of those actions by him, prenatally, are those taken into account with custody situations? And now he’s going to be breastfeeding dad of the year and she knows he’s lying.

Right. I do believe that, to some extent, prenatal behavior has an impact on a judge. It depends on what that prenatal behavior is. The original request that we should have an abortion is not going to, I don’t believe, is going to impact a judge to say, well, then you should have less time with this child because you originally wanted to abort. The fact that dad didn’t attend any of the doctor’s appointments, that dad didn’t attend any of the ultrasounds, that dad really didn’t show much interest and provide much, you know, because the expenses begin before the child is born and the fact that dad didn’t provide any financial support prior to the birth. I don’t know that those are going to have a large impact on what the judge orders going forward. You mean, barring like safety issues.

Barring safety issues. Domestic violence will definitely catch the judge’s ear. A drug issue, and I’m not talking about marijuana. Most judges in the state really don’t care about marijuana. But when it comes to, you know, opiates and other hard drugs, or to the point where they, you know, need rehab or whatever, they definitely will pay attention to that. So, you know, dad just came out of rehab and I think he’s relapsed. That’s going to catch the judge’s ear. Dad pushed me down the stairs, and I’ve heard that before, dad pushed me down the stairs while I was eight months pregnant. That’ll catch the judges ear. If that kind of stuff is happening or was happening prenatal.

But dad was, you know, totally uninterested. I was like, I thought my water was going to break and he decided to go hunting instead. You know, I don’t know that that is the kind of thing that’s going to have a significant impact on a judge’s ultimate decision on custody. If dad was just uninterested. Now, I want to say one other thing in that is that frequently the responses when you hear moms saying dad wasn’t a participant, dad wasn’t involved, dad didn’t go to the ultrasounds, dad didn’t do these various things. The response that I frequently have heard from dad is, well, she wouldn’t let me, she didn’t tell me when the appointment was. She didn’t tell me any of this stuff. She didn’t involve me in it.

And usually the truth is somewhere in between there a little bit. So that’s why I’m encouraging either expectant mothers or new mothers to make an effort to get dad involved to the best you can, you know, invite him to be a part of it. Instead of thinking of reasons why he should be pushed out of the picture; think of reasons why he should be pulled into the picture and get him interested and get him involved. And the more you do that, number one, you’re going to look like the more reasonable parent if you end up in court. Number two, you’re going to enhance the chances that he will become a good dad and get involved in that click will happen with him. And you will reduce the conflict.

And you know, I just want to acknowledge to our listeners that the message of what you’ve been asking them to do in this whole episode is probably the hardest thing we could ask. Sure it is. It’s going to be astronomically easier to print out 10 pages of research on why breastfeeding is superior and, you know, get your information in and really just line it all up. But it is so much harder to put all that hurt you feel aside and acknowledge that maybe, you should put some effort into, including that person who has hurt you so deeply into your child’s life.

Well, that, and also you’re not going to win because nobody wins. That’s right. There’s no winner. There’s no winner. Somebody is always going to lose something like you’re going through grief already. And then, I just want everybody to know, having been to court many times, unfortunately, despite my best efforts, it is a lose-lose situation. So, if you have any control over it going in, that’s the time before you go in there, control the situation, get as much, get as many wins as you possibly can before you enter. 

And also prioritize what your objectives are. There’s usually a long list of things that I want out of this. You need to prioritize those and push the hardest for the top priority things and recognizing that you may have to let go of some of the lower priority objectives that you have. I am particularly sensitive to what you just said, that what I was doing was asking them to do probably the hardest thing. And I know that’s true. To put their own feelings aside and try to be open to conversation and negotiation with that other parent. But, I also know the goal of your whole program here is to raise healthy kids. That’s really, is that not the ultimate goal?

Yes! Healthy kids and healthy parents. Right, right. But I think the healthy kid is probably your number one goal, because you want them to benefit from the breast milk and number two, then have some appreciation for what mom’s going through in providing that breast milk. And so, to the extent that you can put your own feelings out of it. And to the extent that you can open up communications and create some level of cooperation with the dad that has an immediate long-term benefit for the child.

So, you know, there are lots of ways to benefit your child. One of which is breast milk. Another one, which is huge is what is the relationship that this kid is observing between their mom and dad, and how’s that affect them for the next 30 years? Are they going to be in counseling at age 40 because of what they saw at age three?

Exactly. And, you know, I will have to say it has taken me a long time to get to this point. But the one thing that I will say about my ex is that my son still invites me over to his dad’s house. You know, like mommy, you should come over sometime. Daddy makes great food, like, come on over. You’d love it. It’s so peaceful there. I mean, Heidi, our toddler is great, but like daddy’s house is so quiet, you could get all kinds of work done. And so that’s just a Testament to that. The fact that, yeah, I wanted to absolutely strangle him during the process, but we both decided like on our priority list, the one at the very top was making sure that our kid was not affected by any of it, so. Right. Isn’t there some statistic that something like 80 or 90% of all kids of separated parents, their most, what they really want to see is their mom and dad back together again? Yeah. Isn’t that what they all kind of fantasize about or dream about?

I think I have seen something about that before, and, you know, it’s totally reasonable. Yeah, why not? And I think being able to show your kids that at the very least you can sit in the same room together. Yeah. Can I just ask one final question? And then we’ll let you get on with your day, but while I have you here… so there’s been a lot of talk about how, you know, back in the day, quote, unquote. Unmarked time, the courts used to favor the moms when it came to custody arrangements. Like now, in West Virginia, I hear this a lot… the courts are very heavily, dad favored. Or this particular judge hates dads and this particular judge loves dads. But overall, the message that we get is that moms are out. And it’s it used to be like, Oh yeah, of course the kid’s going to go with the mom, like 1950s.

But do you think that the presence of formula being available has helped courts make that more of a 50/50 arrangement? I would have to say probably. That has evolved on several fronts. One of which is what you just asked is the fact that there’s, you know, pretty high quality formulas out there that allow for more options for a judge who’s looking to give dad more time. So, I would say yes, that has impacted it. But you also have to look at it in terms of the evolution of the law prior to the year 2000, you had the custody visitation model where the primary caretaker got custody. The non-custodial parent got typically every other weekend, almost a rubber stamp schedule every other weekend, a couple of weeks in the summer and alternating holidays and the custodial parent made all the decisions.

Primary, you know, significant decisions, what school they’re going to go to, where are you going to live and all that kind of stuff. Then in 2000, we evolved to this concept, in the law of the parenting plan. It wasn’t a custody visitation order it was called a parenting plan. And under that concept, they took, they separated decision-making authority and custodial allocation.

They separated those. So that now in the vast majority of cases, both parents have shared, joint, significant decision-making, which was a huge change in the law because it meant that if you want to change your child’s school, you need the agreement of the other parent. You want to sign the child up for T-ball, you need the other parent’s agreement.

So that is a new evolution that happened right around 2000, the parenting plan. And at that point, the family court judge, their mandate was to try to make the custodial allocation somewhat, a mirror of the level of care-taking performed by each parent prior to the separation. So you had a dad who was there 10% of the time, mom was there doing 90% of the care-taking.

Then the judge was supposed to come up with a parenting plan that was roughly similar to that. Mom had 90% of the custodial time, dad had about 10% of the time that law then further changed in June of 2018, where the family court judges are no longer required to try to make the parenting plan mirror the caretaking responsibilities performed prior to separation. So, maybe dad was there 10% of the time, mom was there 90% of the time. And the judge says, okay, 50/50, because they’re no longer required to make the parenting plan and the division of custodial responsibilities mirror what had gone on before. Now, the reality is the practical reality is judges still, I think, lean towards trying to do that, but they are not required to do that.

So they basically have free reign and are trying to do just what’s best for the kid. What has not happened yet is what they call a presumption of 50/50. I think it may be coming down the pike. There has been a push for that. There’s a lot of mad dad groups out there that have pushed for that. It hasn’t happened yet though. So, by that, what I mean is people walk into court, until the judge has heard a word out of anybody’s mouth, he assumes this is 50/50. Hasn’t happened yet, but even if that did happen, then, you know, you can present evidence as to why that’s not in the child’s best interest.

My own humble opinion is that there are still vestiges of somewhat favoring moms. I know women look at that, like, you know, they’re kind of retreating and they feel like it’s an attack on them, but I still believe, even though the law says you will do custody, not withstanding the gender of the parents. I feel like there’s still some vestiges of somewhat of a favor towards the mom.

But it’s not a legal argument you can make. Hey, I’m the mom, I should have the child more. That’s that’s going to go nowhere. And it is different from county to county. And so, you know, it’s a wise idea to learn about the judge that you would be in front of before you’re in front them.

That’s a good piece of advice. I know a lot of our listeners, you know, are in different states and we tried to make it clear, like, look, the person we’re interviewing today is from West Virginia, laws vary from state to state. But what doesn’t change is that it all depends on that judge. Yeah. So, you know, asking around, trying to figure out how this judge typically decides cases. Trying to present your solutions to the judge in ways that they’re gonna understand and favor, that makes sense. And in the same light, like going on Facebook and asking people what their experiences were, is not going to mean anything. It’s probably just going to stress you out.

Every case is different. Yes. Yeah, that’s absolutely true, but I guess I want to go back to what I said in the beginning and stress, if you end up in front of a court and a court is making the decision on how custody is going to be shared and you are breastfeeding and that’s an obstacle to a more expansive custody schedule… the judge views that as a problem, it’s a challenge. How am I going to solve it? So, the more you come across as the reasonable parent who is trying to encourage a relationship with dad, who is trying to facilitate a relationship with dad, and here’s some solutions how I can help that to happen that also allow me to do my breastfeeding, is going to make it easier for that judge to say, this is the reasonable parent. These are good ideas. I’m going to do what she said. 

Thank you so much. Yeah. I love it. We’re going to take that obstacle and just flip it around into a solution. Exactly. Cause that’s what they’re looking for is a solution. Every case is a challenge to them, so they want to solve it. Thank you. I mean, even though I’ve been through it, I just learned a lot because people ask us questions all the time about it, and we are always afraid to answer because we just don’t have all of that information. Right, like I have no idea and I don’t want to tell you something that you’re going to say in court that’s going to screw you over.

I know that. Judges are always looking for what’s the answer, what’s the best answer? How can I protect this kid? How can I give dad some time, allow him to bond and recognize his rights, but at the same time, recognize, and show some sympathy and understanding and empathy for what mom’s going through. And I do believe that most judges try hard to be fair.

Thank you so much. Yeah, I, I enjoyed this so much. I feel like I learned a lot, especially since I have no experience with this. And I’m so happy to learn it because it seriously, we get questions about this all of the time. Oh, absolutely. I’m glad to glad to be a part of it. Yeah, absolutely. I’m so glad to help. We’ll see you. Bye. Bye.

Any closing thoughts about this? I mean, I have so many. I mean, I think really, first of all, we acknowledge that this is such an impossible situation. It doesn’t matter what happened to get you to the point where you’re considering family court, but it sucks. And that I, once again, acknowledge that Jeff’s advice is the hardest shit you can do, but let’s just summarize it.

You know, his advice was that you try your hardest to fix problems before you get there. Even if you know, that’s not going to work, you have to make a reasonable effort for that. Because when you go to temporary hearing and you get your temporary order, understand that that temporary order could be in place for a year. Right. Before you actually go to court.

So it’s very important that you have these conversations to begin with. Right, when it’s safe, I’m going to just preface this with, this is a safe situation and not a situation where you are in danger, putting yourself or your child in danger doing this. So his recommendation is going to be that we have lots of conversations with that other party personally or in mediation, and try our hardest to create solutions before it gets to court. And then once we do go to court that everything that you’re presenting that could possibly be a barrier to a reasonable custody agreement that you try to create solutions and present this to the judge and that you present yourself as a very reasonable party.

Because you probably are, you know, like even though you’ve had emotional outbursts because you’re a human fucking being, even though you are so wounded that you want to wound others. Which is it doesn’t make you a bad person. It’s a natural instinct. Like have you ever taken a bear cub away from a mama bear? Okay. You’re that mama bear and that feeling inside of you doesn’t make you bad. It just means that in order to get through this hurdle of court, you’re going to have to kind of squash your natural instinct for just a little bit, and you’re going to have to eat crow and just get through it so you can get what you need to get in place a good temporary order.

And if that doesn’t work, then, Oh my God, like you have to go to court and, you know, let us know, you know, maybe we’ll put together a resource for everybody, for reseaonable requests. Yeah.  And I really liked what you mentioned before, where, you know, if we have some easy guidelines that you can buy on a magnet and you can say, Hey, like, you know, I got these for that motherfucker over there who were going to call something nice in court, you know, because I want him to breastfeed my, you know, to feed breast milk to my child. I want him to do it well, and I want to make it easy for him, even though inside you’re dying saying that.

Yeah. I personally would like to close by saying that there is another side to this. Yeah. You know, you will move through it. You can’t get away from it. You can’t get around it. You absolutely have to go straight through it and you will be hurt. Like you’re not coming out of this unscathed. So, you know, nobody comes out of it unscathed. No, but it doesn’t matter who is the party that was wronged or who is the one who did something wrong?

Y’all are leaving court broken and it sucks. It absolutely sucks, but go straight through it and don’t fucking stop for anything because on the other side of that is peace. That’s all I ever wanted when I was going through this, like, I just need some peace in my life. Like I want to be able to enjoy my child.

Right. You know, I want to be able to sleep peacefully and wake up refreshed, not having nightmares all night. I want to be able to have sex again, and like be in love and have a relationship and feel worthy of that and have my kid around somebody that I feel is a positive influence. And I’m there now. So like, I can tell you, yes, I’m sitting here having a visceral reaction to this interview, but I’m also sitting here with a loving husband upstairs, a seven year old, who is well adjusted, who was breastfed for 10 months.

And honestly, I’m happy. And I have peace in my life. Any peace I don’t have is self-inflicted and you can get there. So I just want to give you some hope that if you move straight through it and you get advocates around you like Jeff and like me and Maureen and best friends that can help calm you down with a glass of wine and reminding you that you’re worthy of these things that you’re asking for, you will find it on the other side. So just keep going. We love you so much, and we’re proud of you and fight for your rights. Respectfully and reasonably.

This ad is sponsored by Breastfeeding for Busy Moms. Heather here, did you know that I own a business called Breastfeeding for Busy Moms? I wanted to let you know that you can feed your baby in a way that works for you. My online breastfeeding classes can help you prepare, troubleshoot and give you the confidence you need to have a smooth breastfeeding journey. I’m always sure to include actionable ways your partner can help you in order to avoid those devastating unmet expectations arguments. If you’re the kind of person that loves having personalized support, you can take advantage of my open office hours every other week for Breastfeeding for Busy Moms students.

I never leave my people hanging. If you need more than a group support chat, my students also get 25% off private consults. So pop on over to Breastfeeding for Busy Moms, and prepare the best way you can. I’ll see you in class. And the link is in the show notes.

All right. Awards in the Alcove! Welcome to the Milk Minute, Awards in the Alcove! Yep. We’ve got a big award today. We’re giving this award out to Erika, with a K, who made it to five months of breastfeeding and was able to donate 300 ounces to a mama in need. Holy crap! I’m so proud of you! That’s awesome. So not only were you able to do for yourself, you were able to do for others. Amazing.

And then, you know, this episode is pretty heavy, that we just did today. And, you know, we just all need to understand that everybody is going through something and we need to be there for each other. We understand better than anybody, what it’s like to try to feed a baby and maintain everything else in life.

So thank you, Erica, for your kindness towards others and thinking about our breastfeeding community. Yeah. We’re going to give you the Selfless Lactator Award, Erica because you deserve it.

Thanks for listening to the Milk Minute. If you haven’t already please like, subscribe and review our podcast wherever you listen. If you’d like to support our podcast, you can find us on Patreon at patreon.com/milkminutepodcast. To send us feedback, personal stories or just to chat, you can send us an email at [email protected]

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