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Breastfeeding bill could affect custody cases

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Photo by Daquella Manera (creative commons license Photo by Daquella Manera (creative commons license
The decision by Summer Elliott, 27, to breastfeed her son Bodhi is central to a protracted visitation battle with Bodhi’s father. Elliott’s case inspired a bill in the state Legislature. (Photo courtesy of Summer Elliott) The decision by Summer Elliott, 27, to breastfeed her son Bodhi is central to a protracted visitation battle with Bodhi’s father. Elliott’s case inspired a bill in the state Legislature. (Photo courtesy of Summer Elliott)

South Carolina breastfeeding bill could affect custody cases

By Jennifer Standard and Paul Bowers
Edited by Paul Bowers
Posted May 3, 2010

For separated parents of breastfeeding infants, a 34-word bill in the S.C. House could change the rules in child custody and visitation cases.

It might have saved some heartache for Summer Elliott, a single mother from Mount Pleasant who has been locked in a court battle with her ex-boyfriend Judson Suber over visitation since their son, Bodhi, was born in March 2009. Central to the dispute is Elliott's decision to breastfeed, a decision the legislation would require courts to consider.

"We need to start being less selfish and more selfless and doing what's best for the baby," said Elliott, who said she decided to breastfeed after reading the extensive literature on its nutritional and developmental advantages.

According to the U.S. Department of Health and Human Services, breastfeeding is linked to a lower risk of ear infections, obesity, asthma and diabetes in infants and to a lower risk of breast cancer, ovarian cancer and postpartum depression in mothers.

At the heart of the bill in the House Judiciary Committee is the balance between the importance of breastfeeding and that of a father's presence to an infant's well-being. In a sworn six-page statement he read in Family Court, Suber said he was writing out of "frustration" with inadequate visitation during his son's first four months.

"The bottom line is that I am worried about my son," Suber said. "I am worried that at this rate he is going to grow up with such limited exposure to his father that it will be very hard to establish a bond later in life."

Chicago lawyer Jeffery Leving, a nationally prominent family law specialist, says some courts have given unfair deference to breastfeeding mothers.

"There are mothers that will unnecessarily breastfeed children to win custody because obviously a father can't do that," Leving said.

But Elliott says she doesn't want to use breastfeeding as a way to exclude Suber.

"I still want him to be a part of it," Elliott said. "I want it for Bodhi."

Bills similar to South Carolina's have passed in other states. In Maine and Michigan, for instance, breastfeeding is a factor in visitation cases where the child is up to 1 year old. Timothy Zerillo, a Portland, Maine, family lawyer, said that state's breastfeeding law, which took effect in 2005, has not outweighed the 17 other factors state law says to consider in determining a child's best interest.

"Say you had a mom who was extremely troubled but wanted to breastfeed," Zerillo said. "That does not mean that she gets preference in the custody of the child."

Leving objects to the vagueness of the S.C. bill, which reads in its entirety: "In awarding child custody or visitation, or both, in a case where the child is under two years of age and the mother is breastfeeding the child, the court shall take this into consideration."

Leving said clarification would help not only the courts but also parents who can spend thousands of dollars while the legal system sorts out such unclear language. Elliott says she has spent tens of thousands of dollars in legal fees and is "financially destitute."

The vagueness is intentional, said Rep. Anne Hutto, a Charleston County Democrat and lawyer who helped write the bill.

"We had talked about tightening the language," Hutto said. "My concern was that too many details would give people too many things to pick apart and it would kill the bill."

Hutto said Family Court judges across the state have told her they already take breastfeeding into account. She said the bill is intended for those few cases, like Elliott's, where there's a question whether it has been given adequate consideration.

Hutto said she knows of only one legislator who has objected, and she said she is optimistic the bill will pass this year. House Judiciary Committee attorney Bonnie Anzelmo said the General Laws subcommittee adjourned debate on the bill March 23 and could resume debate as soon as next week.

Hutto said the bill's impetus was a conversation she had with Elliott's lawyer, Margaret Fabri. Fabri said Family Court Judge Nancy McLin handed down a "cookie-cutter" order with a schedule that included a one-week uninterrupted Christmas visitation for Suber, who lives in the Greenville area.

"This is a woman judge, so she should have understood physiologically the mother has to have her baby in order to have the milk come in and be maintained," Fabri said. McLin did not return phone calls seeking comment.

In court documents, Suber said he had asked for bottles of mother's milk to feed Bodhi, but that Elliott had not provided them.

Denise Altman, a Columbia-area lactation consultant, said actual breastfeeding is more beneficial than using a breast pump.

"When mother and baby are separated, the mother still has to stimulate her breasts to continue to produce milk," Altman said. In Elliott's case, this meant breastfeeding friends' infants to maintain a milk supply.

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