Breast-Feeding and Visitation

August 22, 2016 § 1 Comment

Among the many reasons parties request restricted visitation is to accommodate breast-feeding schedules.

That was the issue in the case of May v. Arthurs, decided by the CAO on June 28, 2016.

Derek May sued Kira Arthurs to establish paternity of their baby, Mason, born January 29, 2014. One of the issues for the court to decide was Derek’s visitation. Kira was breast-feeding the baby at the time of the trial on October 14, 2014.

Following the hearing, the chancellor concluded that the baby was “still using breast milk and [Kira had] the right to continue breast-feeding.” The COA opinion, by Judge Lee, sets out the visitation ordered by the court:

 ¶5 … At the time of trial, Derek was exercising weekend visitation every other weekend from Saturday at 10 a.m. to Sunday at 4 p.m. The chancery court ordered this to continue until Mason reached eighteen months of age or was totally weaned from breast milk, whichever occurred first. Then Derek would have visitation every other weekend from Friday at 6 p.m. to Sunday at 6 p.m.

¶6. Regarding summer visitation, the chancery court ordered Derek would have Mason beginning June 1, 2015, for a three-week period. Derek would also have Mason beginning July 1, 2015, for a three-week period.

Both the weekend and summer visitation were restricted until Mason reached the age of 18 months or was completely weaned, whichever occurred first.

The COA vacated the order, reversed, and remanded:

¶13. “Child visitation, and its limitations, are awarded at the chancellor’s broad discretion.”Cassell v. Cassell, 970 So. 2d 267, 271 (¶17) (Miss. Ct. App. 2007) (citing Harrington v. Harrington, 648 So. 2d 543, 545 (Miss. 1994)). “The chancellor must keep the best interest of the child as a paramount concern, while being attentive to the non-custodial parent’s rights.” Id. (citing Faris v. Jernigan, 939 So. 2d 835, 839-40 (¶8) (Miss. Ct. App. 2006)). “The court should be concerned with the need for the non-custodial parent and child to maintain a healthy and loving relationship.” Id. at 271-72 (¶17).

¶14. “When restrictions are placed on visitation, there must be evidence that the particular restriction is necessary to avoid harm to the child.” Id. (citing Cox v. Moulds, 490 So.2d 866, 867-68 (Miss. 1986)). “A lack of this evidence will render the chancellor’s restrictions on  the non-custodial parent’s visitation manifest error and an abuse of discretion.” Id. (citing Fulk v. Fulk, 827 So. 2d 736, 742 (¶21) (Miss. Ct. App. 2002)).

¶15. The record before this Court fails to demonstrate that the restriction on summer visitation was reasonable or necessary to prevent harm to Mason. Rather, Kira offered every other-week visitation in the summer until Mason was older. Kira testified that while Mason was an infant, she “would like it to be a little more consistent.” It was the chancellor whose “only concern [was] the breast-feeding.” Therefore, we vacate the chancellor’s summer visitation award and remand the case for the chancellor to revisit the issue of summer visitation consistent with this opinion. However, we affirm the chancellor’s weekend visitation award.

One fact undercut Kira’s position. You can find it at footnote 4, which states: “Kira provided breast milk whenever Derek had visitation, and the breast milk was being supplemented with solid foods as well as apple juice and water.” Translation: Derek was able to meet the baby’s need for breast milk when he had visitation; ergo, it was unnecessary to restrict his visitation.

I don’t see a lot of precedential value in this case vis a vis breast-feeding in particular. Breast-feeding is treated the same as any of the many other reasons that people advance to support their claims that visitation should somehow be restricted. Every one of these cases is fact-intensive and calls for more than mere allegations or assertions. There must be proof that the restriction is necessary to avoid harm to the child. Meeting that standard should not be a big challenge to most lawyers.

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