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Infant custody laws & BFing  

post #1 of 13
Thread Starter 
My mother is a police officer in Florida.

She called me tonight because she wanted to get my input on a situation she encountered while working a week or so ago. As she was not the primary officer on this scene, she could not make any decisions regarding the outcome, but did her best to influence the primary officer into making the right choices.

The story--Police were called on a "domestic battery in progress." A male officer was first on scene, the "primary." My mom was his back-up, and his female sergeant was also on the scene. A man and a woman and their 9-month old baby boy were at the home. The man was accused of physically attacking the woman. The man denied the attack, saying, instead that it was a "mutually combative" situation, in which they were both attacking each other.

My mother says that, in her professional opinion, it was clearly a case of domestic battery perpetrated against the mother, given the marks and scratches on the woman and the lump on the back of her head, and the man was unscathed. The primary officer basically dismissed the woman's complaint and said he was not going to arrest the man for battery, thus leaving him free to remain in the home with the woman and child.

The woman was visibly upset and said that all she wanted to do was take the baby and go stay with her parents until she could figure out what she was going to do. Let me add here that the baby was breastfed. The primary officer told the woman that she could not take the baby out of the home if the father did not consent, and that she could leave but the baby had to stay. "But I'm breastfeeding," the mother advised, again.

Although my mother could not convince the primary officer to arrest the man, she was able to convince him to allow the woman and baby to leave.

She is now on vacation and trying to do some research on the Florida State Statutes that would affect child-custody in a situation like this--where the parents are not married and there is no court-order regarding custody. The father is on the birth certificate, but they have never been married, and my mother is of the understanding that in the absence of a court order, the custodial parent will always default to the mother. She is even further convinced that the fact that we're talking about a breastfeeding pair here would be even more to support that the mother (in this situation) would retain the legal custody rights.

She has been through her criminal statutes book, but has been unable to locate any information specifically supporting (or denying) her position. She would like to be able to find something to legally support her position so that she can share it with other officers.

I know this may be only partially related to breastfeeding and lactivism, but I think my primary concern is that the male officer was willing to force a breastfeeding mom to separate from her nursling in order for her to not feel afraid for her life, and that is why I'm hoping some of you who are more versed in the lactivist-side of things might be able to help me.

Any ideas where to look?
post #2 of 13
i'm so far away an certainly no expert but i hope to god someone who can help will come along soon. that is awful....poor woman and her baby.
post #3 of 13
Elizabeth Baldwin specialized in the rights of mothers to custody of their breastfed babies. Unfortunately, she's no longer with us.

Here is one of her articles http://www.llli.org/NB/NBJanFeb96p4.html
post #4 of 13
In Fl, in absence of an order on custody, it defaults to the person with physical custody of the child at the moment if they are both on the BC - IOW, mom is holding baby in her arms, mom has baby and vice versa. However, there is nothing in Fla law that protects breastfeeding in regards to this situation. MOst judges I've known in Fla will take it into consideration, but there are no official tender ages laws or such to protect it officially (OR so sayeth my attorney)
post #5 of 13
Bfing or not -- is this TRUE????????? : Can she not even go to a protective woman's shelter?

Quote:
The primary officer told the woman that she could not take the baby out of the home if the father did not consent, and that she could leave but the baby had to stay.
post #6 of 13
THis happened to me. I had bruises and was so sore i could barely move and the police officers would not issue me a protective order because the dad said it was mutual. Beside that point the police officer lied to her. She can leave the home with the baby. So could the dad. Neither needs each others permission. Also she should have been advised to go to a domestic violence shelter whether or not the officer thought it was mutual or onesided. Pictures should have been taken of the mother's wounds also. SHe has a fair right to try for a protective order.

As far as breastfeeding goes there are few rights in most states. A majority of judges do not place much on breastfeeding as the means for there not to be overnights. But the mother had the right to leave with the baby and i hope she goes for a protective order and your mother being a police officer at the scene can provide an affidavit of her opinion to help the mother get that order.
post #7 of 13
Quote:
Originally Posted by MaryJaneLouise View Post
Bfing or not -- is this TRUE????????? : Can she not even go to a protective woman's shelter?

No, that was a lie. The police said this to me and also told me if i didn't figure out a way to stop the fighting and abuse that they would call CPS on me and have the kids taken away. But i wasn't allowed to leave. When i called a shelter i found out he either lied or just doesn't know the law. Either parent can take the child as long as no court order is in place.Most states are trying to set forth a law that if a domestic violence call is made and there are injuries on either person that there must be immediate arrest.
post #8 of 13
Quote:
Originally Posted by Avani View Post
The police said this to me and also told me if i didn't figure out a way to stop the fighting and abuse that they would call CPS on me and have the kids taken away.
This can and does happen in my state (not FL). You can leave the home with the children, but if you stay DSS may take your children out of the situation.

---

To the OP, in my state (again, not FL), if there is not an existing custody order then both parents have equal rights to the child. Essentially that means that the police cannot interfere by taking the child away from one parent and giving it to the other. The police can also not stop one parent from removing the child from the home without a court order stating otherwise.

If a father has possession of an exclusively breastfed child and won't give him/her back to the mother, here you can seek an emergency order from the court to have the child returned to the mother, which of course can be enforced by the police. Sometimes the order is granted and sometimes not. I actually think this would be a good area for legislation to protect the breastfeeding relationship.

I think a default rule in favor of the mother would be unconstitutional. There have been some US Supreme Court cases about using sex to determine the outcome in custody cases, and I'm pretty certain that it has been ruled unconstitutional to consider sex as a factor in a custody proceeding. A default rule granting custody to the mother in the absence of a custody order seems like it would be invalid under that line of reasoning.
post #9 of 13
But she wouldn't be getting the child because of her sex. She would be getting the child because she's the person producing milk for the child. If no one were producing milk for the child, it wouldn't be an issue. So it's not her sex.
post #10 of 13
Quote:
Originally Posted by Sustainer View Post
But she wouldn't be getting the child because of her sex. She would be getting the child because she's the person producing milk for the child. If no one were producing milk for the child, it wouldn't be an issue. So it's not her sex.
Actually my last paragraph was in reference to this quote from the OP:

Quote:
Originally Posted by cjanelles
The father is on the birth certificate, but they have never been married, and my mother is of the understanding that in the absence of a court order, the custodial parent will always default to the mother.
I should have been more clear, as I agree with you about the breastfeeding aspect not being unconstitutional.
post #11 of 13
Quote:
Originally Posted by Sustainer View Post
Elizabeth Baldwin specialized in the rights of mothers to custody of their breastfed babies. Unfortunately, she's no longer with us.

Here is one of her articles http://www.llli.org/NB/NBJanFeb96p4.html

I believe her dh, Kenneth A. Friedman,is still practicing in Miami, Florida, though I'm not sure.


BREASTFEEDING AND FAMILY LAW
post #12 of 13
That mom should take pictures of her injuries and consider a shelter for better advice than that male officer gave her.
post #13 of 13
Quote:
Originally Posted by Emmeline II View Post

BREASTFEEDING AND FAMILY LAW
I wanted to note that there are ways in which the first article in this list (from 2006) modifies the others. Keep in mind that a lot of the information in the other articles is dated. Also no responsible advocate would advise a woman negotiate or arbitrate in a situation involving abuse. In jurisdictions where there is a requirement that couples first mediate, that requirement is waived where there is abuse. Mediation assumes an equal power relationship which does not exist with abusers.

What the OP writes is incredibly common. Police officers will frequently give inaccurate legal advice to women in domestic violence situations. Fifteen years ago I ran a legal center for battered women and getting police to do their jobs in these situations was a constant problem. I applaud the OP's mother for wanting to do something about this. When I would try to find out why responding officers behaved this way I found two key facts: (1) many police officers are killed or injured responding to "domestic" calls and (2) a disproportionate number of abuse court defendants were police officers themselves. Also police officers knew that a large proportion of women in these situations drop the charges and go back home. Even some well-intentioned P.O.s felt it was just a waste of time.

I second what some PPs have written - in the absence of a court order, custody stays with the person who has the child. Police are not empowered to make custody decisions. Mother has the right to leave the house with her chlild.

When they do seek an order, the fact that the parents are not married is irrelevant. And very few states have laws requiring that breastfeeding be considered in making custody decisions. It seems to be very much a crap shoot.

Another sad component in these cases is that the fact that dad is abusive to mom may have no impact on who gets custody. In Pennsylvania we fought for years to allow cutody judges to consider abuse of mom as a factor in making custody decisions. For many many years, dad's abuse of mom was inadmissible in a custody hearing. It took years of showing legislators that abusive mates are likely to be abusive parents, and that the risk of fatal abuse is particular high after mom leaves. Now in PA abuse is one factor among many. It varies from state to state.

http://www.ncadv.org/ is a good resource for the OP's mom. In Philadelphia we were able to convince the Philadelphia police department to include DV training in some annual trainings but I don't know if they still do it. Perhaps as a fellow officer, the OP's mom can convince her department to do trainings. During the trainings, many of the officers were open to learning why women stay in abusive relationships and how, though they may go back many times, many will ultimately leave and stay gone. The officers really needed tools for understanding and for processing the frustration when women go back.
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