Do breastfeeding mothers always get custody of infants? Is it gender discrimination for a court to consider breastfeeding when determining custody? If a court can consider breastfeeding, how much weight can it put on it? The North Dakota Supreme Court has shed some light on these topics in a recent case, Edison v. Edison.

Backdrop: Repeal Of The Tender Years Doctrine

At one time, North Dakota had a statute known as the “tender years doctrine” which stated that a mother should be the primary custodian of a small child absent extraordinary circumstances. This law was repealed in 1973, and since that time the North Dakota Supreme Court has consistently held that there should be no preference between mothers and fathers as to who will better promote the best interests of a child. The Court has stated, “Gender bias in judicial proceedings is wholly unacceptable.” Section 14-09-29 of the North Dakota Century Code now includes the following: “Between the mother and father, whether married or unmarried, there is no presumption as to whom will better promote the best interests and welfare of the child.”

Edison v. Edison

The issue of gender bias in custody cases mostly lay dormant until 2023, when, in Edison v. Edison, a district court awarded primary residential responsibility of two children to a mother, due mostly to the fact that she was breastfeeding the youngest child. Of the thirteen best interest factors, the court determined that ten were neutral and three favored the mother. In all three, the court discussed breastfeeding and the bond between infants and mothers. The court made such statements as:

The bond between a breastfeeding mother and a newborn is likely as strong a bond as can be established between two human beings. This is no fault of [father’s]. Rather, it is an inescapable biological reality.

[Mother] is also breast-feeding E.E. This contributes to E.E.’s development in ways that formula cannot. It increases E.E.’s emotional bond with [mother]. It strengthens E.E.’s immune system.

This factor favors [mother] and weighs significantly in the Court’s ultimate conclusions. […] These biological realities are unavoidable and must be strongly considered by the Court.

[Mother] continues to breast-feed E.E., which not only involves considerations of emotional connection, but all the practical considerations attendant to breast-feeding. Yes, women are able to use mechanical pumps to help supply the child’s needs. However, a pump approach bypasses the psychological and emotional benefits of at-the-breast feeding. […] The Court’s ultimate decision endeavors to be respectful to, and accommodate, [mother’s] feeding of E.E., and its benefits to her. This weighs heavily in favor of [mother].

This should not be understood to be a criticism of [father’s] parenting abilities or desire. Rather the Court is confronted with a biological reality that E.E. is a breast-feeding infant in the midst of an unprecedented formula shortage.

The North Dakota Supreme Court reversed the district court, holding that the district court’s decision, in relying so heavily on breastfeeding, was impermissibly gender-biased. Interestingly, the Supreme Court stated that a single gender-biased comment by a district court is not necessarily reversible, as long as the rest of the best interests analysis is appropriate. But in the Edison case, the Supreme Court said that because the district court’s reasoning depended significantly on the mother’s breastfeeding, it was clearly erroneous. This is despite the fact that the district court did find some facts in favor of the mother which weren’t related to breastfeeding, such as the mother’s stronger ability to promote the children’s development due to her training as a teacher. The implication from the Supreme Court appears to be that more than a little gender bias tarnishes the whole.

The North Dakota Supreme Court didn’t forbid any consideration of breastfeeding. It prohibited courts from applying generalization based on sex. Generalizations like assuming a breastfeeding mother naturally has a deeper bond with a child than a father, or that a mother is better suited to care for an infant. It stated:

The prohibited reasoning runs like this: (1) a woman is more likely than a man to have a particular positive characteristic relating to a best interest factor; (2) this parent is a woman; (3) therefore the best interest factor weighs in favor of this parent because she is a woman.

In other words, some sex-based considerations may be allowed if they are based on the actual facts of the case instead of on generalizations about the sexes. To what specific extent the North Dakota Supreme Court might allow sex-based considerations is not entirely clear.

Conclusion

If you have questions regarding this topic, then seek the advice of a family law attorney. Contact the SW&L family law team at 701-297-2890 or email us at: info@swlattorneys.com.

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