Obesity and custody

When determining the best interests of a child, the number of factors to be considered is almost limitless.  And with childhood obesity the health scare of the moment, this doesn’t surprise me:

The nation’s waistline is expanding, and so too is the role of obesity in child-custody battles in the U.S.

Family-law practitioners and legal experts say mothers and fathers in custody lawsuits are increasingly hurling accusations at each other about the nutrition and obesity of their children, largely in attempts to persuade judges that their kids are getting less-than-optimal care in the hands of ex- and soon-to-be-ex-spouses.

The evidence used to support the allegations varies. In some cases, it’s a grossly overweight child. In others, it’s evidence that soft drinks and potato chips make up a disproportionate part of a child’s diet. In still others, it’s that the other parent is too obese to perform basic child-rearing functions.

“It’s come up quite a bit in the last couple of years,” said Douglas Gardner, a family-law practitioner in Tempe, Ariz. “Typically, one parent is accusing the other of putting a child at risk of developing diabetes or heart disease—or saying that the child is miserable because he’s getting made fun of at school.”

For judges in many states, the question of custody turns largely on one question: What is in the best interest of the child? Some states such as Pennsylvania recently altered their definition so that the criteria now clearly include the physical as well as the emotional well-being of the child.

I’m aware of one Nova Scotia case in which the child’s weight was a factor: Gillespie v. Patterson, 2007 NSSC 368.   Among the reasons custody was awarded to the father, the Honourable Justice Scaravelli noted that the mother “effectively sabotaged” their daughter’s obesity treatment plan.

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