Friday, March 8, 2013

Obesity as a Factor in Indiana Child Custody Decisions

The factors that are considered in child custody decisions cut a swath across a broad range in pursuit of the best interest of the child. The minimum factors that a court must consider are found under IC 31-17-2-8 and the companion paternity statute 31-14-13-2. Specifically, factor 6 relates to the health of the children.

I have been building cases to help parents obtain custody decisions to benefit the children by using the obesity of the children or the other parent as an aggravating factor towards his or her fitness as a parent. Empirical data is suggesting that overweight or excessively fat parents are more likely to harm or neglect their children than those who maintain a healthy weight or fat percentage. The harm or neglect is not just related to the weight of the child. The UCL Institute of Child Health in London notes that usually obesity will be only one of a number of factors causing concern along with poor school attendance, exposure to or involvement in violence, mental health problems of parents and emotional or behavioural difficulties.

One of the eight factors in child custody decisions, 31-17-2-8(6), provides that the court shall consider "[t]he mental and physical health of all individuals involved." Thus the physical health of the parent and the children are factors that the court must consider. This is a point that has often been sidestepped in child-custody decisions but is now gaining greater attention and consideration coinciding with national debate about health and well-being issues.

If a child is oversized and one of the parents is also then I can establish the likelihood of a causal link and argue that the oversized parent is responsible for the harm to the child. This harm comes in various forms including, physical, emotional and social as found by the UCL Institute and other studies.

I have recently offered to help the obese mother of our son shed the extra pounds. Rather than use that against her in a custody proceeding I prefer to take the proactive step of assisting her as one of my Life Coaching partners. After all, she is the mother of our son who lives with her and anything that can help improve her health I believe will provide a related benefit to him. Of course I am doing this without a request that she compensate me.

My focus for this article is going to be on children and women. This is not based upon any desire to alleviate men of their responsibility towards maintaining a reasonable fat percentage. Quite to the contrary I am saving my harshest tirade for the ignominious waistlines of men, whom I will propound in a future posting should be thinner than women. Rather, it is women who are overwhelmingly responsible for the day-to-day care of children and food purchasing decisions.

The American epidemic of children being oversized can be directly attributable to the purchasing habits of women according to marketing research. This is primarily due to the busy lifestyles that befall the modern woman. This neglect of self and children is becoming the new cigarette smoking and is more often becoming a factor in child custody decisions.

The issue of size or weight does not rest solely on the physical attributes associated with the child and parent. I can extrapolate a greater association to mental fitness of the parent and espouse that there must then be a corresponding malaise or neglect towards other factors affecting the best interest of the child such as those which were indicated by the UCL Institute.

A parent who does not care enough to properly maintain his or her physical health and subsequently that of the child is going to more likely be neglectful other important areas. If the child is obese but the parent isn't then there is a discipline problem or, as is often occurring, a parent using "food" as a tool for gaining favour from the child torn between parents or as a substitute for a meaningful relationship with the child. Parents who fail to maintain proper discipline of their children subject them to increased risk of teenage pregnancy, incarceration, drug abuse and many other ills known to beset children lacking parental influence or proper supervision. As you can see there is much more to obesity than just the weight or size itself that can influence a child custody decision. Parents therefore need to carefully consider the ramifications of their child's weight and how to best mitigate the negative impression this can have during child custody litigation.

Get Proactive -

The good news is that it is not a hopeless cause although maintenance of a healthy weight may seem so, especially for those trying to manage a hectic lifestyle that includes job demands, familial obligations and managing one's own health. With proper guidance and a plan these areas and more are easily manageable.

There has been a paradigm shift not only in the family structure but the dynamics of responsibility in post dissolution households. Women are now facing greater challenges than ever before. Wages for women as well as occupational demands are now exceeding that of men in many geographical areas of the United States. This has not been without an effect on the women and the children.

Childhood obesity has been at the forefront of national health concerns for the past few years. Even with such attention, the rate for girls has remained flat while the rate for boys has increased over the past five years. Weight mismanagement is the new smoking. But unlike smoking -- which has falsely gained wide-acceptance as being an addiction not within the control of the user -- excessive fat gain is now known to also be a conscious decision. People don't just become fatter or catch obesity. Every calorie of food that enters the body is based upon a purposeful decision just like the effort that smokers go through to make their conscious decision to smoke each cigarette.

People who are obese often engage in various denial based claims for their condition. These are no more valid than those specious excuses invoked by smokers. Both are based on nothing more than willpower and the lack of acceptance of responsibility by those people.

As humans, like most species, we are endowed with an innate sense of self-preservation. This can easily be found in the flight-or-fight response to dangerous situations. The amount of planning and willpower that it takes to overcome our instinct is aptly demonstrated by those who pursue a more expedient demise. Those who have been successful in committing suicide have often failed in the past and have put a great amount of deliberation, planning and willpower, into completing the act. The same is true for those who seek to hasten their deaths through smoking or unhealthy caloric consumption.

For a clear demonstration of willpower watch the assassination attempt of President Ronald Reagan. A local police officer ducks for cover but a Secret Service agent steps forward and broadens his body in an attempt to catch bullets intended for Reagan. It takes an awesome amount of willpower to endanger ones own life in this manner. The Secret Service agent who had gone through years of training was able to do so. The police officer however, even though purported to risk his own life to protect and serve was unable to overcome that innate self-preservation instinct and attempt to protect President Reagan.

Other excuses for not maintaining a healthy lifestyle that make proper weight and fat management possible simply run the gamut from medical conditions to lack of availability of nutritional food. Yet it is often the decisions to consume non-foods or a poor diet that produce the adverse medical conditions or result in retailers choosing not to stock healthful foods. None of those excuses are greater than the will power or desire that humans possess when they seek to harm themselves such as the elaborate efforts they go through to get money for and then acquire cigarettes. If that same type of dedication was redirected towards maintaining a healthy diet then obesity would not be an issue.

I make no contention that it is a simple process to change the unhealthy and harmful eating habits that lead to obesity. After all, consumers have engaged in years of training to gain the willpower necessary to overcome the innate sense of self-preservation and instead consume edible garbage disguised as food. This has mostly be done through the direct and indirect promotion of garbage consumption as demonstrated on television commercials and programs where dialogue or product placement reinforces unhealthy decisions. Most of the marketing efforts by so-called "food" processors has been aimed at the impressionable minds of young children. The medium that regulates the exposure of children to these harmful messages is – the parents. When parents fail to mitigate this exposure and even participate in supplying the garbage to the children, that is neglect.

Child Neglect cases

Prior to becoming a more common contention in child custody battles involving divorced parents or paternity cases the “childhood obesity is neglect” issue was raised by governmental agencies charged with protecting children from abuse or neglect.

"Parental failure to provide their children with adequate treatment for a chronic illness -- asthma, diabetes, epilepsy, etc -- is a well accepted reason for a child protection registration for neglect," says the UCL Institute. Adding obesity, even though equally harmful, has not become as widely accepted yet. Dr Russell Viner of the UCL Institute says it is difficult to establish when obesity shades into neglect and becomes an issue for child protection. Viner placates some of the responsibility for the neglectful parents because the pressure on everyone to eat too much and exercise too little is so powerful. These factors are so strong that "for some parents, it is very difficult to stop their child gaining weight". It is this type of attitude that can undermine efforts to ensure that children get the needed help to fight obesity facilitated by neglectful parents.

He also pointed to the strong associations between food, feeding, caring and love stating, "[E]ating is a pleasure and you want to give your children pleasure." The problem here is often exacerbated in divorce situations where waring or high conflict parents often battle for the affections of the children. Children need to be shown real love and caring by parents through meaningful interactions not by the substitution of real food with playful, tasty and fun-to-eat garbage made to appear as though it were food.

JAMA states that, "mandated reporter laws may obligate physicians to contact child protective services in the cases of children for whom chronic parental neglect has resulted in severe weight-related health complications." But the UCL Institute says, "Removing children from their parents may not help obesity. There are few data on the weight of children in public care."

A recent study found that 37% of children in care were overweight or obese – but almost all of them had put on weight after they were put into foster care demonstrating that removal from the parents did not resolve the problem. Unlike these placement cases where the child is removed from the parents and the neglect is allowed to continue, child custody placement between parents raises a different issue. In this instance the court is not being asked to consider whether the child should continue to be under the care and supervision of the parents but, rather, which parent can provide the better structure and environment upon which to attempt to ensure that the obesity issue with the child is more likely to be ameliorated.

Oversized parents -

In examining childhood obesity and neglect in general from a preventative standpoint can we make a correlation between oversized parents and neglect? "As in all areas of child health, we have a duty to be open to the possibility of child neglect or abuse in any form," concedes the UCL Institute.

Courts, practitioners and litigants should all elevate the level of priority assigned to the mandatory consideration of "[t]he mental and physical health of all individuals involved" by focusing on the easy measures of physical health. These include BMI and basic vitals along with other measures such as the US Army fitness test. Obesity in a parent and the correlation to the children should be carefully examined and given greater attention and weight by the courts.

In following the development of obesity in parents there is well established evidence that environmental factors are a significant contributor. Essentially saying that the environment in which a child is raised will play a great role in whether the child becomes obese. This does not obviate the decision making power of the child as an adult as whether to engage in a healthy lifestyle and choose healthful foods. However, the child raised in an unhealthy environment with an obese parent will face a greater challenge to becoming a healthy adult once weened from the support and control of the parent.

While some children can thrive and develop healthfully while in the care of an unhealthy parent, few do. This is easily observable. When I am out in the community at eating establishments, school events, the library or other locations where children gather I fix upon an obese child and then try to observe the child reuniting with a parent. In very near to every incident the parent is also obese.

Conclusion -

Obese parents in general are harmful to children especially when given overwhelming control over the children. It has been established that obese parents are more neglectful to children than healthful parents. The long-term health and well-being of children is at significant risk when custody and placement is awarded to an obese parent.

Judicial officers are gradually becoming more attentive to this issue as national attention focuses on health and well-being. With proper counseling attorneys and litigants can also enlighten courts to the harmful effects of placement with obese parents. The best interest of children demands that weight and BMI be an elevated priority in child custody decisions.

If you are involved in a child custody dispute with an oversized parent or your child is oversized then it is imperative that you properly articulate this necessary consideration to the court.

Conversely, if you are the oversized parent then it is of greater importance that you set aside your own desires and focus on the best interest of your child by engaging in practices that improve your health and well-being as well as that of the children.

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©2008, 2013 Stuart Showalter, LLC. Permission is granted to all non-commercial entities to reproduce this article in it's entirety with credit given.

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