Tempe Attorney Douglas C. Gardner Interviewed by Wall Street Journal Regarding Obesity in Divorce Cases

In many custody cases, the court is required to balance the right of both parents to privacy after a divorce or separation, with the needs of the children as to protection, health, and safety. While Courts desire to allow both parents to raise their children in autonomy from the Courts and the other parent, the Court will get involved when required to do so for the protection, health, and safety of the children.

As I was returning from a long morning trial, I was recently contacted by a reporter from the Wall Street Journal, who was doing a story on obesity issues in divorce cases, and the effect of obesity of the parents or the child on custody and parenting time issues. The reporter was looking for examples where the obesity of one of the parents was an issue as to the fitness of that parent to care of the children, as well as examples of cases in which the obesity of the child was an issue in parenting.

Under Arizona law, the Court is required in contested custody cases to consider the mental and physical health of the parents and children involved. Courts must therefore consider the obesity of parents or children in rendering custody and parenting time decisions. In cases where the obesity of one parent prevents that parent from caring for the children, the Court can award primary custody to the other parent to ensure that the children are properly cared for.

Obesity arises more often in divorce cases with regard to the weight or health of the children involved. Such an issue can arise when one parent is concerned about the health of the child and wishes to place the child on a restricted or special diet, while the other parent believes that the child is “just a kid” and needs to enjoy life to its fullest and not worry about weight issues until the child is older and has a better understanding of nutrition. I have been involved in cases where I represented the parents taking each side of this hypothetical issue.

The parent wanting to let the child “just be a kid” may feel that the child is only slightly overweight, and will grow out of it when the child hits the next growth spurt. The parent wanting to restrict the child’s diet may see a trend towards obesity, and wants to help the child form life-long health habits that will improve health.

In cases where one parent is a “health nut” and chooses to have only health foods in that parent’s house, but the child is a normal, healthy, skinny child, the Court will not require that the second parent similarly hold the children to the same diet as when in the first parent’s home. In such a case, the Court generally does not want to interfere with either parent’s right to raise the child in a way that that parent feels is best. The judge does not want to order that soda and chips are a health hazard. In this example, the parents’ rights of privacy win the balancing test as there is no genuine health and safety issue.

Let’s take another example where the health and safety issue is sufficient to overcome the parent’s rights to privacy. Imagine a child that has diabetes. In such a case, it becomes more readily clear that the diet of the child is a “health and safety” issue. The chips and soda that were no big deal in the first example, could now cause serious harm to the child. In cases of diabetes, Judges will quickly intervene if a parent refuses to adhere to a doctor prescribed diet. In extreme cases, the Court may restrict the parenting time of a parent who consistently refuses to follow a specifically prescribed diet.

To win these custody cases, my job, as your attorney, is to help define your case as either a privacy issue or a health and safety issue, and to present your case to the Court supporting the case as you see it.

If you are going through a divorce, or if you have been required to return back to court because of a disagreement as to parenting time or custody issues, please call 800-899-2730 and ask to speak with Douglas C. Gardner, or visit our website at yourarizonadivorcelawyer.com.