It’s things like this that sometimes make me ashamed to be a lawyer. Seriously. There’s been a lot of media talk lately about how parents are using their childrens’ obesity (and blaming their spouse for causing it) as leverage in custody battles.

But let me backpedal a bit first. Earlier in the year, the issue was whether parents should lose custody of their extremely obese children, who would be put into foster care. This issue was raised in an opinion piece in the Journal of the American Medical Association, written by Dr. David Ludwig, an obesity specialist at Children’s Hospital Boston.  Ludwig claims that the point isn’t to blame, but to act in the child’s best interest and provide help parents can’t provide. He states that the goal is to reunite the family and perhaps provide parenting instruction.

Ludwig focuses on a few “extreme” examples in which authorities should intervene. Scary stories like a three year old girl who weighed ninety pounds and reached 400 pounds by the age of twelve. A fourteen year old boy who weighed 555 pounds. Sensationalism calculated to put fear in peoples’ hearts as a means of breathing air into his argument.

He believes existing child protection laws are enough to carry out his recommendations. Children welfare agencies and foster care are already overburdened and children aren’t getting the protection they need. Do we really want to make matters worse?

Ludwig also suggests that all reasonable alternative options will be exhausted. I’m skeptical as to whether this would really happen. I’m also skeptical as to whether his suggested “aftercare” would actually be effectuated. Or would be pulling kids out of their home be the quick and easy “fix”, after which they would languish and be forgotten about in the foster care system? Perhaps he should be focusing more on preventative measures and the “reasonable alternatives” rather than making the ominous and premature threat that children be taken from their parents.

We also can’t ignore the fact that is the poor that would be disproportionately affected by this. Poor parents without access to healthy food. There are programs working on this problem, perhaps more resources should be put into that. Poor parents also lack the financial resources to obtain legal help should the authorities try to take their child(ren) away.

Lastly, is the “best interest” of the child really being served by throwing her into foster care? Tearing apart parent and child and throwing the child into a strange environment that may very well not be a good one. The parent will be consumed with guilt. The child may feel as though its her fault. She’s pulled from her home for being overweight. That won’t be too emotionally damaging or anything.

Now let’s fast forward to the new (and supposedly growing) legal trend of using a child’s obesity as an argument for custody in divorce proceedings. One parent says that the other is unfit because she isn’t feeding the child healthily enough or otherwise keeping the child’s weight in check. The child may be documented as obese, or the argument may simply be that the parent is feeding the child too much junk food.

So where do we draw the line between a case where a child is truly in health danger or something less compelling? It’s a dangerous door being cracked open. Just how unhealthy does the child have to be, as the argument is not limited to the child in imminent physical danger? Should we give children fitness tests? Make them run the track and do sit-ups?

And where, might I ask, is the accusing parent while the “neglectful” parent is fattening the child up? Why didn’t the parent step in? And how do we know the accusing parent will be so superior as a custodial parent?

Contentious divorce and custody proceedings can be emotionally stressful enough for a child. How will that child feel if she finds out her weight has been made an issue?

June Carbone, a family-law expert and professor at the University of Missouri-Kansas City School of Law notes that  ”People can always find another thing to fight over…It can be endless.” This begs the question as to whether the accusing parent’s argument is one of genuine concern or simply another accusation to hurl and bargaining chip to hold.

I highly suspect that some parents making this argument may have less than pure motivations. It’s that calculated use of a bargaining chip that I find so offensive. An accusation flung to gain traction, perhaps financial in nature. Meant to put fear in the heart of the parent being accused of neglect and make monetary or other concessions she might not otherwise make. The less wealthy parent (usually the primary caregiver) is likely less financially equipped to legally defend herself from these accusations.

It is hard to say at this point whether this is a passing legal trend or whether it will gain strength and legitimacy. While there may be extreme cases, they are in the minority. Despite the fact that they are paraded before the media as scare tactics preying on our society’s hatred and contempt for the obese. Personally, I find it reprehensible and something that needs to fought against.