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A “Weighty” Issue: When a Child’s Weight Becomes a Factor in Custody

Adults aren’t the only Americans struggling with an ever-expanding waistline. For years, obesity has been on the rise in our children (see the most recent CDC statistics) and is a focal point of Michelle Obama’s well-publicized “Let’s Move” campaign.

In recent years, the battle against childhood obesity has found its way into family court—and is more frequently taking center stage in custody battles. (see a recent article by the Wall Street Journal). An opinion piece in the Journal of the American Medical Association noted that removing children from their homes and placing them in foster care was perhaps more ethical than obesity surgery for “super-obese” kids. (read more here).

In Cochrane v Cochrane, unpublished opinion per curiam of the Michigan Court of Appeals, issued February 14, 2013 (Docket No. 312572), the Court affirmed a Kent County Family Court’s decision to change custody on the basis of the child’s obesity and the fact that he continually gained weight while living with the Defendant father, but lost weight when living with Plaintiff mother.

What makes this case even more interesting is that the established custodial environment had been with the Defendant father, which meant that Plaintiff mother had the burden of proving by clear and convincing evidence that the change in custody was in the child’s best interest. The evidence presented by the mother showed:

• The child was considered “obese” by doctors;
• As a result of high glucose levels, the child was “pre-diabetic”;
• While with the mother in the summer of 2010, the child lost ten pounds;
• During the following 2010-11 school year with the father, the child gained 32.3 pounds;
• While with the mother in the summer of 2011, the child lost eight pounds;
• During the following 2011-12 school year with the father, the child gained 40 pounds;
• The mother was very concerned with the weight of the child while the father did not know that the child’s weight gain was a “huge problem”

The trial court found that plaintiff mother’s testimony regarding the child’s weight issues was credible as well the mother’s testimony that based on the current trajectory, the child could weigh over 300 pounds by the time he was in high school. Based on the potentially significant health problems unless the child began losing weight, the Court changed custody of the child to plaintiff mother.

Whether these same principles could be applied where the child is not obese remains to be seen, but it definitely something to consider if there is an extreme difference in lifestyle choices between the parents.

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