Until recently I had been representing the family of a child whose morbid obesity led to repeated Department of Social Services interventions. His medical doctors could find no organic reason for the child’s morbid obesity and warned he was at high risk of early death or serious health problems unless he lost weight and kept his weight under control. Whenever he was removed from his family he would slowly lose weight, only to rapidly regain that weight when he returned home. From the family’s perspective they were being unfairly singled-out and oppressed (the child was happy in their care and there’s plenty of obese children in Charleston County). From DSS’s perspective, the agency was trying to protect a child from serious injury or early death that his family seemed uninterested or unable to prevent.
Is failing to remedy a child’s morbid obesity a form or child abuse or neglect? Under South Carolina Code it could certainly appear to be. S.C. Code § 63-7-20(4)(c) offers a definition of child abuse or neglect that includes when a person responsible for a child’s welfare “fails to supply the child with adequate food… supervision appropriate to the child’s age and development, or health care though financially able to do so or offered financial or other reasonable means to do so and the failure to do so has caused or presents a substantial risk of causing physical or mental injury.” Morbid obesity presents a substantial risk of physical injury. Providing a child with so much food that the child ends up morbidly obese could arguably be failing to provide the child “adequate” food. Failing to properly supervise the child’s diet appropriately for the child’s age and development or failing to provide medical care necessary for the child to maintain a healthy weight could constitute abuse or neglect under this statute.
However, to date, there is no reported South Carolina case finding that failing to properly maintain a child’s weight is child abuse or neglect. Further the law is unsettled throughout the United States. A Westlaw search of the allstates database for “child /s (abuse neglect) /s obes!” located only one published opinion, from a New York State family court, in which a child’s uncontrolled obesity led to removal and even that case was reversed on appeal in In re Brittany T., 48 A.D.3d 995, 852 N.Y.S.2d 475 (2008). Subsequent searches located two reported cases in which a parent’s inability to properly monitor a morbidly obese child’s diet led to removal or termination of parental rights. In the Interest of G.C., a Minor Child,66 S.W.3d 517 (Tx. App. 2002); In the Interest of L.T., a Minor Child, 494 N.W.2d 450 (Ia. App. 1992). See also, Is Childhood Obesity a Form of Child Abuse? Factors to consider in judicial rulings by Hayes, Jenna T, Sicafuse, Lorie L.
Given the large and increasing percentage of obese children in America, it is unclear whether family courts are willing or able to engage in widespread monitoring of children’s weight and diet in the goal of preventing the “abuse” or “neglect” of growing up with a greatly increased risk of heart disease, stroke and diabetes.
The inability or unwillingness to develop legislative remedies to childhood obesity may ultimately lead to folks seeking judicial solutions to this problem. I suspect the next decade may see a geometric explosion in the number of child protective services cases brought over obesity. Further, I expect many custody cases to be fought over a child’s diet, just as custody cases a decade ago began being fought over secondhand smoke exposure. For a family law practitioner who represents parents in custody or abuse and neglect proceedings, developing a network of nutritionists one can turn to for guidance may become a standard part of the practice.