Elliot Birnboim Quoted in National Post Article

July 20, 2013

Elliot Birnboim was quoted in an article in the National Post about childhood obesity in custody disputes.

A copy of the article originally published on the nationalpost.com is reproduced below and can be viewed by clicking here.

Obesity new factor in grading parents

National Post

The societal panic over childhood obesity, already entrenched in the medical system and evident in the furor over school lunches, is beginning to influence custody judgments and child-welfare authorities in their decisions about fitness to parent.

An Ontario family court judgment involving the Children’s Aid Society recently cited obesity as a reason for removing a child from the parental home, after determining the mother was contributing to her child’s weight gain and was oblivious to the required medical regime.

The details of the case are covered by a publication ban, but the theme is echoed in another case, an epic nine-year custody battle that wrapped up in a Newmarket courtroom last month, much of which centred on the comparative merits of the battling parents in adhering to a diet plan for their obese twins.

The children, who were toddlers when the custody dispute began and who were 10 when it was finally resolved in favour of the mother last month, have spent most of their lives in intensive hospital-based obesity programs.

The custody dispute between their parents, Robert and Lisa, pushed the limits of the extent to which childhood obesity could be considered a result of parental neglect, with evidence in the case using language that makes poor nutritional choices seem tantamount to child abuse.

The father, Robert, for example, argued that it was "manifestly obvious ? that the health and very lives of the children were under imminent threat due to their mother’s refusal to comply with prescribed nutritional regimes and not overfeed the children," according to the judgment in the case, released on Feb. 11.

The case even drew on the evidence of a renowned childhood obesity expert, Dr. Glenn Berall, chief of pediatrics at North York General Hospital, who described himself as an "advocate for the children" and who urged the court to place the children in the direct care of the parent who had demonstrated the ability to comply with a prescribed weight-management program and to restrict access to the parent who did not reasonably comply.

Elliot Birnboim, the lawyer for the mother in the dispute, said this case was the first time the issue of childhood obesity was the primary issue put forth for determining custody.

Even adoption applications are being considered in this way. Last summer, a family court judge in Kansas City deemed Gary Stocklaufer "an unfit adoptive parent" because he was grossly overweight. Weighing more than 500 pounds, he was rejected for health reasons, but was awarded custody this year after undergoing gastric bypass surgery and losing about 200 pounds.

These far-reaching measures suggest the state may increasingly seek a role in the kitchens of the nation, a reflection of cultural attitudes that put obesity beyond mere medical concern and perhaps more in line of social scourge.

A recent study found that Canadian childhood obesity rates rank fifth-highest of 34 developed countries. Rates have soared in the past 30 years, from 5% to 30%, with more children reporting ailments common in obese adults, such as joint degradation, Type 2 diabetes, hypertension and respiratory illnesses.

The morality of obesity has come up in the debate over the rise in the number of patients considered "super obese," and whether the medical system or the patient should bear the cost of oversized equipment. Charlene Elliott, an assistant professor at the University of Calgary who researches obesity, was not aware of these specific cases, but said it is interesting to consider "ways in which society’s attitudes on obesity play out differently depending on whether the obese individual is an adult or a child."

"If you examine both the media and societal framing of obesity, you will observe a consistent shift in terms of responsibility depending on who is obese. Adults are considered to be responsible for their own bodies [and body size] whereas children are framed as vulnerable – ‘victims’ of adult decisions and, therefore, not responsible for their size," she said.

She said this attitude is why, in the context of childhood obesity, there are "all sorts of social engineering remedies playing out," such as policies intended to make the environment more healthy for children, including the lobbying to extend the ban Quebec has on television advertising to children under the age of 13 to the rest of Canada, the banning of sugary sodas in elementary schools, and the mandatory 20 minutes of physical activity in schools.

"My take on this is that obesity should be treated no differently than other cases where conditions can lead to limited fitness to parent," said Dr. Arya Sharma, chairman for obesity research and management at the University of Alberta and scientific director of the Canadian Obesity Network. "Obesity is not a moral failing or necessarily always a lifestyle problem ? One has to very specifically look at the causes of obesity – these can be varied, ranging from genetics, mental-health problems, medications and other issues that may be difficult to control. [In the case of parenting] with the exception of extreme cases, where severe obesity may result in physical limitations to actually look after the kids, in itself increased body weight does not necessarily translate into inability to parent."

Mr. Birnboim, the lawyer in the Newmarket custody dispute, said the ruling was significant because it swept aside "the prejudices about obesity" to try to consider the overall condition of the children.