TODAY | January 02, 2012
>>> back now at 8:11, childhood nutrition and obesity are getting a lot of attention, from school cafeterias to grocery stores and rightly so. should a child 's weight and diet be used in custody disputes? nbc's john yang has the details.
>> reporter: when conan angus filed for divorce from his wife in 15 years they couldn't agree on custody of their children, aged 10 and 6. conan argued they'd be better off in his rural home.
>> it's a natural area, when they first moved out here, dad, we live on animal planet .
>> reporter: he also provides the children with a healthier diet.
>> without trying to hurt anyone's feelings, i didn't think they were getting what they were supposed to before.
>> reporter: the children's mother denied her husband's claim that he'd provide a healthy environment. she declined to be interviewed. a judge ordered a temporary arrangement, children live with their father during the school week and with their mother on weekends. angus's attorney says it's impossible to know what role nutrition played in the decision but said the issue is being raised more often.
>> it will be becoming more and more involved in custody disputes.
>> reporter: reflection of the growing concern over childhood obesity and diet. according to the centers for disease control , about 17% of children aged 19 and younger are obese. that's triple the rate in 1980 .
>> it's truly about the health and well-being of a child . is a parent taking that child and stuffing the child full of fast food ?
>> reporter: when awarding custody, judges have to decide the best interests of the child , among the factors weighed, the home environment, the quality of the school, the child 's wishes. analysts say nutrition should only be a deciding factor in extreme cases when the child is malnourished or grossly overweight.
>> we don't want to say they can't have a cookie, we don't want to say they can't go out and have things that kids want.
>> some liken it to the rise of arguments about secondhand cigarette smoke in custody cases about 20 years ago, another weapon for one parent to wield against the other as societies concerns evolved.
>> coa noncustodial parent grab and make it an unfair weapon, sure. but in the end as we look at what's happening to our children, maybe it's a weapon that ought to be used.
>> if it's in the best interests of the child . for "today," john yang , nbc news, antioch, illinois.
>> wendy murphy, former prosecutor and child advocate and gail saltz,editor. how often are we seeing weight and nutrition factor into the child custody disputes?
>> more so now than ever before. it's likely courts have been reluctant to make judgments on what i would describe as deeply personal issues in the family. it's really about adequate food, adequate shelter, adequate shelter as they go into school, to pride too much further into what's on the dibnner table has been perceived in the law as a breach of family privacy but because obese nit childhood is growing as a major public health problem, we're seeing judges willing to take that extra step.
>> gail , what do you think more and more often parents are going that route of claiming i'm betting off for my child , they're going to be healthier in my care? why is this happening in.
>> emotionally, this is the stuff that divorces are made of. when you feel rejected, when you feel lost, when you feel hurt, you want to justify and defend your position, you are the better parent, you are the better person. they're the bad person. it's okay if you split from them and unfortunately that comes to bear often in a custody case. you don't want to have to share your child . some may want to punish the other parent, and so this is potentially one more weapon which is unfortunate, because it goes together with eating, and --
>> it hurts the child psychologically, emotionally?
>> exactly. you're talking about obesity, it's already stressful in a divorce situation and you add to that becoming about food and food potentially being a weapon you could instigate other eating programs, overeating or frankly undereating in an attempt to stay with the parent being threatened with this.
>> this is a slippery slope for the courts, where you mentioned it is extremely personal. how do you really monitor what a parent is giving to a child when it comes to nutrition or what kind of care they're giving?
>> some of this is just not possible. you can look at a seemingly normal sized child , and not really know whether they're getting a healthy diet , and you know, certainly the most obvious sign of trouble is a severely obese child and you have to be careful not to let this become which parent has more money. often --
>> because this will definitely go that way, where people don't have access to the organic foods or they can't afford them.
>> that's right, but courts are not allowed to side with the parent that has more wealth. to be fair, you really have to be sort of blind to who's got more money to provide that diet but we know that starchy, sugary foods are cheaper and those are the kids that tend to be obese.
>> but those children would be pre-disposed to being overweight, they may need medical intervention which also may cost money or maybe a matter of education, more education about nutrition and about the kind of medical care that a child who has a propensity toward obesity.
>> what i like about this is that in a sense parents competing to be the better parent, may really ramp up their own skills in the kitchen, and i like the competition here.
>> gail is shaking her head no.
>> i don't.
>> because you feel the child is caught in the middle ?
>> i feel the child is caught in the middle and every parent needs to aspire to become a good parent. when it becomes a competition the claws come out and parents need to be coming together for the betterment of the child , trying to mediate, have it be not --
>> i need them to cook healthy foods.
>> not about going at each other's throats, i'm better than you. when it comes down to where the courts can intervene and how they're doing this, we have seen two high profile cases, kids were taken away from social services from their parents, morbidly obese , placed in temporary custody with other family members to see if that makes a difference. when do the courts decide this is a case that deserves extreme measures ?
>> the cases we're comfortable with so far and can tolerate that encroachment into family privacy which is a constitutionally protected area . the cases that have been acceptable so far in the courts have been those where it's pretty apparent the child is both overweight and likely has other issues.
>> so it's created a lot of outrage socially.
>> that's right, it's hard on the child emotionally to go to school and be teased. we want the court to intervene. the government's intervention is likely to be good from the child from his physical health and emotional health , ability to get along with his peers and so forth. it's worth it. it's an intrusion into family privacy that's worth it.
>> we have to leave it there. wendy murphy, gail salttz, thank you so much. now