Dietary Concerns and Colorado Custody

By: Sarah T. McCain

When it comes to parenting, even the most in sync parents have different styles. This can become even more apparent while going through a divorce or Colorado custody case, when all of your choices are under a microscope. One area of parenting which can draw scrutiny for parents is the choice of meals given to children. Yes, “meals.” Dietary and food preference issues do arise in custody cases and over the years I have seen them. These types of issues can range from dealing with a dietary medical issue to a parent being just a little too concerned about one too many Big Macs eaten during the other parent’s visitation. The real legal question to be addressed is whether a Judge will see the same level of concern that on parent might have and take action based on that concern.

Firstly, it’s important to recognize the eating patterns that took place during your relationship or marriage. If the type of food provided is the same now as it was during the marriage, many complaints will not be taken seriously. The Judge or Court will question why it was okay then but not now. There may be a logical reason for the change in stance on diet and nutrition, but it will definitely need to be succinctly and logically explained for the Court to care. Judges are extremely wary of people raising concerns in custody case to make the other parent look bad, as opposed to them raising legitimate concerns tied into the children.

Secondly, the type of food provided to the children will have to be assessed in terms of it nutritional impact on the children and whether the food might be harmful. For example, the issue of a food allergy may arise. One parent ignoring a legitimate food allergy may certainly be a good reason to bring a dietary issue to the Court’s attention, whether on an emergency or regular basis. We all know that some children can have severe allergies to things such as peanuts and both parents should judiciously protect them. Realistically, however, most complaints of food provided by a parent will not rise to this level.

In the majority of cases in which I have dealt with a food issue, the complaints center on fast food or the high level of sugary foods provided to children. When this is the issue, it is going to come down to a case by case review as each individual situation is different. While many parents may believe that eating fast food even once is too much, the Court will likely not agree with that argument as a negative factor tied into the other parent’s parenting abilities. Conversely, if kids are truly eating fast food every day, perhaps multiple times a day, some Judges might raise an eyebrow and at least issue an order limiting fast food intake. I underscore the word “might.” A Court might take action if a child has a verified weight issue and is under specific eating instructions. Courts are generally more concerned about things like homework, safe environments, and a parent’s nurturing abilities. I do recall one case in which we caught a parent admitting, in writing, to providing sugary, caffeinated beverages to a young child just prior to returning the child to the other parent. The admitted intent was solely to get the child agitated so he or she would act up for the other parent. This is an example of where diet and bad parenting did collide and in which a court took immediate action. The normal food concerns I hear relate to disagreements as to quality of food, not safety.

Thirdly, in our current environment, in which organic, natural, and unprocessed foods are more and more common, a parent may be wondering whether they can hold the other parent to the same standard of providing ultra nutritious meals. The simple answer is, “no.” Generally, the Court is going to assume that both parents, as competent adults, are capable of choosing appropriate foods for their children. Simply because one parent opts to feed the children all organic or a vegetarian diet, does not necessarily mean that both parents are held to the same standard. If you are the parent choosing specific dietary guidelines for the children while the other parent does not, it’s important to keep the children out of the middle of any food disagreement. Shaming the other parent’s food choices to the extent that the children are unsure of what or if they should eat at that parent’s house may harm your arguments when it comes to parental responsibilities.

With years of practice as a Denver custody attorney under my belt, the best advice I can give people is to pick and choose their battles. Though the issue of diet tied into custody seems minimal, some people do raise legitimate concerns. Conversely, others raise issues of preference, which Courts are just not going to address. If you have dietary concerns tied into your children and the other parent you should absolutely raise them with your attorney, who will certainly assess the situation and inform you as to what might rise to the level of judicial concern and what will not. From there, you can make decisions regarding what food issues to raise, or not. Finally, keep in mind that raising an issue regarding your children’s food in settlement discussions is different from raising that issue before the court. As the saying goes, “it never hurts to ask.”