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Debating court intervention into parenting of transgender children

By May 23, 2019February 23rd, 2024No Comments

A US state has controversially ruled that family law judges have power to intervene and insist on ‘necessary medical care’ for transgender kids irrespective of parents’ wishes. Family courts in Arizona can now “restrict custodial parents’ rights if they threaten the health or safety of their children”. Arizona judges can require parents to provide counseling, therapy and other expert help to children who may be transgender, even if one parent doesn’t support treatment, the state’s highest court ruled Thursday.

The Arizona decision has been praised by LGBTIQ activists in the US, “because of the clarity it gives family-court judges who might deal with similar custody cases involving gender-nonconforming children in the future”. The ruling is seen as affirming that the family court has the power to “craft custody orders that protect children from harm, including requiring a custodial parent to provide a gender nonconforming child with supportive counselling and care”.

The ruling would almost seem a no-brainer under the ‘best interests’ principle, which underpins American family law just as it does in Australia, since after all, children at risk of psychological or emotional harm for reasons other than being potentially transgender are often court-ordered into therapeutic programs; children are ordered to be taken to mental health professionals all the time, regardless of what parents might want.  Not only that, but courts can order medical care for physical illnesses despite what parents might wish. In Perth in 2016, a boy with cancer whose parents were ideologically opposed to conventional treatments, was ordered to undergo chemotherapy and radiation.

But the Arizona ruling is being explained as significant due to the fact that it clarifies that “[t]he courts can only intervene when a child would be ‘at risk for physical danger or significantly impaired emotionally’ without access to those services — a higher standard than the ‘best interest’ test often used in family-court cases”. It is also being said to be a litmus test of how family courts in the West might respond to custody disputes between parents who disagree on how to respond to a child with gender dysphoria and potential transgender.

In the current case, a mother had “embraced the idea” of her child being transgender but the father hadn’t. The father was granted primary custody with the court ordering that the father continue to take the child to their current treating therapist. In addition the judge appointed an expert on transgender children’s mental health to advise the parties and court. The father then appealed those orders, saying the court did not have the authority to make them. He was successful in having the decision reversed, with the Arizona Court of Appeals agreeing that family law judges can’t require that a custodial parent provide counselling for a child or appoint a particular counsellor.

This was appealed to the state’s Supreme Court, which unanimously found that Arizona law did actually authorise the family court to “limit a custodial parent’s authority to protect a child from physical or emotional harm”, depending on the circumstances of a case.

“[R]efusing to retain particular therapeutic services could justify an order requiring such services if refraining from doing so would endanger the child’s physical health or significantly impair the child’s emotional development,” said the judgment.

The ruling asserted that courts must not to try to micromanage or “unnecessarily intrude on the sole legal decision-maker’s unshared authority to make major decisions concerning the child’s upbringing, even if those decisions conflict with expert opinion or the court’s own views on childrearing.”

Family law solicitors in the US say it’s about providing more guidance for the state “about when to issue orders limiting a custodial parent’s authority and about the need to tailor such orders carefully, based on the specific circumstances in each case”.

Here transgender people continue to fight for equality. There have been some victories, such as recently seeing Western Australian law updated to ensure transgender people who are married can change their birth certificate without divorcing. But there have also been disturbing setbacks, such as in the political arena, watching conservative politicians like Mark Latham from One Nation electioneering on the platform of outlawing the ability to identify as transgender.  On the other hand, recent days have seen Labor pledging $6 million towards promoting ‘LGBTIQ equality’.

Do you need help with a family law matter? Please contact Canberra family lawyer Cristina Huesch or one of our other experienced family law solicitors here at Alliance Legal Services on (02) 6223 2400.

Please note our blogs do not constitute legal advice. For information on how to obtain the correct legal advice, please contact Alliance Legal Services.

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