I'm not sure what the right answer ought to be here, but I thought it would be worth discussing; the case is Lowhorn v. Lowhorn, 2008 WL 2839485 (Ind. App. July 24). The trial court switched custody from mother's having primary physical custody (with father having visitation rights) and both parents having joint legal custody, to the father having sole legal and physical custody, with mother having visitation rights. At the time of the lower court hearing, the boy was nearly 14, and the girl was nearly 10. Here is the heart of one of the issues:
Mother also challenges the trial court's findings regarding her relationship with Galen, Mother's friend who transgendered from male to female. The trial court found:
19. Mother has consistently subjected the children to be publicly scrutinized and embarrassed by forcing them to regularly spend time with Mother's friend, a middle-aged male to female transgendered person.
20. Despite the children pleading with Mother that she not force them to be around this person, Mother continues to subject the children to being seen with the person in restaurants, in front of their friends, and at the children's extracurricular activities.
21. [When] Father learned of Mother's behavior from the children and saw the harmful effects the same had on the children, he confronted Mother about the same.
22. During the confrontation, Mother admitted to the foregoing and promised she would never allow the children to be around her transgendered friend again.
23. Subsequently, [mother], also concerned about the children's discomfort and confusion with her transgendered friend, admits to taking the children to a therapist, Erin Hamilton, without consulting [father] or providing him with any information regarding the children's confusion prior to the children's disclosure to him.
24. Dr. Richard Lawlor stated in his custody evaluation that he did not think Diana's unilateral choice of therapist was appropriate due to concerns that 'the particular therapist involved may have an agenda that would not seriously consider realistic concerns of the children'.
25. However, Mother has continued to subject her children to these circumstances repeatedly, despite the children's and Father's pleading.' ...
Mother has had a platonic friendship with Galen for several years. Father described Galen as 'a super nice guy.' In August 2005, Father learned that Galen had transgendered from male to female. There was no evidence presented that Mother subjected the children to being seen with Galen while he was dressed as a female in restaurants or at the children's extracurricular activities. Moreover, the evidence demonstrated that the children's friends saw Galen while he was dressed as a female only one time when Mother and Galen picked the children up from Father's house.
Father testified that the children were 'embarrassed.' After Father confronted Mother about Galen, Mother agreed that she would not 'have the kids around ... Galen.' For a few months, the children had no contact with Galen. Now, the only interaction between the children and Galen is when Galen comes to Mother's house for dinner two or three times a month.
The trial court's finding that 'Mother continues to subject the children to being seen with the person in restaurants, in front of their friends, and at the children's extracurricular activities' is clearly erroneous. Rather, the evidence demonstrates that, after the children's concerns were brought to Mother's attention, the children had interaction with Galen only a few times a month for a private dinner in their residence. There is no evidence that the children's occasional interaction with Galen during private dinners is harmful, and the evidence is simply insufficient to demonstrate a substantial change to modify custody....
We also note that an extensive custody evaluation was performed by Dr. Richard Lawlor and submitted to the trial court. Dr. Lawlor noted that '[t]here is no psychological research to support the finding that involvement with transgendered individuals is of any risk to children. The only harm that would likely come to children would be from the children's reaction to that situation.' Dr. Lawlor's impression was 'that the children's current negative reactions are actually a combination of their own confusion and spontaneous reactions; as well as their father's somewhat shocked approach to the whole situation. Their reaction also flows from their mother's overly aggressive approach to trying to make sure both children grow up unprejudiced.' Dr. Lawlor believed that a change in custody was not an appropriate remedy to the situation. Rather, Dr. Lawlor recommended counseling 'to try to sort out whether or not this situation can be resolved without a change of custody and with maintaining the current custody arrangement.'
Specifically, Dr. Lawlor recommended the following:
'Should the children's current discomfort flow primarily from within themselves and not from Brian, and I do think that their discomfort is a combination of Brian's conservatism and their mother's extreme liberalism, it may be that a custody change is warranted.
However, my impression is that at this point, the discomfort of the children is actually a mixture flowing from the reactions of both parents, as well as some of the spontaneous actions on the part of both of the children. For that reason, I think that rather than a change of custody at this point, the issues should be dealt with in a therapeutic way.... For the moment, I would suggest that a change of custody is not the best way to go, and I would strongly recommend going with some type of therapeutic involvement at this time.' ...
Had the trial court made [the] determination [that the children's dicomfort 'flowed primarily from with themselves' and not from Father] and a determination that the children were adversely affected or their emotional development was significantly impaired, its legitimate findings, including the strong desires of the children, may have supported its conclusions thereon and the conclusions may have supported the Judgment.... [But in the absence of such findings, we] reverse the trial court's grant of Father's petition to modify custody and remand for proceedings consistent with this opinion.
I've written in the past about how considering certain factors in child custody decisions violates parents' First Amendment rights. But this is a more complicated case, because it involves not just the mother's right of intimate association (a constitutional right that has generally been recognized as to family relationships, and likely would be recognized as to relationships with close friends as well), but also the children's: The mother isn't just associating with Galen, but putting children in a position where they should associate with him.
And while children surely don't have a legally enforceable right to refuse to associate with people whom both their parents choose -- just as I don't think they have a legally enforceable right to refuse to go to a church or a religious school that both their parents have chosen -- I'm not sure what the right answer ought to be when one parent offers one religion or set of friends, another offers another, and the children prefer one parent as custodian because of the religious practice or associations that this parent has. (I touch on this in note 203 of my article, but very briefly.)
This isn't quite what's going on here, since as best I can tell the children weren't specifically expressing a preference for father as custodian, but just apparently expressing a preference not to be around Galen when they're in their mother's custody. But I hope it shows the reason why I'm not sure what the right result ought to be.
So what do you think, not just under the somewhat peculiar facts of this particular case, but in others like it? Say we have two parents vying for custody. The children don't like associating with the transgendered people, lesbians, uncool people, disfigured people, fundamentalist Christians, Wiccans, blacks, or whites whom one parent invites over for dinner. (It may well be that the legal rules should be different for the different categories -- or maybe not.) The other parent offers an environment that the children seem to like more. Assume there's no serious threat to the children from the associates, nor any evidence of outright psychological damage stemming form the children's embarrassment -- just the sort of unease that people sometimes have, rightly or wrongly, from being around certain kinds of people.
Should a court consider this? Under what circumstances? What role should the child's age play?
Note that the usual "best interests" standard doesn't seem terribly helpful here, because it's not clear just how a court is to weigh the possible harm (whatever it might be) stemming from the child's unease or embarrassment against the possible benefit (whatever it might be) stemming from the child's learning to tolerate people around whom the child would otherwise be uncomfortable. Rather, the question seems to me to be what extent we weigh the child's emotional preference -- the child's (whether younger or older child's) interest in living in the environment the child finds more comfortable -- independently of what we think would be in the child's long-term best interests.