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....
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.
Indiana lawyers out there: am I correct in understanding that an "unpublished memorandum opinion" in Indiana, as this one here is labeled, is the same as an "unpublished" opinion in California, i.e., you can't cite it as precedent or authority?
Is "unpublishing" discretionary? Can "publication" be requested?
Kids have to put up with lots of stuff they don't like, starting with spinach and homework. That a parent has an oddball friend is hardly an indication of child abuse. If it were, is any of us unabused?
If, for sake of argument, the mother's friend was a double amputee whose physical appearance freaked the kids out, embarrassed them in front of friends, etc., is there a court that would rule she must abandon the friend or lose the kids? Transgendered people are recognized as a special class under ADA, as are amputees. While ADA does not pertain to child custody cases as a rule, it does serve to indicate where society stands on the issue. From that, it appears that the father and lower court are standing outside the mainstream.
By agreeing to stop forcing this association she tacitly agreed it was not essential for full child development and put into question her motives for subsequent action.
Had she discussed or announced in advance her chanage of mind, and the counseling to her ex, she would have some credibility that the association was something she considered important to her children's development. Her failure to keep her word and unilateral action without consulation can be taken as tacit agreement that she knew she was out of line. That strikes me a good reason to consider change of custody.
There was no presentation that the father had ever failed to keep his word and by this point the children preferred him, so, if we value integrity custody goes to the father.
Imagine that the mom is a single parent, dad died years ago, and she's pals with a transsexual.
Is there a court in the country that would take her kids away?
So why is a divorced parent subject to such a penalty?
At the risk of sounding like a former president, I'd say that it depends on the meaning of "this." It would be foolish to consider the mere fact that the mother wanted the child to associate with a particular person, or type of person, save in extreme cases (Mom joins the Klan, say). But the mother's insistence on forcing the child to associate with someone she didn't want to associate with could legitimately be a factor--either way, depending on the circumstances. For instance, suppose a child doesn't want to associate with a particular sort of person for some bigoted reason; Mom insists that the child get over it. Points for Mom. On the other hand, if the child has a legitimate reason for not associating with someone and Mom refuses to consider the child's aversion, points against Mom. What makes this case seem hard (apart from the fact that I don't have a good sense of what's really going on) is that the child's reluctance sounds from the quoted passages like it derives from peer pressure. I don't think there's any good general rule for that one. Peer pressure is real, and important, so even if it stems from irrational biases on the part of the peers I'd think it should be considered, but not to the extent of making the parent give up seeing a good friend. The court's apparent willingness to distinguish between seeing Mom's friend at home and being seen with her in public places seems to reflect this awareness In the end, the court has to make a judgment about the character of each parent, taking into account all the circumstances. This doesn't lend itself to rules.
So, sure, the court can "consider" things like this, just as it can consider whether Mom is forcing the kids to go to a church that makes them uncomfortable, or one she promised not to send them to, etc.
At ages 10 and 14, most children are allowed to testify as to their opinions -- subject to cross-examination to ensure that those are the children's opinions and not mere reciting of what Dad or Mom has told them to say.
Here, obviously Mom knew what was at stake. For a few months Mom even continued to see her friend out of the presence of the children. However, for whatever reason, Mom decided that her relationship with Galen was worth putting custody at risk, and decided that she'd have Galen around the children -- and apparently Galen was willing to go along with this, and so at least abetted Mom's decision to put custody at risk.
As adults, we're allowed to choose who we associate with -- and to choose to not associate with (and I have some friends who are fairly odd -- which is why I find them interesting). Within limits, children also have the same right. I never exposed by children when they were minors to my odd friends, since I never confused my children's best interests with my personal decision to decide to associate with some people who are interesting to me, in part because they are "odd." Deciding what are in a child's best interests puts obligations on the custodial parent to consider more than "I think I'd like to do it." In this case, Mom made a different decision than I did. Mom decided to put custody at risk, and lost custody. Mom can continue to see Galen, and continue to see her children during visitation. But, she risked and lost the power to decide to make her children associate with Galen when they don't want to. I think that it's Mom, not the children, who has to "suck it up" in this case.
This is absolutely a fact-driven matter involving the Court's discretion more than the law.
Telling a 10 year-old that his/her fears are groundless, and to suck it up, is all too easily the worst thing to do, but it could also be the best thing to do. It depends on the child. Kids of the same age can be wildly different in maturity, in nameless dreads, etc.
This is why we have judges and judicial discretion. Appellate courts, legislatures and law professors should remember that.
That's not a legal opinion, just an opinion
Saying that it is fact-driven is just a way of letting judges make decisions that they cannot justify. This is an example of why judges should NOT have such discretion.
And where does it say that people are prohibited from making their workplace an intimate setting?
Best,
Ben
Why should a person be forced to associate with a trans sexual any more than someone who had tattooed obscenities on their exposed skin, dyed their hair fluorescent purple or smeared themselves with skunk oil. Where does ADA begin and end on this?
The mother seems to be forcing a value or person on her children. My experience is that this rarely if ever works. Continued attempts to do this could be evidence of a lack of understanding of how children develop. Can a judge use that in making a decision?
I'd also like to second the complaints about the 'Best Interests Of The Child' standard. Apart from substituting the court's value for judgmnent for the parent's value judgment, a more fundamental problem is that everyone's interests should count equally. Here, if the children have any interest at all in getting their wish about not being seen with a transgendered person, the magnitude of that interest is small compared to the magnitude of the parent's interest in being able to spend time with their partner and children. The court may need to weigh competing interests in hard cases, but it cannot disregard the interests of parents altogether, which is essentially what the 'Best Interests Of The Child' standard suggests.
We really don't know whether the parents could have figured this out themselves. We only know that the court was willing to intervene when one parent asked the court to intervene.
Aren't parents supposed to teach their children values?
Judges try very hard not to make such decisions. This is why they so often force the parents to make any kind of agreement. It sounds like the judge here acted only because the parents would not agree.
In this particular case, I think a 14 year old boy may have a really hard time dealing with the issues of transgender. At 14, kids are struggling to deal with their own sexual development, and I don't think they should be required to try to deal with anyone else's sexual identity issues. It is unlikely that a 14 year old would be comfortable discussing his feelings about sexual identity in court, if he was even able to articulate his thoughts. Instead, he would report being "embarrassed" and talk about what his friends said. Yes, kids should learn to accept people who are different and should learn to resist peer pressure, but parents should not force kids into situations that they are not emotionally, developmentally prepared to handle. I think mom pushed too hard, and created a bigger problem by trying to hide the visits and the counseling.
I'm not an Indiana lawyer, but I did take the Indiana bar today and have written appeals in the state as a paralegal. Yes, a memorandum decision is unpublished, can't be cited for anything other than res judicata, but can be published by request of one of the parties.
The Indiana Court of Appeals releases a huge amount of memorandum decisions, even in cases such as this that "involve[] a legal or factual issue of unique interest or substantial public importance," which is one of the three criteria warranting publication. I mean, it's obviously of public importance if Prof Volokh is discussing it, right? (I mean that seriously with no unintended internet sarcasm).
In all seriousness, the had joint legal. Mom unilaterally engages a therapist for the kids and then doesn't let Dad know what;s going on. In San Diego, that's pretty much setting one's self up for an ass whupping by the Court, regardless of the forcing kids to be with the transgendered friend.
And as to the question as to age, California uses a standard of being able to make mature opinion. Thus, some dumbass sixteen year olds have been ignored but precocious eight year olds are taken seriously.
Why is it supposed that First Amendment Constitutional rights such as freedom of association have Drittwikung?
It seems to me that most if not all of the rights in the US Constitution are negative rights or generally rights as regards the government, not ptivate parties.
Therefore using constitutional law arguments in disputes like this one (parent v. parent) seems inappropriate to me.
Not that one cannot use the Constitution as a source of ibspiration, but directly borrowing arguments about constitutional rights?
Is US Constitution a "law" in the context of disputes between private parties?
Sure, this is not a purely private duspute, at least not a dispute about pre-existing private right, but about judicial interference in private affaires ("спорна съдебна администрация на гражданските отношения" is the term we use in Bulgaria, something like voluntary jurisdiction, where there is more then one party seeking from the judge a decision favorable to itself and disfavorable to the other party, based not upon a subjective right it has vis-a-vis the other party, but upon the discretion of the judge, exercised in accordance with the law).
Still, I am not confortable with turning every dispute into a dispute about Constitution and rights protected thereby.
Therefore using constitutional law arguments in disputes like this one (parent v. parent) seems inappropriate to me.
When parties to purely private disputes seek the aid of the courts, they invoke governmental power, and exercises of governmental power are subject to constitutional limitation under what is known as the state action doctrine. Actions by the courts--exercises of judicial power--are as much state action subject to constitutional limitation as actions by the two other branches of government, the legislative and the executive. That is why, for example, common law (nonstatutory) libel suits between private parties are subject to first amendment limitations although neither the legislature nor the executive branch has had any role in the dispute. See New York Times Co. v. Sullivan, 376 U.S. 254 (1964).
The classic example of judicial involvement in a private dispute as state action is Shelley v. Kraemer, 334 U.S. 1, (1948), holding that the courts would violate the fourteenth amendment's equal protection clause were they to enforce racially restrictive covenants governing the sale of real property. Parties to such purely private agreements may voluntarily abide by them consistently with the commands of the Constitution. But once a party calls on the courts to enforce such a covenant, they invoke state action, and state action is subject to constitutional restriction.
"Mom makes me go shopping with her, and I find it emotionally traumatizing to be seen by my friends in public with someone who is such a total dweebazoid from another planet. Daddy lets me go buy clothes at the mall by myself. I want to live with Daddy."
I'm very much inclined to agree. This strikes me as similar to cases where a parent's same-sex intimate relationship is at issue. The other parent may not approve, the children may be uncomfortable. But discomfort with the nature of the relationship as such is not sufficient to base a custody decision, whereas findings about how the relationship is carried on, how the partner acts toward the children, etc. would naturally factor into such a decision.
While I appreciate this thoughtful post, I take issue with the use of male pronouns to describe the transgendered woman referred to in the case. Although the opinion is less than clear, it does indicate that this woman made a transition from male to female. It has become the generally accepted practice among courts, as among journalists, to refer to individuals who have transitioned by the gender they live and present as.
With regard to the ADA comments, the federal statute actually explicitly states that being transgendered is not a "disability." Without this exception, the statutory definition would very likely be treated as including it, and therefore it is not surprising that some state disability laws have been so interpreted. As to the voluntariness issue, this is really no different than the argument over whether being gay and having same-sex relationships instead of different-sex ones is a "choice." Even if it were an important question (I don't believe it is), the answer would be, as a functional matter, no. While gender transition is "chosen" in a strict sense, the balance of medical and social-science research tells us that it is the best adaptation to a discordant gender identity, which is clearly not chosen. One often "chooses" to become an amputee in an analogous manner; it is the best medical choice in a difficult situation.
That's an interesting analogy. How does the choice to transgender oneself really compare to the choice between amputation and death from spreading infection or necrosis?
If this is what the law states, it's an example where legal fictions don't match very well how human beings behave. A real life parent, faced with a situation where doing something that benefits a child would result in a loss of custody, might stop doing it. That doesn't mean that the parent no longer thinks it's good, it means that real life means making compromises, and that a loss of custody is a big enough thing that a parent may do things that are against the interests of the child in a relatively minor way in order to avoid it.
Clinically, the alternative to gender transition is often a high risk of depressive and/or anxiety disorders and of suicide. The truly curious should consult the international standards-of-care manual for treatment of gender dysphoria, available in PDF at: http://www.wpath.org/publications_standards.cfm
One can argue how strong/close the analogy is, but I think the basic point remains: transition is a choice, but one typically made in the face of bleak alternatives.
When parties to purely private disputes seek the aid of the courts, they invoke governmental power, and exercises of governmental power are subject to constitutional limitation under what is known as the state action doctrine. Actions by the courts--exercises of judicial power--are as much state action subject to constitutional limitation as actions by the two other branches of government, the legislative and the executive. That is why, for example, common law (nonstatutory) libel suits between private parties are subject to first amendment limitations although neither the legislature nor the executive branch has had any role in the dispute. See New York Times Co. v. Sullivan, 376 U.S. 254 (1964).
The classic example of judicial involvement in a private dispute as state action is Shelley v. Kraemer, 334 U.S. 1, (1948), holding that the courts would violate the fourteenth amendment's equal protection clause were they to enforce racially restrictive covenants governing the sale of real property. Parties to such purely private agreements may voluntarily abide by them consistently with the commands of the Constitution. But once a party calls on the courts to enforce such a covenant, they invoke state action, and state action is subject to constitutional restriction.
Both of the examples you cited seems to me wrongly decided on the merits (though very appealing as results).
Was US Constitution intended by its creators to supersede or control the common law of private relations? It may be right, but makes me uneasy.
The same may or may not be true about the Civil rights Amendments. For example, if I am Southern white supremacist and in order to prevent a black person from voting handciff him or even kill him, can it be said that I am violating his Constitutional right to vote?
It seems to me I am committing a tort under general common law/private law of the state.
re: the "men-always-get-screwed" response:
while I think that is often the case, it is not the case here. The parties agreed to the custody and parenting time arrangements in 2002.
The most unconscionable thing here from a lawyer's standpoint is that it took a whole year between hearing and trial court decision.
It has now been 2 1/2 years since dad filed his petition to modify, and the thing is still not done, and will not be done any time soon.
the comments that employ the notion of child abuse as an element of the proof of the case are ill-founded. A modification can be granted on much less than evidence of abuse.
Now that dad has had the children for almost an entire school year, it might be a fait accompli where the best interests lie. And the substantial change may be that they have established themselves with dad (even though they are with dad because of a clearly erroneous court ruling).
Roger, where I practice, Judges need a reason to dismiss properly filed claims and "I don't wanna make a decision" doesn't cut it. Can you cite authority where that does work?
I dunno about the courts, but it's news to this newspaperman that journalists have generally accepted such a practice.
I understand the chief "transition" but...
Curious, how are the chromosomes changed?
The AP Style Book says: "Use the pronoun preferred by the individuals who have acquired the physical characteristics of the opposite sex or present themselves in a way that does not correspond with their sex at birth. If that preference is not expressed, use the pronoun consistent with the way the individuals live publicly."
Perhaps it is wrong to generalize from the AP Style Book. I may have wrongly assumed this guide is representative of best practice because that is how it works in some other disciplines/professions. But certainly it suggests that this is regarded by many as the best practice, even if it is often not followed.
You don't seem to have ever practiced family law.
Note also that the children are no longer 9 and 14. Children change fast as they are growing up. Apellate rulings on the best interests of childen are almost always obsolete as written for the children involved.
When it comes to friends, assuming there's no issue about potential danger to the kids, you have to let the parents pick their friends regardless of what the children think. My choice of friends is an important part of transmitting values and education to my children. I want them to be around the people I have chosen as good exemplars or from whom they might learn something about life. If the kids don't always agree with my choices, it's not up to the courts to intervene unless there's some reason to believe the children are at risk of harm. If she can't expose them to a transgendered friend, especially in public, is it okay for her to play Culture Club songs in the car while driving the kids and their friends? Can she wear a t-shirt with, uh... (showing my pop culture ignorance here) pictures of RuPaul on it, when picking them up at school? The kids might not like this.
Shielding children from deterimental conduct by their parents is the easiest part of a family law judge's work. The heartbreaking cases are what to do about two reasonable parents who have mutually exclusive plans for their children.
The mechanism for decision making must be Hippocratic -- first do no harm. That usually means preserving the status quo unless the status quo is deterimental.
An initial custody order (assuming the parents do not agree and force this issue on the Court) has to be based on the best interest of the children. There can be no other standard. If the parents abdicate their responsibility to work together for the best interests of their children, then they get stuck with the bureaucrat's (judge's) opinion. Which will always be based on CYA principles and attempts to impose a "one size fits all" remedy.
After this first intrusion into the family dynamic for an initial custody order, Courts should be reluctant to intrude again absent a "substantial" change in circumstances, which should be equivelent to a detrimental impact on the child if not remedied by the court. Otherwise the status quo should be the Holy Grail of custody policy.
Using status quo as standard is really a kind of estoppel argument. The court and both parents relied on facts in place back during the initial order. If those underlying facts have changed so substantially, then the premise for the initial order is subverted.
Be scared, be very scared, of any family law judge who "just wants to help the children."
The best family law judges hate custody litigation, they have an attitude best expressed as: "I (the Court) don't want to be making decisions about the most intimate details of raising your children. But if you force me to, I will, and then God help you when your children find out (when they become adults) that one or both of you were such incompetent parents that a stranger (like me) had to make the rules for raising your child."
It also goes without saying that a parent's value system that is objectively harmful to the child can be forbidden. [e.g., Mom has joined the Jim Jones Cult and wants me to drink his special Kool-Aid]
Turning to the facts of this case: Mere discomfort or even embarrassment is not detrimental to children. Even outright rejection of a parent's value system should not form the basis for a change in custody. The child's rejection of the parent's values is not a change of circumstance. Children are supposed to challange (and sometimes reject) their parent's value systems. Its called growing up.
Children from intact families must endure Catholic School, Bible Camp, Hillbilly relatives and Geek Family Reunions, why shouldn't children of divorced parents be subjected to the same right of passage?
Unless Mom's transgendered friend was a child molester, or had physically abused the children in some way, or was disparaging the Father, or engaging in some other objectively demonstrable harm, it is a non-issue with regard to custody. The possibility of mother's transgendered friends, gay friends, amputee friends, muslim friends, Canadian friends, lawyer friends, is all forseeable on Father's part. Her friendships with these people do not constitute a radical change of Mother's value system. The children's attitude towards them is irrelevant to a custody proceeding.
On the other hand, if mother is ramming this issue down the children's throat, she is liable to lose contact with her children when they might need her most -- when they turn 18. [i.e., when the court loses custody jurisdiction.] If she alienates them, she will suffer the consequences of a long absence after they strike out on their own. But how is that any different from the child of an intact family who rejects the biblical teachings of his mother and father and takes off or New York or L.A. to become an actor/writer/lawyer, etc... against his parents wishes?
The Court reached the right result.