The court system is not ready for child custody disputes over gender-affirming care

The fight over how doctors should treat transgender children is threatening to tear apart an agreement between U.S. states over divorce laws that has kept the peace for more than a half century.

States generally work together to resolve child custody disputes and other issues that arise during divorce, with courts deferring to each other when necessary, according to long-established rules.

Medical care in general can often be a contentious issue in divorce. Parents who cannot agree on medical treatment often have to come to court to have this resolved. During the pandemic, there were many cases in which the court had to intervene when parents could not agree on Covid vaccination.

With disputes over medical decisions, occasionally, the court will give one parent tie-breaking authority; however, this must be exercised with caution and is only meant to prevent a delay in care for a child. Parents who abuse it — such as if they go against medical advice or fail to consider and have communications with the other parent altogether — may lose the ability to make unilateral medical decisions.

And if parents share joint legal custody in California and cannot reach on agreement on gender-affirming care for their transgender children, the legal system will have to step in. In past cases, courts have generally ruled that the parties should follow the recommendations of their doctors.

But a recent law signed by Florida Gov. Ron DeSantis could complicate matters. Among other things, the law allows judges in the Sunshine State to modify custody agreements from another state if a child is receiving gender-affirming health care, which it defines as a form of “physical harm.”

To give an example: Bob and Susan get divorced in California, and Susan is awarded full custody of their transgender child, who is on hormone replacement therapy. Under this new law, Bob could simply move to Florida and ask a judge to give him custody instead.

It’s too soon to say how this law will play out, but it could potentially bring custody battles back to a long-forgotten era of parental gamesmanship. Until 1968, it was not uncommon for a parent afraid of losing custody to put the kids in the family car and hastily move to another state where they thought the courts might be more likely to take their side.

To prevent these parental kidnappings, the states agreed to adopt a uniform set of laws that govern how to decide which court will handle a custody case, among other things. These laws were updated in 1981 and 1997.

Now that Florida’s new legislation has been signed into law, other Republican-led states may enact similar laws on custody of transgender kids. Some lawmakers may even be tempted to apply its logic to other hot-button topics, such as religion or vaccination status. That puts them on a collision course with more heavily Democratic states. Ultimately, if parents are in a state where they disagree with the medical care to be provided, they can now attempt to relocate or bring the child under the jurisdiction of a court that aligns with their point of view.

To return to our hypothetical couple: Bob succeeds in convincing a Florida judge to award him full custody of their transgender child. But Susan hires her own lawyer and convinces a California judge to refuse to allow the child to be sent to Florida.

What happens next? Even I’m not sure, because we haven’t been in this situation in decades.

Sooner or later, we will have a real case like this on our hands, thanks to this new law. The most likely next step would be for one side or the other to go to a federal court to decide to either enforce the custody order or rule against the Florida law.

Whatever happens there will likely be appealed, possibly up to the U.S. Supreme Court, since it’s a dispute among the states.

I’m a family lawyer, not a constitutional lawyer, so I can’t say what the nine justices might decide. It’s also possible that Congress could get involved and pass a law clarifying how these disputes should be handled (that seems unlikely, given the atmosphere around medical care for trans children), or that states might decide to update the Uniform Child Custody Jurisdiction and Enforcement Act to resolve it.

It’s also possible that things could get worse. Congress and the courts could duck the issue as states pass new laws that ramp up the tensions. Parents with custody in these cases might not be able to leave their home state for fear of losing their kids, and shared custody across state lines would become almost unworkable. Also, the burden on families will only increase as delays in court and times it takes to have the cases heard will already affect families that are going through immense upheaval because there is a custody dispute.

Whichever course of action the country takes, it will likely be years before the issue is definitively settled.

As a lawyer who has long worked on divorce and custody cases, that to me would be the worst outcome of all. From the moment a client comes in for an initial consultation, my colleagues and I are focused on getting their case resolved as fast as possible. We know from experience that letting these cases drag on just causes more stress, more heartbreak, and more tension for our clients.

And that’s just for a standard custody dispute, where a child may be waiting to see which parent will be their primary caretaker or what their schedule will look like as they go back and forth between two homes — a stressful enough set of questions for any kid.

If this Florida law succeeds in upending the current custody agreements between states, that child may be waiting in limbo for even more life-altering news: whether or not they can continue to receive gender-affirming health care.

This comes amid a broader national push among states to restrict transgender children from playing school sports, having their name and gender recognized in schools, or traveling out of state for medical care, which raises serious questions for federalism. States like California are presenting themselves as safe havens where people can come to get transgender care setting up a conflict with these laws, especially in custody cases, that aim to stop residents from leaving.

But red states aren’t content with keeping their laws within their own borders, and that’s going to create a conflict in family law and child custody.

In the meantime, Bob and Susan’s child will be left in medical limbo.

Alphonse Provinziano is a Los Angeles-based family law attorney, a certified family-law specialist, and a former deputy district attorney.