Court of Appeals Paves the Way for Transgender Treatment of Transitioning Child
Unpublished opinion issued April 4, 2024 (Cavanagh, P.J., Madonado, J.J; Jansen, J.J. dissenting)
Court of Appeals Docket No. 367366
Per curiam, with dissent.
Lisa Schmidt of the Speaker Law Firm represented the Appellant-Mother.
Holding: In a post-judgment motion based on a father’s non-compliance with medical recommendations to treat the child’s gender dysphoria and suicidal ideation, the Court of Appeals found that there was proper cause to reconsider custody and “no factual basis supporting the trial court’s decision” to maintain joint legal custody and unrestricted parenting time.
Facts: The parties are the parents of a child identified as male at birth. The child began demonstrating a female gender identity as a toddler and in third grade informed her school that she preferred a female name and pronouns. The father had eventually allowed the child to transition at school on the condition that he would continue to treat the child as male in his home.
Beginning in November 2022, the child began experiencing suicidal ideation triggered by parenting time with her father. Over the next several months, the child repeatedly reported suicidal ideation at school, went to the emergency room three times, and was admitted for inpatient treatment. The father refused to take the child to the emergency room, allow psychiatrist evaluation, or participate in out-patient therapy.
The mother filed several motions for sole legal custody, to suspend parenting time, and to pursue medical treatment. At the evidentiary hearing, she presented two experts: an endocrinological social worker and a psychologist. They established the medical need for treatment of transgender children experiencing gender dysphoria and the negative effect of a non-supporting parent on the child’s risk of suicidal behaviors.
The father called the experts’ opinions “subjective” and disagreed based on “common sense.” He asserted that a 10-year-old was “too young” to make these kinds of decisions. He did, however, agree to let the child decide whether to exercise parenting time with him.
The Trial Court did not believe the mother had met the threshold to reconsider custody, saying the child’s gender identity was not a new issue. It said the father was “trying to ignore” the child’s gender dysphoria and recommended (but did not order) that he use the child’s preferred name and pronouns. It denied the mother’s motions and said the parties would need to agree on medical interventions.
Key Appellate Rulings:
The child’s mental health crisis was proper cause, even if it wasn’t a new issue.
A motion to modify custody must be based on “proper cause or because of a change of circumstances.” MCL 722.27(1)(c). The Court of Appeals agreed that the child’s gender identity was not a new issue and therefore not a material change in circumstances. However, the child’s escalating mental health issues and the parties’ inability to agree on treatment created “undeniable” evidence “that the current arrangement is not working, and this is proper cause.”
The child’s suicidal thoughts did not destroy the father’s established custodial environment.
The burden of proof for a post-judgment motion to modify is established based on whether the proposed change would modify the child’s established custodial environment. Pierron v Pierron, 486 Mich 81, 85; 782 NW2d 480 (2010). This means the parent to whom the child looks to “for guidance, discipline, the necessities of life, and parental comfort.” MCL 722.27(1)(c). The Court of Appeals disagreed with the mother that the child’s statements and mental health condition demonstrated no established custodial environment existed with the father. The Court said that the father had been exercising parenting time regularly and consistently met other needs even though he was not supportive of the child’s transition, showing an established custodial environment.
Ignoring medical recommendations is against the best interest of the child.
The Court of Appeals next reviewed the best interest factors in MCL 722.23, particularly (c) as to the child’s medical needs, (i) the child’s preference, and (l) where it considered the child’s gender dysphoria. The Court of Appeals said that the father’s refusal to facilitate medical treatment or take medical advice, even during the trial, “suggested that defendant-father lacked insight into the sources of the child’s mental illness.” His unwillingness to consider his own role in the child’s mental illness led the Court to conclude “the only rational view of the evidence mandates a conclusion that this factor should weigh heavily in plaintiff-mother’s favor.”
The Trial Court had minimized the child’s preference under factor (i) because it could not be stated on the record. The Court of Appeals found this was not an abuse of discretion since the Trial Court had interviewed the child and considered her opinion, including adopting her preferred pronouns.
The Court of Appeals said the child’s gender dysphoria was properly considered under the catch-all factor (l), saying “this factor should have weighed heavily in favor of plaintiff-mother.” The Court of Appeals relied on the experts’ testimony and the fact that “defendant-father made it clear that he was not willing to budge” on positions “directly contrary to expert testimony.”
The Court of Appeals also said that “the evidence irrefutably established” the parties’ inability to agree on medical care. It found the Trial Court’s instruction for the parents “to find ‘a middle ground’ was indefensible. The court had no choice but to grant sole legal custody…”
Parenting time should be restricted, not suspended.
The Court of Appeals also considered the Trial Court’s decision to let parenting time remain as previously ordered based on MCL 722.27a. It held, “The only conclusion that can be reasonably supported by this record is that parenting time with defendant-father was actively harming the child.” However, the Court did not believe a full suspension of parenting time was required, but said leaving the parenting time “wholly unchanged, on this record, was indefensible.” Instead, the Court said the father should be required to follow the medical advice regarding the child’s name, pronouns, clothing, and hair.
The Court of Appeals reversed the Trial Court’s order and directed that the mother shall be awarded sole legal custody and the father’s parenting time shall be restricted to require him to use the child’s preferred name, pronouns, and gender identity, with immediate effect.
Judge Jansen’s Dissenting Opinion relies on Trial Court’s decision.
Judge Kathleen Jansen wrote a short dissent. Her position was that the Trial Court had required the parties to attend six counseling sessions and a previously-scheduled endocrinologist appointment and going further was premature. She would have affirmed the decision.
