Celebrity Lawyer Discusses Gender Affirmation in Child Custody

[Source: Scripps News]

Celebrity lawyer Christopher C. Melcher, who is ranked as a best family law attorney in CA, weighs in on gender affirmation in child custody cases on Scripps News.

But back to Scripps News tonight, a law passed by the House and Senate in California will add gender affirmation as a factor to consider in custody battles. The bill pending the governor’s signature-it would make whether a parent affirms their child’s gender, a matter for the judge to consider the cases. Some existing factors already include the health and welfare of a child, history of abuse, what the childcare relationship looks like, and drug and alcohol abuse by parents as well.

Critics of Gender Affirmation

But critics have alleged the law will take away children from parents who either deny or just question their child’s gender identity, oppose them getting medical procedures, medicines, or surgeries. X CEO Elon Musk himself, the father of an estranged trans daughter, voiced a common criticism. He alleged parents will lose custody and described medical care for trans youth as ‘sterilizing your child.’

The long-term effects of puberty blockers and cross-sex hormones are still unclear. Some studies find fertility is effective in some patients but not in others. Also the bill asked judges to consider all of the factors we listed- not just gender.

The bill would not require a judge to side with the parent affirming their child’s gender and it does not block non affirming parents from having custody or visitation. Still, this is a notable change affecting an already thorny process of custody. Let’s bring in celebrity divorce lawyer Christopher C. Melcher tonight. He works in family law. He’s a top family law attorney in California.

[00:01:32]
He’s handled several high-profile cases, including those involving celebrities. Chris, would a judge in your experience feel comfortable in taking a child away from a parent if let’s say, for instance, they had reservations about their middle school child suddenly announcing ‘I’m a boy-I’m not a girl?’.  

“How would a judge interpret this law? It’s already been passed by the California legislature, but is yet to be signed by Governor Newsom. So he has until October 14^th to decide,” explains Christopher C. Melcher.

If Gender Affirmation Law Passes

“But if this is passed, it sends a very strong message to court that they not only need to consider it, but they really, really need to take this into consideration strongly when determining which parent is going to get primary custody and the other one’s going really be getting visitation and much less contact with a child. Now, courts already have vast amount of discretion and have to look at a wide range of factors like he noted and we leave that to the court’s discretion or good judgment,” states the international family law attorney.

“And these are highly specific factual circumstances that these families find themselves into. There’s no one-size-fits-all approach to these families. And of course, if a child has gender diversity or transexual intersects- if that’s going on, that’s obviously one of the factors and the court should correctly consider how that’s affecting the child, how each parent is supporting or not supporting a child. So sure that should be considered.

But the concern is that now we’re telling the court that this is some kind of super factor that could result in a child being taken away from a parent who even questions that decision,” explains the celebrity legal analyst.

Host: Let me ask you how they would consider it because families do have a right to privacy. Parents have rights. The state cannot come in and say you have to raise your child vegetarian because that’s actually better for them and that’s the responsible thing to do as a parent.  Is the state becoming too intrusive here?

Role States Have in Custody

[00:03:38]
“Well, the problem is that when parents can’t agree on custody, a court has to decide. This is a very scary thing for any of us through who are parents to go through.  

A judge has a decision to tell us when we can see our child, but that’s literally what’s at stake in a custody dispute in every case where the parents can’t agree and they have to surrender that to a judge. Now, certainly all these issues are at play and they should be considered. The problem is asking a court to put special attention on something and the way that this bill is written is saying that the court has to consider whether a parent affirmed it. And so the implication is that if a parent questions legitimately, ‘what’s going on with this child and what do they need and how do we best support this child if you if you legitimately question those things that a parent could potentially be punished by having their relationship reduced with that child. So that’s where I think the concern is coming from.

Not to say that the court shouldn’t consider it, but it’s kind of like what message are we telling courts when we enact a law like this?

Religious Liberty in Gender Affirmation

Host: What about religious liberty? Because I mean, setting aside any cases which, you know, may be a minority of someone who’s just being mean or ugly to the child. Someone who is a conservative Christian, a conservative Muslim or other faith and they don’t endorse gender transitions. Do they not have religious rights in the way they would raise a child?

[00:05:12]
Chris: “You raise great point because there is a fundamental right, a constitutional right that we have as parents to raise our children. Now, of course, if the families breaking up and the court has to allocate custody time between parents, then the best interest of that child prevails over pretty much everything else because we want to protect children. We want to make sure that they’re safe and happy. And so the court has broad best interest standard that we’re considering.

Gender Affirmation and Mental Health

 What the authors of the bill are saying is that children who are transsexual or intersex or gender diverse have been shown to have greater mental health problems or are at risk of suicide. I’m not saying that that’s directly from the authors of the bill and the author is saying that if a parent does not support that child, but that child is at risk of suicide. And so despite what the author is saying is that this is essentially a neutral factor… Just one of the things you need to consider when you read the what the author’s statement is basically saying if you don’t support this child’s decision or sexuality or gender, that you are now placing their health and safety at risk. And again, that may be true in some cases and there may be extreme cases where a parent has just been absolutely cruel to a child and that absolutely needs to be considered. But also, we as parents are expected to question things and talk about things and find solutions and we should not have our parental rights taken away just by asking questions and wondering what’s going on and what the best solution is for a child,” states the high net worth divorce attorney.

 Host:  I’ve been reading a ton of coverage and you do have one take. We do not want any child to die, but you do hear a lot of parents’ rights advocates say ‘if a parent wants to prioritize getting mental health diagnoses and treatments before moving on to this because, again, a lot of people who are going through this as young people…is that grounds for making them not look at the parent? That’s the
struggle. If this were to go to the Supreme Court, what you think that would say about that?

Chris:  “Well, you know, you raise a good point about the fundamental right of parents to make decisions. And honestly, I think that the Supreme Court would also look at the best interest of the child and how difficult these areas are. My concern is that we don’t always know what the child really thinks or wants. This is being reported to the court by the other parent. So we rarely put a child on the stand and say ‘what are you going through, what do you want?’

 We don’t want to put the child on the stand. So most of these cases, we have one parent saying ‘this is the gender or identity or expression of the child and this other parent is awful because they’re not supporting it.’ And there is now if this bill is passed, an incentive to manufacture a dispute like that. We’re now left with one parents’ word against another.

And we really don’t know what this child needs or weather one parent is really not supporting them insufficiently to have their rights taken away,” explains Chris Melcher.

Host: And the custody battle is thorny.  This has been quite contentious to hear the bill’s author speak about her own home’s experience with her own child and saying ‘I’m doing this for the best interest of these children who can’t speak for themselves. Again, some challenges may be on the way here.

©2023 Scripps News. No claims made to copyrighted material. Aired 9/18/23.