Transgender child looking in the mirror

It was inevitable – the culture wars being fought over LGBTQ+ issues have entered the parenting arena, and as one may imagine, not in a good way. At least two different states have enacted legislation which would give their courts emergency parenting jurisdiction over transgender children based upon gender affirmation treatment (aka “sex-reassignment treatment” in some circles). The states concerned, Florida and California, are predictably on opposite sides of this issue.

UCCJEA and Child Custody Jurisdiction

First, a bit of background. In response to a mandate contained in the federal Parental Kidnapping Prevention Act, or PKPA, every state but one (Massachusetts is the lone holdout, along with Puerto Rico) has enacted the Uniform Child Custody Jurisdiction and Enforcement Act. This statute does not impose uniform standards on which parent should have custody, but instead harmonizes laws governing jurisdiction to prevent two states from entering conflicting parenting orders.

Child’s Home State Has Parenting Jurisdiction

The basic premise of the UCCJEA is that a child can only have one “home state” at any given time (typically where the child last lived for a period of 6 months or more), and once a court has entered custody orders, that state retains exclusive continuing jurisdiction as long as at least one parent or the child lives in the state, unless that state voluntary defers jurisdiction to another state which is a more convenient forum.

Colorado’s enactment of the UCCJEA is at C.R.S. 14-13-101, et seq, with the exclusive, continuing jurisdiction provision being contained in C.R.S. 14-13-202. For more information about child custody jurisdiction, see our Parenting Jurisdiction and the UCCJEA article in the Colorado Family Law Guide.

Temporary Emergency Jurisdiction

There is one limited exception to the UCCJEA, which is how states are now tinkering with the statute based upon their views of LGBTQ+ issues, and in particular, what happens when a child is transgender.

Per section 204 of the UCCJEA (in Colorado, enacted as C.R.S. 14-13-204), despite a different state having child custody jurisdiction, a state where the child is present can enter a temporary emergency order to protect the child from endangerment:

“A court of this state has temporary emergency jurisdiction if the child is present in this state and the child has been abandoned or it is necessary in an emergency to protect the child because the child, or a sibling or parent of the child, is subjected to or threatened with mistreatment or abuse.”

C.R.S. 14-13-204(1)(a)

This provision does not allow one state to permanently usurp another state’s UCCJEA jurisdiction, but rather allows judges to step in and enter emergency parenting orders to protect children only for a short time to allow that parent to seek an order in the state which has jurisdiction.

In practice, once one state has exercised child custody jurisdiction, it’s extraordinarily rare to see another state step in with an emergency order – not only is it probably quicker to seek relief in a court where the custody case is already pending, but also because a parent would not want to be seen trying to usurp the authority of the judge where the matter is pending by seeking an emergency order in another state.

Florida – “Sex-Reassignment” Treatment is Endangerment

Enter Florida. Effective May 17, 2023, that state’s version of the UCCJEA has been modified to provide Florida courts with temporary emergency jurisdiction to the following, in addition to the standard endangerment language quoted above:

“It is necessary in an emergency to protect the child because the child has been subjected to or is threatened with being subjected to sex-reassignment prescriptions or procedures”

Fla. Stat. § 61.517.

So right up there with abandonment or abuse, Florida legislators have determined that a transgender child who may receive gender affirmation treatment in another state is, per se, being endangered, and Florida can enter emergency orders to protect the child.

In reality, this is more performative than substantive. It formalizes anti-LGBTQ stigma more than actually accomplishing any long-term goal, because any order from Florida is only temporary, expiring once the state with actual UCCJEA jurisdiction enters an order for the child’s return.

California – Denial of Gender-Affirming Care is Endangerment

California, unsurprisingly, has taken the opposite approach, and earlier this year modified its UCCJEA to provide their state courts with temporary emergency jurisdiction to protect a transgender child from having to return to a state where gender-affirming treatment may be denied. That state’s version of the UCCJEA provides:

“A court of this state has temporary emergency jurisdiction if the child is present in this state and the child has been abandoned or it is necessary in an emergency to protect the child because the child, or a sibling or parent of the child, is subjected to, or threatened with, mistreatment or abuse, or because the child has been unable to obtain gender-affirming health care or gender-affirming mental health care

Cal. Fam. Code § 3424(a). Emphasis added.

Transgender Child Policy Statements at Expense of Uniformity

Regardless of one’s views on treatment for transgender children, California’s statute is no less performative than Florida’s – neither provides more than a very brief “speedbump”, after which the child will return to their home state and be subject to whatever that state’s laws are on gender affirmation treatment.

Judge's gavel on a rainbow-flag colored U.S. Constitution.

By way of example, let’s assume a transgender girl from California is visiting her father in Florida for the summer. The father, who still thinks of her as his “son”, obtains a Florida court order for the child to remain temporarily in Florida to protect against the gender affirmation treatment she was receiving in California.

That order would be very short-lived, as you can bet the CA judge would issue a contradictory order fairly quickly, and under the terms of even Florida’s UCCJEA, Florida would have to accept that California order and return the child.

And the same is true in reverse – a transgender boy who lives in Florida is visiting his parent in California, and that parent obtains a California order preventing the child’s return because he is denied gender affirmation treatment in Florida. That order provides temporary relief only, because it would take Florida very little time to issue its own order for the return of the child, which California is required to respect.

In today’s divided society, there is no consensus for meaningful reform which would actually have teeth, either at the federal level, or through the states acting in concert, as opposed to unilaterally. Absent such consensus, using a uniform statute on child custody determination to make a policy statement on transgender children will merely create jurisdictional conflicts between the states without providing a meaningful, long-term solution.

And this is only the start – once states start imposing their own agendas on child custody jurisdiction, what starts with gender affirmation treatment will in the future become bans on pregnant children from returning to a home state where they may obtain an abortion. Or any other procedure a particular state disapproves of. Or medical marijuana. Or be exposed to religion. Or be deprived of the ability to go to church. Etc, etc.

Regardless of how meritorious the issue, there is a reason child custody jurisdiction needs to be uniform.

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