Eugene Volokh recently posted at the Volokh Conspiracy about an interesting, and encouraging, decision from the Indiana Court of Appeals in Lowhorn v. Lowhorn (PDF). There, primary physical custody and joint legal custody had been given to the mother in 2002, but the father had petitioned in 2006 for sole legal and physical custody. He complained that Mom had failed to consult him about various matters, including going to a new church (Jesus Metropolitan Community Church, an LGBT-friendly nondenominational church), but it seems Dad's primary beef was a friend of Mom's. From the trial court's findings:
Wowza. For those not familiar with family law, a custody change requires a "substantial change" in circumstances that were relevant to the original custody determination. When reviewing the trial court's change of custody, the appeals court is supposed to affirm unless it is "clearly erroneous," i.e., there is no evidence at all to support the trial court's findings. The appeals court found that the findings of a substantial change with regard to Dad's other concerns were clearly erroneous. It went on to reach the same conclusion regarding the mother's friendship.
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.' ...
The Good: The court found no evidence that the children's contact with their mother's friend was harmful, and cited cases concerning parents' sexual orientation and same-sex relationships. This indicates that the court properly understands a case like this is analogous to those cases: neither the individual status nor a relationship involving someone of that status should be a custody decision, only the way in which the parent carries on their relationships. The court quoted the psychologist's custody evaluation, which stated that "there is no psychological research to support the finding that involvement with transgendered individuals is of any risk to children."
Furthermore, the court found no support for the conclusion that, to the extent the children were distressed, this was caused by the mother's friend or her friendship rather than by parental reactions to it. In cases where social prejudices come into play, this is a crucial distinction to make, because children's reactions to a situation may be heavily influenced by their parents' reactions.
The Bad: At the same time, the court seemed to buy into the idea that the mother was as much to blame as the father for the children's distress. The court quoted the psyhologist's opinion that "the children's discomfort is a combination of [their father]'s conservatism and their mother's extreme liberalism" and "overly aggressive approach to trying to make sure both children grow up unprejudiced." This "overly aggressive approach" apparently involved taking them to MCC a few times with a trans friend, took them out to dinner with the same friend, and thereafter invited that friend over to dinner at her home two or three times a month. While one can certainly imagine a hypothetical in which an "overly aggressive approach" to teaching tolerance to one's children had harmful effects, such a characterization seems unfounded here.
Perhaps more to the point, the appeals court left the door open to show that mother's friendship with a trans woman did in fact merit a custody change, if it be shown that "the primary origin of the children's confusion and discomfort" is internal rather than caused by their parents' responses to the situation. In other words, the court leaves open the question whether, if children are themselves sufficiently prejudiced against a group of people that being around them is distressing, such exposure can be the basis for a custody change. The lesson would seem to be to harden your children's prejudices early, before your ex starts introducing them to lesbians, transsexuals, Jews, atheists, etc.
Finally, the court seemed to find it significant that the children only saw Mom's trans friend "dressed as a female" once, and not in a public place. The apparent inference is that if the kids had been exposed to a trans woman dressed as a woman - particularly in public - this might be a different story. This is directly contrary to observation made by the psychologist, and recognized by the court, that being around trans people is not harmful to kids.
To suggest that this lack of harm is somehow become harm when trans people present as their authentic, post-transition gender seems akin to drawing a distinction between a parent having a same-sex relationship and the children meeting the parent's same-sex partner. Obviously if parents, or their friends or lovers, lack appropriate boundaries that is one thing. But suggesting that kids should only be exposed to trans people if they present as their birth sex is like saying that the kids can meet Mommy's girlfriend only if she's introduced as a "roommate" and they are never seen holding hands. It also invites what will inevitably be arbitrary line-drawing by courts about at what point in transition, if ever, it is appropriate for trans people to present as their authentic gender around their or someone else's kids.
All in all, the appeals court's decision in Lowhorn v. Lowhorn sets a positive precedent, moving the law in the direction of disregarding transgender identity and expression in custody determinations - just as sexual orientation is now generally disregarded - even if this court isn't all the way there.