UCCJEA & WEAPONIZATION OF CUSTODY LAWS
For those not lawyers, the UCCJEA is a ridiculously long acronym for standardized custody laws that are supposed to be uniform across the United States. Every state has its own custody laws, but back in the 1960s the legal community realized that there was a risk that courts in different states could issue differing custody orders concerning the same child because both states claimed the child as “theirs.” The idea behind the law (called the UCCJA) was that only one state should be deciding a child’s custody at a time and priorities were crafted to decide which state that would be. In a nutshell, the presumption was that custody should be decided primarily in the state where the child spent most of his/her time in the preceding six months.
In 1997 the UCCJA was amended and the acronym lengthened to become the UCCJEA. When the “uniform” laws are issued, the goal is for each legislature to adopt them so that the law in New York will be essentially the same as in Kansas or wherever. But states are free to reject the uniform laws or to pass them with their own modifications. The goal of the Uniform Law Commission which writes these laws is to minimize modifications because they breed confusion.
In both versions of these “custody jurisdiction” laws an exception was carved out for what is dubbed “emergency” jurisdiction. The idea behind this is that if parents took their children to Disney in Florida and one parent did something to harm the child, the local courts could act on a temporary basis to protect the child, even though the child was not a Florida resident. Again, the key word is temporary, and the goal was to avoid everyone having to race back to New Jersey where the kid lived to secure some judicial order of protection.
Well, in case you don’t read the news, a lot of state legislatures with time on their hands have decided they need to “clean up” behavior they think inimical to children. Things like drag events (not the roadsters mind you) or how bathrooms need to be demarcated. And, in the minds of some of these legislators nothing is more dangerous to a child than to “confuse” the child about his or her gender.
The best data we can find indicates that about 300,000 children in America struggle with whether they are boys or girls. That’s out of 74,000,000 kids or about 4 kids per 1,000. But a lot of people in America feel that the parents of these children can become dangerous if they take these children to pediatricians who are asked to “treat” this condition. The medical community, in particular, the American Academy of Pediatrics and the American Medical Association support the idea that these kids may merit something called gender affirming care. A lot of legislators, most without any medical training, see this as some kind of child mutilation and they are bent to stop it. So, here is where the rubber hits the road.
Recall we started talking about the uniform custody acts adopted by the states and emergency custody jurisdiction to protect kids in danger. Well, Florida is looking at passing a law explicitly finding that transgender care is a form of child abuse and amending its version of the UCCJEA to explicitly find that.
Why do those of us outside Florida care? Because a lot of American children go to Florida to wander its beaches or be amused by Disney and Universal Studios. If the Florida law passes, any of those kids who is receiving some form of gender therapy could be swept into the Florida juvenile system on the basis that the child is abused. A Harvard Law Instructor, Alejandra Caraballo, has read the proposed law and suggested that a parent could take a child to Florida and then ask that state to exercise emergency jurisdiction to protect the child from the therapy a physician has prescribed in the state where the child resides.
Now, if you want to put a child and a judge in a bad place put together this scenario. One parent takes the child to a pediatrician who prescribes gender therapy. The other parent takes the child to Florida and between rides on Splash Mountain, the parent decides it’s time to discuss the child’s therapy with Orange County child welfare officials. By Florida law, this therapy is a form of abuse so they open a matter and refer it to a judge for an order of protection. The judge in Florida has only temporary jurisdiction and is required to coordinate with the child’s home state (e.g. Pennsylvania). While this is going on, the child may be with the parent in Florida or the child may be in some protective custody. Meanwhile, two adult judges in Florida and Pennsylvania get on the phone. They know essentially nothing about the child but they are supposed to figure out what protections the child needs. They also know that one judge sits in a place with a law saying gender therapy is “abuse” and the other judge has reports from the AMA and the pediatric specialty world saying this is sound medical practice. Could the Florida judge be disciplined if he sends the child back to Pennsylvania?
Florida Senate Bill 254 states that Florida could take temporary custody of children if “it is necessary in an emergency to protect the child because the child, or a sibling or parent of the child” is “at risk of or is being subjected to the provision of sex reassignment prescriptions or procedures.” It further provides that it can modify orders issued in other states to the extent those orders provide what Florida views as illegal care.
This bill has just been submitted but the die it seeks to cast threatens basic principles of interstate comity and makes interstate travel a foray into the unknown. Few of us travelling across state lines carry statutes with us and if you drive your transgender child to Florida you will pass through six states on the way. But if Delaware passed a statute similar to Senate Bill 254, your 35 minute journey en route to Maryland could be interrupted in a life changing way for your kid.
The text of the bill is here:
If you wonder what states are either banning gender care or considering it, here is a map:
