The UCCJEA, the scaffold of our interstate child custody system, has two dueling new exceptions related to child gender dysphoria. What will be the impact on interstate child custody lawyers with the latest UCCJEA changes sweeping the country?

UCCJEA Sex

An Increasing Health Care Concern

Children in the U.S. can identify as a gender different from the one they were assigned at birth. The number of children identifying as gender nonconforming and transgender is growing.

Health technology company Komodo Health Inc., attempted to quantify the number of children seeking and receiving care by analyzing millions of health insurance claims. Between 2017 and 2021, the number of new diagnoses of children aged 6-17 with gender dysphoria increased by nearly 178 percent.

Of these cases, a smaller number of children with gender dysphoria are choosing medical interventions to express their identity. Appropriate treatment for children diagnosed with gender dysphoria is the subject of debate internationally, and not surprisingly, among different U.S. states.

Dysphoria in the UCCJEA

I have written and spoken on many issues related to the UCCJEA as a family law attorney. Next month I will be presenting an introduction to the UCCJEA for foreign lawyers at the IV Congreso Internacional de AIJUDEFA in Mexico.

The UCCJEA is a uniform act created to avoid jurisdictional competition and conflict with other courts in child custody matters. The UCCJEA also promotes cooperation with other courts and ensures that a custody decree is rendered in the state which is in a superior position to decide the best interest of the child. The UCCJEA helps to facilitate enforcement of custody decrees; and has the aspirational goal of promoting uniformity of the laws governing custody issues.

One of the ways the UCCJEA helped to avoid jurisdictional competition in child custody matters is by solving the historic problem of different courts issuing different orders covering the same child. Under the UCCJEA one state is a child’s home state, and the home state keeps exclusive jurisdiction to modify the custody arrangement unless, for example, the child is another state and there is an emergency.

Dueling Banjos

Periodically, child custody disputes can become emergencies. The UCCJEA provides deliverance from such disputes by authorizing any state – even if it is not the home state of the child – to take temporary emergency jurisdiction to protect a child subject to, or threatened with, mistreatment or abuse.

California recently amended its version of the UCCJEA. California Governor Gavin Newsom – fresh from having visited Florida to poke fun of Gov. DeSantis – signed a bill expanding temporary emergency jurisdiction in California under the UCCJEA.

Effective this year, California courts are now authorized to assume temporary emergency jurisdiction of children in California, who are 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.”

Florida recently amended its version of the UCCJEA. Gov. DeSantis – fresh from having visited California to poke fun of Gov. Newsom – signed a bill expanding temporary emergency jurisdiction in Florida under the UCCJEA.

Effective this year, Florida courts are now authorized to assume temporary emergency jurisdiction of children in Florida, who are subjected to, or threatened with, mistreatment or abuse, “or 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.”

The California Senate bill is here. The Florida Senate bill is here.

Florida courts do not weigh a parent’s gender when determining child custody. However, in some countries, gender matters. Why? Because the law can make a presumption that during a child’s “tender” years, around age four and under, the mother is awarded child custody. One father in Ecuador decided to tilt the odds in his favor by changing his gender.

Gender Custody

Paying the Cuenta in Cuenca

On the morning of December 30, 2022, in the dusty town of Santa Ana de los Cuatro Ríos de Cuenca, Ecuador, René Salinas Ramos decided to change his gender from male to female and fight for custody of his two daughters. Salinas had a major complaint about the country’s child custody laws. Namely, the laws gave more rights to the mother than the father.

“My actions are not against anyone in particular but against the system. Being a father in this country, Ecuador, is punished and seen only as a provider.”

The Father was interviewed by La Voz del Tomebamba radio. During the interview he showed his new country ID card, which has his new gender data, “FEMENINO.” However, his ID contains the same names with which he was enrolled with originally over 47-years ago.

While the ID card has his gender as “femenino”, he still identifies himself as a cisgender male. Ecuador passed a law in 2015 that allows people to legally change their gender on government-issued documents.

Florida Child Custody

I’ve written about child custody before. Unlike Ecuador for example, Florida does not apply the “tender years doctrine” anymore. Florida has the parenting plan concept. For purposes of establishing a parenting plan, the best interest of the child, not the gender of the parent, is the primary consideration.

In Florida, the best interests of the child are determined by evaluating all of the factors affecting the welfare and interests of the particular minor child and the circumstances of that family, including the mental and physical health of the parents.

Some of those factors include the demonstrated capacity and disposition of each parent to facilitate and encourage a close and continuing parent-child relationship, to honor the time-sharing schedule, and to be reasonable when changes are required, and of course, the mental and physical health of the parents. None of the statutory factors involve the gender or sex of the parent and child.

It is also the public policy of Florida that each minor child has frequent and continuing contact with both parents after the parents separate and to encourage both parents to share the rights and responsibilities, and joys, of childrearing.

When it comes to the parents’ gender, Florida makes no presumption for or against the father or mother of the child or for or against any specific time-sharing schedule when creating or modifying the parenting plan of the child.

In Florida, the court must order that the parental responsibility for a minor child be shared by both parents unless shared parental responsibility would be detrimental to the child.

Género, patria y libertad!

According to Salinas, his daughters live with their mother in an environment in the midst of violence. These allegations of violence are reportedly denounced. Salinas boasts that now that he is a woman, he can be a mother and is on an equal footing to fight for the parental authority of his daughters.

“It is more than five months that I do not see my daughters. I can also be a mother, I know how to cook, give love, iron and other activities of a mother.”

However Salinas never explained what prevents Salinas from approaching the children. In the Father’s opinion, justice is biased in favor of women when it comes to parenting and, according to Salinas, to be on an equal footing, he no longer wants to be called dad, but mom.

“The laws say that the one who has the right is the woman. As of this moment, I am female. Now I’m also a mom, that’s how I consider myself. I am very sure of my sexuality. What I have sought is that I want to be a mother, so that I can also give the love and protection of a mother.”

Until this matter is resolved the children have to stay with their mother he told the media. The law is taking away our right to be parents and changing his official ID to show a new gender “is a proof of love.”

Salinas Ramos is reportedly the first man in Ecuador to use gender laws to gain the upper hand in a custody battle, and news of the gender change has set off criticism from transgender activists in the South American country.

Money may also be an issue. According to reports, the judicial system portal may reflect that the Father maintains a debt with his former and current spouse. This amounts to $10,766 for alimony.

Regarding the breach of this responsibility, Salinas justified that in the case of the current spouse he made an agreement, because he paid all the basic services and school obligations. Additionally, he mentioned a document signed by the mother in which she renounces the debt, but Salinas did not show it, and the document does not appear to be recorded in the computer system either.

Salinas hopes that the issue of the possession of girls will continue to be debated not only at the social level, but also in the Assembly. He acknowledged that after his gender change on the ID he has received calls for support from organizations and even politicians, but he does not want the issue to be mixed with the campaign and preferred not to approach them.

The La Voz Del Tomebamba article is here. (en Español)

Tag: child custody gender

UCCJEA and Gender Dysphoria