Child custody and children's embarrassment at being seen in the company of mother's transgendered friend

[Volokh, Eugene]

	An interesting discussion in Lowhorn v. Lowhorn, 2008 WL 2839485
(Ind. App. July 24),
http://www.in.gov/judiciary/opinions/pdf/07240806ebb.pdf.  The trial
court switched custody from mother's having primary physical custody
(with father having visitation rights) and both parents having joint
legal custody, to the father having sole legal and physical custody,
with mother having visitation rights.  At the time of the lower court
hearing, the boy was nearly 14, and the girl was nearly 10:
 
	"Mother also challenges the trial court's findings regarding her
relationship with Galen, Mother's friend who transgendered from male to
female. The trial court found: 

	"'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.' ...

	"Mother has had a platonic friendship with Galen for several
years. Father described Galen as 'a super nice guy.' In August 2005,
Father learned that Galen had transgendered from male to female. There
was no evidence presented that Mother subjected the children to being
seen with Galen while he was dressed as a female in restaurants or at
the children's extracurricular activities. Moreover, the evidence
demonstrated that the children's friends saw Galen while he was dressed
as a female only one time when Mother and Galen picked the children up
from Father's house.

	"Father testified that the children were 'embarrassed.' After
Father confronted Mother about Galen, Mother agreed that she would not
'have the kids around . . . Galen.' For a few months, the children had
no contact with Galen. Now, the only interaction between the children
and Galen is when Galen comes to Mother's house for dinner two or three
times a month.

	"The trial court's finding that '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' is clearly
erroneous. Rather, the evidence demonstrates that, after the children's
concerns were brought to Mother's attention, the children had
interaction with Galen only a few times a month for a private dinner in
their residence. There is no evidence that the children's occasional
interaction with Galen during private dinners is harmful, and the
evidence is simply insufficient to demonstrate a substantial change to
modify custody....

	"We also note that an extensive custody evaluation was performed
by Dr. Richard Lawlor and submitted to the trial court. Dr. Lawlor noted
that '[t]here is no psychological research to support the finding that
involvement with transgendered individuals is of any risk to children.
The only harm that would likely come to children would be from the
children's reaction to that situation.' Dr. Lawlor's impression was
'that the children's current negative reactions are actually a
combination of their own confusion and spontaneous reactions; as well as
their father's somewhat shocked approach to the whole situation. Their
reaction also flows from their mother's overly aggressive approach to
trying to make sure both children grow up unprejudiced.' Dr. Lawlor
believed that a change in custody was not an appropriate remedy to the
situation. Rather, Dr. Lawlor recommended counseling 'to try to sort out
whether or not this situation can be resolved without a change of
custody and with maintaining the current custody arrangement.'
Specifically, Dr. Lawlor recommended the following:

	"'Should the children's current discomfort flow primarily from
within themselves and not from Brian, and I do think that their
discomfort is a combination of Brian's conservatism and their mother's
extreme liberalism, it may be that a custody change is warranted.
However, my impression is that at this point, the discomfort of the
children is actually a mixture flowing from the reactions of both
parents, as well as some of the spontaneous actions on the part of both
of the children. For that reason, I think that rather than a change of
custody at this point, the issues should be dealt with in a therapeutic
way. . . . For the moment, I would suggest that a change of custody is
not the best way to go, and I would strongly recommend going with some
type of therapeutic involvement at this time.' ...

	"Had the trial court made [the] determination [that the
children's dicomfort 'flowed primarily from with themselves' and not
from Father] and a determination that the children were adversely
affected or their emotional development was significantly impaired, its
legitimate findings, including the strong desires of the children, may
have supported its conclusions thereon and the conclusions may have
supported the Judgment.... [But in the absence of such findings, we]
reverse the trial court's grant of Father's petition to modify custody
and remand for proceedings consistent with this opinion."

	Any thoughts on whether the Constitution -- perhaps under the
Equal Protection Clause or, more likely, under the right to intimate
association -- has anything to say about situations where a court
changes custody on the grounds that children are embarrassed or
uncomfortable around a parent's transgendered friend (or gay friend or
disabled friend or whatever else), in the absence of any showing of
likely material psychological or physical harm to children?  I'm not
positive that it does because I haven't thought how intimate association
rights should play out here, but I thought I'd raise this.

	What if the children were uncomfortable with the race or
religion of a parent's friend whom they regularly saw in the parent's
company?  Should that be rejected as a grounds for custody change under
Palmore v. Sidoti, or should the preferences of the children be treated
differently from the possible reactions of others, as was the case in
Palmore itself?  (Should the age of the children matter, so that older
children's custodial preferences would be categorically considered
regardless of the basis for the preference?)

	Eugene