Who “Owns” A Child?

Would it be wrong for a judge to remove a child from the custody of his parent if, due to a parent’s religious belief, the child was denied a life saving drug or surgery? Few would question the judge’s decision as to what was in the best interest of the child. Certainly, a child’s death or disability isn’t a good thing, no matter how passionately the parent believes that god will save their offspring.

But is gender transitioning in the same category as, say, diabetes? The question is not whether it is or isn’t, but who gets to decide whether it is or not. In H.S. v. Dep’t of Children & Families, the Florida Fourth District Court of Appeals decided that the decision belonged to the parent, not a judge, who was at minimum sympathetic to, and accommodating of, the child’s desires.

At some point after running away, the child moved in with the father [a Christian minister and youth pastor]. Because of his moral and religious beliefs, the father refused to seek any sex-reassignment treatment for the child and opposed any form of gender transition before adulthood.

In June 2023, the Department of Children and Families (“DCF”) moved for an emergency modification of placement for the child. In its motion, DCF sought to remove the child from the custody of both the mother and the nonoffending father. The only grounds that DCF provided for why the child should be removed from the father’s custody were that the father was “emotionally abusive” toward the child because the father “doesn’t understand [the child’s] way of life” and does not allow the child to live and dress as a female or pursue gender transition.

Granted, questions of emotional impact are both highly controversial and distinct from life or death, unless, of course, you’re of the view that gender dysphoria will cause life-long psychological trauma and, potentially, end in suicide. But the father is not of that view. The judge, however, took a different tack.

To an objectively reasonable person, the trial judge’s pre-hearing remarks were antagonistic to the father and his right to direct the child’s upbringing and moral or religious training. Those remarks when taken together—referring to the child by female pseudonyms, telling the child that “you are one smart, strong[,] [t]ogether, young lady,” and to “[c]hin up, sister”—implied a foregone conclusion, before hearing the father’s motion, that the trial judge was supportive of the child’s gender transition before adulthood and opposed to the father’s reliance upon his moral or religious beliefs to otherwise direct the child’s upbringing.

Furthermore, the trial judge’s in-camera interaction with the child went beyond mere attempts to establish a rapport with the child. Before hearing the father’s motion to return the child to his custody, the trial judge explained to the child what would happen if she permanently removed the child from the father’s custody contrary to the “placement priority” provided by section 39.4021(2)(a)(1.), Florida Statutes (2023), requiring that the trial judge first consider placing the child with the “[n]onoffending” parent before considering any other placement. Then, the trial judge verbally expressed an inclination—again, before hearing the father’s motion—to order the father to submit to “professional help,” “counseling,” or “guidance” from DCF in an effort to change his moral or religious beliefs.

On appeal, the father contended that the case be reassigned to a different judge who was not biased against the father. The appellate majority agreed.

The right of parents to direct the upbringing and the moral or religious training of their children is older than our constitutional form of government and deeply rooted in our common law traditions. H.S., the father—who is a Christian minister and youth pastor—lawfully opposes, on moral and religious grounds, gender transition before adulthood for his minor child—who is a biological male.

We are asked in this case to determine whether the father reasonably feared that he would not receive a fair hearing on the appropriate placement for his child based on remarks the trial judge made suggesting she had predetermined that the father had no right to oppose gender transition or otherwise direct the child’s upbringing based upon his moral and religious beliefs.

The father argues that he has a reasonable fear that he will not receive a fair hearing because the trial judge “has demonstrated a bias against [him] and a disregard for the requirements of the law.”

As a general rule, the parents are responsible for upbringing of their  minor child. Indeed, they decide such matters as whether the child should go to bed by a certain time, eat another bowl of ice cream or spend their school days watching instagram on their iToy. Not only are parents responsible, but they would be denigrated as bad parents for failing to fulfill their duty to make mature decisions for their child.

In some instances, they might be held culpable for the decisions they make, such as buying their child a gun. Part of that rationale is that they are the parents, the people who are primarily responsible for the health and welfare of their child as they deem fit.

“Children do not belong equally to parents and the state[.]” Rather, “their protection is first entrusted to the parents, extended family next, and then, if necessary, the state.” However, government action that substitutes its views or beliefs on childrearing for that of the parent demonstrates a “zeal” for “paternalism.” “That zeal going unchecked by a judiciary, far from protectionism, abnegates the child’s reciprocal right not to lose a parent unnecessarily.”

Of course, the “if necessary” does a  lot of heavy lifting in the above-quoted passage, as someone has to decide which decisions “first entrusted to the parents” are of such consequences that a poor one kicks responsibility down the road to a judge. Does gender transitioning fall into the category of eating too much ice cream or denying lie-saving surgery?

Is the answer objectively answerable or a matter of ideology, with some seeing a minor child’s gender identity as a life-or-death proposition while others see it as a decision that should not be made until reaching the age of maturity, if at all? And who says judges know better than parents to make such critical decisions, or that parents can’t make bad choices that will doom their child to a life of misery because of passionately-held religious beliefs?

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