The battle arose from one of the most unfortunate but pervasive problems in family law. A couple with kids divorces, and decisions are made at the time about who gets physical custody and decision-making authority over the children of the union. Often, it’s by agreement between the parents. Sometimes, the bitterness requires a judge to intervene.

Unsurprisingly, the mother almost always gets the kids, even if the father cares deeply, is fully prepared to be the nurturing parent  and is the better choice. You have to really suck as a mother not to prevail, claims of equality and mental labor notwithstanding.

But then, the ordinary expectation is that the decision-making parents will deal with the unpleasant choices of bed time, schooling, religious training and whether to coerce their child to eat peas. When the decision involves something more dramatic, does the agreement reached between spouses, or imposed by judicial fiat, still suffice?

Arizona judges can require parents to provide counseling, therapy and other expert help to children who may be transgender, even if one parent doesn’t support treatment, the state’s highest court ruled Thursday.

But the courts can only intervene when a child would be “at risk for physical danger or significantly impaired emotionally” without access to those services — a higher standard than the “best interest” test often used in family-court cases.

While the higher standard might sound more serious, there is a cottage industry already in place to meet that standard, based not on reality as much as supposition and assumption.

The American Association of Pediatrics recommends providing “comprehensive, gender-affirming, and developmentally appropriate health care” in “a safe and inclusive clinical space” to children with the diagnosis, as well as “family-based therapy and support” for parents and siblings.

It notes that children with gender dysphoria face an increased risk of depression, anxiety and suicide when they face rejection from their families or feel they have no place to authentically explore their identities.

When they say “face an increased risk,” they are talking generically. Whether their generic talking points are empirically based, or products of social science studies determined by establishing a claim, they are proffering a perspective. People who leave their keys in the Porsche in a bad neighborhood face an increased risk of having their car stolen. It doesn’t mean the car will be stolen, but that the risk is increased. Even assuming the increased risk is accurate, does it mean any particular child will suffer physical danger or significantly impaired emotions (which is a world apart of physical danger)?

But that’s not the test, that the child actually suffer. The test is that the child be put “at risk” of suffering, such that generalizations of risk are sufficient to prevail, even if there is no evidence that the particular child at issue is suffering either of the criteria.

It might seem as if the Arizona Supreme Court’s decision would call for a battle of the experts. It doesn’t. If it had, it wouldn’t have been a fair fight, as the related professions have already picked their side; there is no corresponding cottage industry in pediatrics, psychiatry or psychology to challenge the diagnosis or risk factors for gender dysphoric youth. This could arguably be because they’re medically correct or politically correct. Either way, challenging the conclusions is a problem.

But the court instead punted on the question.

When a family court designates one parent as the sole legal decision-maker for a child, unless the parties agree otherwise, the court may limit the decision-maker’s authority only as necessary to prevent endangering the child’s physical health or significantly impairing the
child’s emotional development.

The initial decision of which parent should be the sole (or, presumably, primary) decision-maker may have been based on little more than who cooked better, worked less, or was just the mother and entitled by inherent bias to be in charge of the kids. That didn’t make the parent the better arbiter of whether a male child who liked to play with dolls was transgender. But in this case, ultimate legal decision-making authority was vested in dad.

Paul E. (“Father”) and Courtney F. (“Mother”) have three children including L., who was born in 2007. Upon the parties’ divorce in 2010, the family court awarded them joint legal decision-making authority with equal parenting time and, as relevant here, gave Father final legal decision-making authority concerning L.’s education and medical and dental care. Mother and Father have clashed on several parenting issues since their divorce, making their relationship, according to the family court, “volatile and dysfunctional.” The dispute here stems from the parties’ handling of L.’s gender identification.

The court shifted the burden to mom, the non-decision-making parent to prove that dad’s disagreement with mom’s handling of the determination that their son was transgender put the child at risk of harm, whether physical or emotional.

As for the orders here, the family court found that “Father’s approach [to gender dysphoria issues] [w]as generally reasonable” and he “appropriately sought out therapy for [L.] and followed the therapist’s advice” before issuance of the Rule. But Father’s failure to “actively
encourage gender exploration in his home” before the Rule, maintenance of a log documenting events bearing on L.’s gender identification, and “view that [L.] might be ‘in remission’ during 2015” indicated “he may not be as open to allow exploration as the experts . . . believe is appropriate.”

It wasn’t that dad was some religious nutcase or adamantly against the possibility that his son was, in fact, suffering from gender dysphoria and transgender. It was that dad wasn’t sufficiently encouraging.

Addressing § 25-410(A), the court found that “[L.’s] gender dysphoria diagnosis and the parents’ response to it has already caused [L.] emotional harm” and “[w]hile Father may argue that Mother[]” mainly inflicted that harm, “Father was slow to accept the diagnosis, and  has advocated a position that [L.] was in ‘remission’—a position at odds with the experts.” Thus, given the “complexity of [L.’s] situation, the dynamics of the parties’ relationship and the potential for harm if it is not managed correctly,” the court found that L.’s “physical health would be endangered and emotional development impaired” if the court did not “establish some [mandatory] guidelines for the parents in addressing [L.’s] situation.”

The Supreme Court rejected the court’s intervention.

This order does not satisfy § 25-410(A) because it fails to focus on how Father’s exercise of unchecked legal decision-making authority would place L. at risk for physical injury or significantly impair L.’s emotional development. The complexity of L.’s situation is not a basis alone for invoking § 25-410(A). Fit parents, like Father, frequently guide their children through complex situations without court interference. The “dynamics of the parties’ relationship” does not suggest that Father will exercise his sole legal decision-making authority in a way that endangers or impairs L. And the potential for harm due to mismanaging the gender
dysphoria diagnosis is not equivalent to finding that absent a specific limitation, L. would be put at risk for harm or suffer harm.

The decision rested on the burden of proof, which in this case was on mom to prove that dad’s reluctance put their child at risk of harm. It could just as easily go the other direction, had mom been given legal decision-making authority, and the burden placed on dad.

Either way, the court contributed nothing to the resolution of the problem, what to do about the child based on the facts before the court or the child’s individual circumstances, and instead left it to the determination of a parent who was never chosen, agreed to be or necessarily qualified to be, the arbiter of their child’s gender. Then again, does anyone want a judge deciding your son’s gender either?