Smith v. Smith

Facts

H and W were married on June 4, 1994. On March 26, 2001, they filed a petition for dissolution. They also filed a separation agreement in which W was designated as the residential parent of their two minor children. In his motion H requested to be designated the residential parent. H alleges that W had moved to Niles, Ohio to enroll their older son in a new school as a girl under the name of Christine; that she was taking the child to a transgender support group; and that she intended to subject the boy to hormonal therapy and surgery to alter his gender. The court issued an emergency temporary order reallocating parental rights to H. W was ordered: to stop any treatment or counseling for gender disorder; to stop the child from attending transgender support groups; to stop addressing the boy as Christine or any other female name; and to stop allowing or encouraging him to wear girl’s clothing. H was also ordered to return to Toronto, Ohio, and to re-enroll the boys in school there. The court absolutely prohibited the parties from treating or counseling the boy for gender identity disorder (GID) throughout the pendency of the dispute. H filed for an emergency order terminating the prior shared parenting plan. H alleged that w violated the plan by taking his son to a swimming pool dressed in a girl’s bikini swimsuit. Four expert witnesses testified, and a large body of other evidence was submitted, including various photos and videotapes of the boy. The court reallocated parental rights and responsibilities. The trial court found that the boy had displayed some female tendencies, including an attraction to female clothing, as early as age two. The court found that, at a very early point in the child’s life, W conducted independent research into gender identity issues and concluded that he had GID. She did not consult any medical professionals. W allowed him to dress in girl’s clothes and told him he could be a girl someday. W’s conclusion was based on internet research and support group information. At age nine the son sent an email to H stating that “God made a mistake” about his gender. He included photos of himself in girl’s clothing. H would send along both girl’s and boy’s clothing, as well as Barbie dolls, for her son to use while with H. The son also sent a videotape recorded while sitting in a chair and talking about his gender. The boy stated numerous times on the tape that he is a girl, wants to be a girl, and that he would like to live a normal life as a girl. stated that he looked forward to the time when he could wear girl’s clothes all the time. He stated that he is a girl even if he does not have all the body parts of a girl. He expressed a desire to either go to school as a girl or be home-schooled. The court concluded without doubt that W violated the initial court orders. The trial court concluded from the experts that GID is a real condition that affects between 1 out of 30,000 and 1 out of 100,000 people. The court accepted the “Diagnostic and Statistical Manual of Mental Disorders, 4th (“DSM-IV”) standard for diagnosing GID: 1. Repeatedly stating a desire to be or insisting that the child is the other sex. 2. A preference for cross-dressing or wearing attire typical of the opposite sex. 3. Strong and persistent preferences for and admiration of cross-sex roles in play or fantasies. 4. Strong or intensive desire to participate in the stereotypical games and activities of the other sex. 5. Strong preference for playmates of the other sex. It concluded that a person needed to display at least four of the indicators to be properly diagnosed with GID. Dr. Throckmorton met with the boy twice and concluded that the boy clearly displayed two of the DSM-IV factors, partially displayed one other factor and that two factors were completely missing. He concluded that the child did not have GID and did not recommend “real-life experience” or hormonal treatment. Dr. Fitzgibbons met with H and then met privately with the child.= Dr. Fitzgibbons concluded that the boy did not have GID and did not recommend “real-life experience” or hormonal treatment. He recommended counseling. The court concluded that Dr. Fitzgibbons’ analysis was a mixture of psychology and religion, and the court discounted his testimony. Dr. Lehne examined the boy on August 1, 2003, and diagnosed him with GID. The court was not convinced, though, that Dr. Lehne had any clear criteria for the diagnosis, and the court referred to the doctor’s methodology as “voodoo.” Dr. Pleak concluded that the boy met the DSM-IV criteria for GID, although the doctor considered him to be too young to actually be evaluated under the DSM-IV standards. He recommended that the child be permitted to explore the true nature of his gender, including the ability to wear girl’s clothing. From its interview, the court concluded the child expressed a desire to wear girl’s clothes and to have “girl stuff,” although he did not specify what “girl stuff” meant. The court found that the boy enjoyed stereotypical male activities such as wrestling with this brother, shooting his BB gun, and playing video games. The boy did not talk about participating in any stereotypical female activities except for wearing girl’s clothes. The court also found that the child’s friends were all boys and that he appeared to be attracted to one particular girl who was not attracted to him. The boy did not report being attracted to any boys except as general friends. He was not able to name any female heroes or idols. The court did not notice the boy exhibit any female mannerisms during the in camera interview. The court gave H custody of the children from Tuesday to Sunday and gave W custody from Sunday to Tuesday. Each parent was designated as a residential parent during their periods of custody. The court ordered the parties to keep both children enrolled in Toronto City Schools. The court ordered the older son to receive counseling if W and H could agree on a counselor, and if not, the court would choose one. boy was not to be encouraged or permitted to wear girl’s clothes. He was not permitted to go by a girl’s name or be referred to as “she” or “her.” W was specifically ordered not to refer to the boy by the name “Christmas.” The child was not permitted to attend transgender support groups and was to become “disassociated with that lifestyle,” absent agreement of both parties or further order of the court. Both Appellant and Appellee were ordered to obtain psychological evaluations of themselves and of their son. The purpose of the evaluations was to “aid the Court to determine, among other things, whether W is pushing [the child] toward a feminine identity or if H simply fails to see that which is plainly there to be seen.” The court issued its final order in this case and found that W was not likely to comply with future court orders. The court designated H as the sole residential parent. W appealed.

Issues

Rule of Law

Holding and Decision

Legal Analysis

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