A new Florida state law grants Florida courts temporary emergency jurisdiction over transgender minors, allowing them to ignore court orders and custody determinations made in other states.
New Yorkers planning to travel with or send underage transgender children to Florida, or who are engaged in custody disputes of transgender children who might be brought to Florida, are urged to seek legal counsel.
DETAILS
Bill CS/SB 254, effective May 17, 2023, grants Florida courts temporary emergency jurisdiction over a child present in the state, if the child “has been subjected to or is threatened with being subjected to sex-reassignment prescriptions or procedures.”
Neither the child nor the parents have to be Florida residents, the child just needs to be “present in the State of Florida.”
Possible scenarios include a child visiting Disneyworld with a parent(s), a teen vacation in Miami with friends, a minor sent to visit a non-custodial parent, grandparent, or other relative, or even a child abducted to Florida by a non-custodial parent.
Theoretically, an adult willing to take temporary custody of the minor isn’t even needed. Florida authorities may seize and take the child into custody at their discretion, even by force.
Pointedly, the bill prohibits Florida courts from ruling that a child was unjustifiably removed from the legal parent’s custody.
The new law defines sex-reassignment prescriptions and procedures as inflicting “serious physical harm to the child,” equating them with mistreatment and abuse, thus allowing the state to intervene. The intention or parental consent to undergo gender reassignment is likewise considered a threat made against the minor, though how this would be proven is unclear.
Another uncertainty in the law’s language is that it seems to also include the child’s siblings, allowing for them to be moved to Florida as well.
If a minor is brought to or remanded in Florida under this temporary emergency jurisdiction, the courts will issue an ex parte order (an emergency order given in an urgent matter that can’t wait for a hearing, usually when a child is at risk of being harmed) awarding temporary custody to another parent or relative. They may also issue a restraining order, as with an abuser.
The law further allows Florida courts to “vacate, stay or modify” another state’s custody order.
On the other side of the equation, non-custodial parents living in Florida may now find themselves being denied their visitation rights by the custodial parent in another state, which New York courts will likely allow, or at least not sanction. Custody and visitation agreements may likewise be revisited and potentially amended by a New York court.
OTHER PROVISIONS
Other provisions included in the new law prohibit any sex-reassignment prescriptions and procedures for patients younger than 18, and prohibits public entities from using state funds for sex-reassignment prescriptions or procedures.
Under the law, a health care practitioner who is “committing or attempting, soliciting, or conspiring to commit specified violations related to sex-reassignment prescriptions or procedures for a patient younger than 18 years of age” is to be arrested and their license immediately suspended.
The law also requires transgender adults and those planning to transition to obtain written consent from oversight medical boards, whose members are appointed by the governor.
CONTEXT
The law purports to grant Florida courts emergency jurisdiction under the Uniform Child-Custody Jurisdiction and Enforcement Act (UCCJEA), which is meant to deter interstate parental kidnapping and promote uniform jurisdiction and enforcement provisions in interstate child-custody and visitation cases.
49 states and some territories adopted the UCCJEA, including Florida, but the new Florida law is likely to face legal opposition, and is already facing fierce criticism, by other states for including sex reassignment under its emergency jurisdiction power and for ignoring other states’ custody orders.
The law is the latest in a recent flurry of legislation restricting LGBTQ rights in Florida, including drag shows, bathroom usage, and pronouns allowed in schools.
It remains to be seen if the new law is deemed unconstitutional when it is inevitably challenged in federal court and whether it even stands to judicial scrutiny in Florida courts.
Joseph Milizio is the Managing Partner of Vishnick McGovern Milizio LLP and head of the LGBTQ Representation practice. He also leads the firm’s Surrogacy, Adoption, and Assisted Reproduction and Business & Transactional practices. He can be reached at jmilizio@vmmlegal.com and 516.437.4385 x108.
