COVID Vaccination, Gender Fluidity, and Family Law

I don't quite know what to make of all this, but it seems like an interesting case, and I thought I'd pass it along. From Anaya-Alvarado v. Anaya-Alvarado, decided last week by the Nevada Court of Appeals; the ex-wife now "identifies as gender fluid/transgender and prefers masculine or androgynous pronouns" and goes by Jasper and the ex-husband is Carlos. They "were married from 2013 until 2017" and have two children, "S.A., born in 2014, and A.A., born in 2016." Here's an excerpt from the opinion:

After their divorce, the parties filed a joint stipulation and order in October 2017 granting Jasper sole legal and physical custody of the children. Then, in June 2019, the parties filed a joint stipulation and order permitting Jasper and their new husband to relocate to Hampton, Virginia, with the children.

In January 2021, Carlos filed a motion to modify custody that was based, primarily, on his concerns about the children's gender fluidity and Jasper's decision to support the use of some strong psychiatric medications that had been prescribed to S.A. in 2020. {The record reflects that Carlos was aware of the children's gender fluidity before he agreed to the June 2019 stipulation and order.}

On May 16, 2021, the district court entered a temporary order granting Carlos joint legal custody that directed Jasper to "keep [Carlos] apprised of the children's medical treatments." … In the fall of 2021, Jasper and Carlos had a disagreement over whether to vaccinate the children against COVID-19. Jasper wanted to vaccinate the children; Carlos did not. In addition, the controlling June 2019 physical custody order entitled Carlos to parenting time with the children in Las Vegas for Christmas 2021; but Jasper was concerned about the children visiting Carlos and his new wife, … because they were both unvaccinated.

Therefore, in November 2021, in advance of the upcoming planned December visit, Jasper filed a motion and request for an order shortening time seeking the district court's permission to vaccinate the children against COVID-19, or alternatively, to postpone the children's upcoming visit to Las Vegas. In early January 2022, the district court denied Jasper's motion; however, by that time, Jasper had already withheld Carlos's Christmas 2021 parenting time in violation of the June 2019 custody order. Then, immediately after the district court denied Jasper's motion, Jasper vaccinated and boosted the children against COVID-19 in violation of the district court's temporary order and against Carlos's wishes.

In May 2022, the district court held a full-day evidentiary hearing, where it again addressed Carlos's January 2021 motion to modify custody but this time for the purpose of determining permanent custody…. After the hearing, the district court issued a 39-page order with detailed findings of fact and conclusions of law, awarding Carlos primary physical custody of the children and providing that both parents would continue to share joint legal custody. The district court disagreed that the children's gender fluidity was a substantial change of circumstance affecting the welfare of the children. However, it found that Jasper's violation of court orders regarding COVID-19 vaccination and withholding parenting time from Carlos during Christmas 2021 did satisfy the requirement of changed circumstances. The district court then evaluated each of the best interest factors enumerated in NRS 125C.0035(4), ultimately determining that it was in the children's best interest for Carlos to have primary physical custody and for both parents to have joint legal custody. Because the change of physical custody would necessarily require the children to relocate from Virginia to Nevada, the district court also addressed the standards for relocation set forth in NRS 125C.007 and found that relocation was warranted….

The temporary legal custody order was not void

[Details omitted. -EV]

The district court did not abuse its discretion when it found a substantial change in circumstances based on Jasper's violation of valid and, enforceable court orders

… [E]ven if the [January 22] order did not expressly prohibit Jasper from ever vaccinating the children, the order clearly denied Jasper's request for permission to vaccinate the children over Carlos's objection, at a time when Carlos had joint legal custody of the children. Furthermore, Jasper admitted that immediately after receiving the court's order, Jasper had both children vaccinated and boosted against Carlos's wishes. So, even if Jasper were correct that the January 2022 order was ambiguous, Jasper's unilateral decision to vaccinate both children against COVID-19 knowingly against Carlos's wishes and immediately after the district court denied them permission to do so, necessarily violated Carlos's rights under the May 2021 temporary custody order….

The district court did not modify custody to punish Jasper for violating the court's temporary orders …

In this case, the district court provided a detailed analysis of the substantial change of circumstances requirement. When evaluating this requirement, the court rejected Carlos's argument that the children's gender fluidity was a "substantial change of circumstances" because it predated the controlling June 2019 custody order. And Jasper contends that this particular finding was correct. However, the court further determined that Jaspers "pattern of violating Court orders regarding medical issues and withholding visitation" from Carlos (both of which occurred after the June 2019 custody order) constituted "a substantial change of circumstances, affecting the welfare of the children." Based on Jasper's testimony, the district court found that Jasper would continue violating court orders and undermining Carlos's joint legal custody rights if Jasper thought it best to do so, and that this constituted a change in circumstances. We decline to second-guess the district court's factual findings….

[T]he district court [also] addressed in detail the best interest factors set forth in NRS 125C.0035(4)…. [T]he district court found several best interest factors weighed in favor of Carlos, including the following: NRS 125C.0035(4)(c) (which parent is more likely to allow the children to have frequent associations and a continuing relationship with the noncustodial parent); NRS 125C.0035(4)(d) (the level of conflict between the parents); NRS 125C.0035(4)(g) (the physical, developmental, and emotional needs of the children); and NRS 125C.0035(4)(h) (the nature of the relationship of the child with each parent).

In reviewing these factors, the district court addressed concerns that did not relate to Jasper's violation of court orders. For instance, when discussing the level of conflict between the parents, NRS 125C.0035(4)(d), the court noted that Jasper had threatened to accuse Carlos of kidnapping after sending the children to stay with him and found that if "[Jasper] does not obtain what is requested, [Jasper] will not hesitate to cause additional conflict." When evaluating the ability of both parents to meet the children's physical, developmental, and emotional needs under NRS 125C.0035(4)(g), the court noted that the children both suffered from mental and physical issues, but that Jasper had done nothing to address their needs since December 2020, and struggled to articulate the children's learning disabilities. And when addressing the nature of the children[']s relationship with both parents under NRS 125C.0035(4)(h), the district court determined that the factor favored Carlos because there was no direct testimony about the children's relationship with Jasper, Carlos described a "fun and loving" relationship with the children that involved "going to the park and doing affirmations," and Jasper was unconcerned about Carlos's relationship with their children. Based upon the foregoing, we conclude that the district court did not clearly abuse its discretion or make its final custody determination for an inappropriate reason.

Jasper has not shown that the district court modified custody due to bias or prejudice against Jasper's transgender status and parenting style

Finally, Jasper contends that the district court's rulings in this case may demonstrate a bias or prejudice against Jasper[']s transgender status and parenting style. As evidence of the district court's alleged bias, Jasper points to statements made by Carlos at the evidentiary hearing about their "biologically male" children "wearing girl's clothing," Carlos's testimony about his church teachings, and Carlos's inability to accept the children's gender fluidity because it conflicts with his values. Yet, Jasper fails to explain how statements made by a party litigant indicate bias on the part of the district court in this case in reaching its decision, particularly where "judicial rulings alone almost never constitute a valid basis for bias or partiality motion." …

{The district court [also] recognized that both parties had violated court orders, thus it could not say the factor weighed more heavily in favor of Jasper or Carlos; "[Carlos] admits to stopping the child's medication, when [Jasper] maintained sole legal custody, without consulting with [Jasper]. [Carlos] also cut the child's hair without consulting [Jasper], [Jasper] unilaterally vaccinated the children for Covid without [Carlos's] permission (while the parties had joint legal custody) and contrary to court order. [Jasper] also withheld Christmas 2021 visitation unless [Carlos] and his wife received vaccinations. This factor is neutral."}