The October 6 decision in RSK v. DLK is non-precedential but still important because of the subject. The parties are parents of four children and have been divorced for a decade. One of those children KK was born as female but identifies as male. The appellate decision respectfully refers to the child with pronouns consistent with his aspired identity.
KK has been treated for gender dysphoria and has sought to employ a drug, Supprelin, to block development of female characteristics. Beginning in April 2022 the child has also received puberty blocking injections. These treatments come in the middle of what the appellate court describes as “dozens” of custody filings by KK’s parents. In 2020 the Court ordered an independent evaluation by a psychologist. Mother did not comply with that order. We’ll circle back on that.
A hearing was held in Bucks County in May, 2022 specifically related to the gender therapy. Testimony was adduced from the treating endocrinologist, the primary care physician and the child’s therapist. In addition, the child was interviewed with counsel present and a transcript made. At the conclusion of the proceeding, the court affirmed the puberty blocking treatment via injection but denied a request for surgical implantation of Supprelin. Father would continue to have primary custody of KK and his sibling. Legal custody would be joint.
A month later the parties were again back in court. It appears mother was seeking to have a second opinion related to the gender therapy. The experts again testified and counsel for the pharmacy participated. This hearing was not transcribed but the court ordered that mother review her request with the primary care physician and endocrinologist before proceeding with any alternate opinions.
In October, we are informed the Court ordered the treatment to continue. In response, Mother effectively blocked that treatment by informing the pharmacy that she had shared legal custody and was opposed. The pharmacy deferred further treatment based on that communication. This begot a November 2022 contempt proceeding by Father to secure the injection and to have the order modified so that Mother’s legal custodial rights could not obstruct the treatment approved by the court.
The mother’s response was a full barrel attack. The pediatric endocrinologist was lying. Father was having an affair with his attorney. The parties’ divorce was never properly entered. She sought full legal and physical custody of both minor children and wanted an evaluation by another group. Recall that she never cooperated in the evaluation ordered in 2020.
Mother next fired off what the court terms “an ex parte” emergency petition for contempt and modification of custody. This pleading suggests that father’s fiancé was pretending to act as mother and trying to have mother’s employment terminated. This resulted in a hearing in January 2023. Needless to say, this must have been quite an event. Importantly, it appears that Mother initially consented to KK’s gender treatment in 2020 but then had second thoughts. She professed that when she sought a second opinion Father had blocked it. But she had never complied with the order that she first consult with the child’s treating physicians.
On February 6, 2023, Mother filed this appeal. On the same day the trial court issued orders to grant Father legal custody for KK’s gender related medical needs and to resume the hormone therapy it had previously approved.
Curiously, Mother testified that she was not opposed to the injections which KK sought. On appeal, her contention appears to have been specifically related to the efficacy/contraindications of the two drugs which compose the therapy. She also contended that the court lacked authority to insist upon compliance with the psychological evaluation she had been ordered to undergo in 2020.
Suffice to say the orders were affirmed. But this issue is red hot in the appellate world as 23 states have adopted laws that restrict or ban transgender care. These cases present some unique constitutional issues. We have a large body of cases which hold that parents are the custodians of their children and state interference is limited to situations where parents act in ways that endanger their kids. A body of law recently enacted now limits and sometimes criminalizes this form of medical treatment finding it to be inherently dangerous although the medical community has little support for that finding. Then we have the U.S. Supreme Court which seems to be developing some coolness to rights of privacy as they have evolved in the last century. Unfortunately, we don’t know the age of KK but he may have some rights of his own when it comes to mental treatment. It is not clear that those rights extend to securing prescriptions for hormone treatment.
Like many appellate cases we are reading these days, there seem to be more and more appeals involving parties who are constantly demanding judicial attention to their custodial disputes. What is alarming about this case is the fact that three years after the court ordered a full psychological study of both parents, Mother was permitted to keep bringing new issues to the court for review while blatantly ignoring the order for evaluation.
R.S.K. v. D.L.K., 375 E.D.A. 2023 (October 6, 2023)