Split Decisions: Custody Battle Over Gender Identity

A 13-year-old is exploring gender identity in therapy—but when discussions turn toward potential medical decisions, a custody battle erupts.

In this episode of Split Decisions, two veteran family law attorneys go head-to-head over a high-stakes legal question: Can a minor keep therapy confidential from a parent, or does joint custody give both parents full access?

Both parents support their child’s identity—but they clash over privacy, parental rights, and the role of therapy in life-altering decisions. One parent demands access to therapy records, while the other argues that confidentiality is essential to the child’s mental health.

You be the judge: Should a child have the right to privacy or should a parent have the right to know?

Cast your vote and join the debate!

Transcript

SPEAKER_01 0:06

Every trial has two sides. Your therapist refuses any access whatsoever.

SPEAKER_00 0:11

Father has no right to interfere with the child's therapeutic process.

SPEAKER_01 0:16

Which one wins? You be the judge.

SPEAKER_00 0:18

This is split decisions where veteran divorce attorneys go head-to-head over real-life conflicts shaping today's family courts. Today's case is a custody battle over a 13-year-old navigating gender identity. Both parents support their child's identity, name, pronouns, and how they present, but they disagree on something much bigger. The child isn't therapy exploring identity and mental health. At first, both parents were on board.

SPEAKER_01 0:51

But then things changed. Alex is now discussing surgical interventions, not just social changes. Father wants to know what's being discussed in those sessions so he can know how to help his child. He believes as a parent, with joint custody, he has the right to that information. The father tried to talk to Alex, no answers. He asked mother, she told him to stay out of it. He went to the therapist, denied. So now he's going to court.

SPEAKER_00 1:16

The mother argues that confidentiality is critical to effective therapy, that forcing disclosure would break trust, limit honest communication, and harm the child's mental health. She's asking the court to protect the child's right to confidential therapy.

SPEAKER_01 1:30

The father argues that at 13, the child cannot decide to exclude a parent from something this important. He's seeking sole legal custody, arguing he's been completely cut out of critical decisions.

SPEAKER_00 1:42

So the legal question becomes: can the child legally shut a parent out of therapy and discussions about their medical choices?

SPEAKER_01 1:49

Or does joint custody mean a parent has the right to know what's happening in their child's treatment? I'm Tim Miranda. I'm representing the mother. I'm Carlos Tavares, representing the father. Good morning, Your Honor. We're here today on father's motion to modify custody. In essence, what happens is the child is 13 and in therapy, and that's been going along fine. No big deal. Father and mother both been on board with that. But now the child is talking about having surgery. My client has tried to talk to his son about it. Son won't talk to him. My client has now tried to talk to mother about it. She just ignores him. So now he's tried to approach a therapist to figure out what's being said, what's happening here, and the therapist refuses any access whatsoever. My client has no choice except to come to court today and seek intervention because of what is happening here. And I think my client believes that he should be able to inquire as to what's going on with regard to the therapist being a joint legal custodial parent. And that information is highly relevant based on the best interest of the child, because the next step from there is surgery, which is a whole nother legal standard. So my client would like to have the therapist disclose what's going on and be allowed to intervene so we can decide what's happening that has triggered this new issue of the child seeking therapy.

SPEAKER_00 3:14

Thank you, Your Honor. The current legal custody in this case is joint legal custody. So what is the change in circumstance that would compel the court to remove joint legal and vest sole legal with father? There is none. What I heard from the argument, what I know from the facts that you've also read is that Alex has decided that Alex may want to get some reassignment surgery. It's a thought. But I heard intervention. This is father intervening. This is father deciding that he knows best. So as Father just argued, initially everyone was on board. Alex had some opinions about name, pronouns, form of dress, and both parents accepted that. But now that Alex has decided that it may be something more, going to therapy and talking through this, father wants to remove joint legal custody, prevent my client from being a parent so that he can intervene and get more information directly because he doesn't like what he's hearing. I also did hear about best interest of the child. So what's in the best interest of the child? What the child who's thirteen wants? What the child who's thirteen is working through in confidence with their therapist? Or is it what dad wants because dad doesn't like what dad thinks is gonna happen? That's not the legal standard. There's another problem. There's a big impediment here for dad. That is the Family Code section 6924. 6924 precludes him from getting the therapist records because Alex must consent, because Alex is 13 years old. And of course, we know at age 12, Alex can consent. Alex meets the two prompts. He's mature, he can make the decision, he has capacity according to his therapist. Father, dad doesn't like that. Tough. And he's going to therapy to talk this through. And let's say that he didn't. Let's say that we abrogate that. What happens? He then has to navigate something so personal by himself without the assistance of a professional. Talk about best interest or lack thereof. That would be detrimental to the child's best interest in this case. So respectfully, while father, dad has a right to disagree with life decisions, he can't change the law, and he can't take my client's legal custodial rights because he doesn't like being told to leave the kid alone. Let the kid talk it through, work it out. And he doesn't like the therapist telling him, I'm following the law. Father needs to follow the law.

SPEAKER_01 6:03

Your Honor Counsel raises a good point citing 6924 and health and safety 124-260. Those codes do provide robust protections for the minor child in that therapeutic environment. However, that is not the environment we're in. The environment we're in is the issue of him wanting to now have surgery. So does the child have a right to therapy? It's fine. Dad's been supportive of that, everything's fine. Suddenly the child comes out and now is talking about having a surgery. Those codes do not protect surgeries and those types of decisions or medical operations. So while the child's in therapy, talking to a therapist, great. He's got a lot of protections there, fair enough. Our issue is that this therapist is cultivating the next action of therapy, which is kind of a hold on, this is too far. But now he's coming out saying, I want to have the surgery. And that shifts us into a whole nother issue under 3083 of the joint legal custody requirements. Surgery is a major condition requirement for both parents. The child at 13 does not have the ability to consent to such a surgery. And I pose that based on the fact patterns before this court, that surgery is being cultivated within this therapeutic environment. My client does not believe that it is coming from mother. It's certainly not coming from my client. Where is this coming from? But for having sat in therapy for a duration of time and suddenly now this is the bright idea that uh he's working through and has come out with. So while we're looking at this in just a therapeutic uh privileged uh dynamic, the reality is this is the causation dynamic leading us into the surgery, and that's the real issue. A surgery the court has to know under 3083 cannot be done without parental consent. Troxel, best interests, all of these stand up and take over all of this analysis. Under the best interest standard, the court has jurisdiction to make broad orders to protect that child. We think there's enough evidence before this court to say, yes, he does have certain privileges, but something is wrong in this therapy and it needs to change.

SPEAKER_00 8:11

So if we had more than just speculation that the therapist must be the cause of the problem, there might be a little bit more traction here, something for the court to chew on. But we don't have that. We have father saying, I don't like the direction that this is going, so it must be the therapist. So I want you to violate the law and let me get access to the records, which is only going to upset Alex even more because I don't trust him and I'm blaming it on somebody else. That's not going to work. If there were a surgery, and we were talking about 3083, that might be a different ball game, but we're not there yet. So it's not ripe. Right now we have therapy. We don't have a final determination or someone making a decision, meaning the child deciding, hey, I want to proceed with this or not. There are just discussions. We have to let those discussions play out. He's entitled to have his right to privacy to speak with his therapist, his privileged confidential communications, so he can make the right choice. And if that is the choice that he wants to make, and then father wants to try to step in and intervene and prevent the surgery, if that's what it is, then we'll be back here in court and we'll be talking about that. But for today, father has no right to any of those records, no right to interfere with the child's therapeutic process.

SPEAKER_01 9:32

Counsel makes a good point. It's speculative because we don't know if it's a therapist doing or the child doing it. And while everything he says makes perfect sense based on where it's going and what the court knows to this moment in time, we're just going to be back here in another month because of the natural progression of where this is going. The child's already said it. That's why we're in court now saying, hey, this is going too far. It needs to stop now. We're just going to end up coming back, and it will be a harder knot to untangle if we have to come back in two months and untangle a deeper knot into this rift of, I want surgery.

SPEAKER_00 10:09

Now the decision is yours. Should a 13-year-old have the right to keep therapy confidential from a parent?

SPEAKER_01 10:14

Or does a parent have the right to be fully informed about their child's mental health treatment? Cast your vote in the comments or the poll. This is split decisions where the arguments collide and you decide.

SPEAKER_00 10:26

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