That’s not likely to happen; the real problem with the trans refuge law centers on how it assists and encourages interstate parental kidnapping, which will exact enormous harm on the children caught in the middle
In April 2023, Gov. Tim Walz signed a bill that, as the Minnesota House of Representatives news service reports, “establishes Minnesota as a ‘trans refuge’ state.” Since the law passed, there has been a highly charged debate over whether this law allows the state of Minnesota to take custody of a child to protect their access to what the law refers to as “gender-affirming care.”
Despite all that has been said and written from both sides, no one seems to have published a thorough analysis of how the new law changed a parent or guardian’s primary role in directing health care decisions for a child experiencing gender dysphoria in Minnesota. The following analysis aims to fill that void.
After examining the debate and the law, a critical element missing from the public discussion is an examination of how the new law coordinates with existing law and policy at both the state and federal level. Very few laws exist in isolation, and Minnesota’s trans refuge law is no exception. The law amends Minnesota law related to establishing jurisdiction over child custody determinations, but these changes also interact with state laws on jurisdiction in other states, Minnesota’s juvenile protection laws, and the federal Parental Kidnapping Prevention Act (PKPA). Considering these laws together leads to several important conclusions:
- The law assists parental kidnapping by creating an exception to uniform child custody laws passed in all but one state;
- The law puts obtaining gender-affirming care on par with abandonment and abuse to give Minnesota emergency jurisdiction to modify custody orders from other states;
- The law takes jurisdiction from states that have the best evidence to inform the best interests of the child in an initial custody hearing;
- The law authorizes Minnesota courts to modify custody orders from other states in violation of federal law;
- The law directs state courts to consider a new substantive standard in the child custody determination process to aid children seeking gender-affirming care; and
- By adding this new standard, the law gives Minnesota the authority to take custody from parents to enforce a court order requiring gender-affirming care for their child.
Trans refuge law amends “uniform” child custody law
In the context of child custody determinations, the trans refuge law amends statutory provisions related to when a court has authority to exercise temporary emergency jurisdiction and initial child custody jurisdiction. These statutory changes amend the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) that the state adopted in 1999. This is a uniform statute adopted by every state except Massachusetts to provide a uniform standard across the country for determining the proper judicial forum in custody disputes involving other state jurisdictions.
As the text copied below shows, the trans refuge law adds inability to obtain gender-affirming care to the short list of situations that allows a state court to take temporary emergency jurisdiction if the child is present in the state.
In cases where there is no previous custody determination, the trans refuge law also expanded the state’s authority under Minn. Stat. 518D.201 to make initial child custody determinations in certain cases when the child is in Minnesota to obtain gender-affirming care. Unlike the exercise of temporary emergency jurisdiction, an initial child custody determination is not temporary and would allow the parent to retain custody in Minnesota.
Interplay with other laws
To fully understand Minnesota’s change to the UCCJEA requires an examination of the interplay of the UCCJEA with the juvenile protection provisions of Minnesota’s Juvenile Court Act and the federal Parental Kidnapping Prevention Act (PKPA). Minn. Stat. 260C governs juvenile safety and placement. In the context of situations that might involve disputes over gender-affirming care, the statute governs juvenile protection proceedings involving a child in need of protection or services.
In addition to the UCCJEA, the federal PKPA also governs state jurisdiction over child custody. Like the UCCJEA, the PKPA attempts to create a uniform standard among states for determining jurisdiction in child custody matters. The PKPA generally requires states to enforce the custody determinations made by another state. If a state statute conflicts with the PKPA, the federal law controls and preempts the state statute.
Fact checkers fail to assess the full legal context, rely on sources who support the law
Before exploring the interplay of these laws in more detail, it’s worth reviewing how various “fact checkers” assessed how the new law changed custody determinations. Reporters with the Washington Post, Agence France-Presse (AFP), and Snopes all fact checked whether the law allows courts to take custody of a child if the parent prevents the child from receiving gender-affirming care. If true, this would be an extreme position which could undermine support for the law and the lawmakers who approved it. Thus, supporters have argued the law takes a more moderate approach. They assert the text of law, as discussed previously, only allows a court to step in to resolve custody disputes between two parents who live in different states and the child is unable to obtain gender-affirming care.
To uphold this more moderate position as a fact, each of these news outlets focused only on the text of the bill and then, to interpret the new law, relied on people who would clearly support this more moderate position. The Washington Post relied exclusively on Kat Rohn who is the executive director of Outfront Minnesota, a St. Paul-based LGBTQ+ advocacy organization. To confirm their reading of the statute, Snopes relied simply on citing Kat Rohn’s assessment from the Washington Post. Notably, Rohn does not appear to be an attorney as there is no record of someone with the last name Rohn registered to practice law in Minnesota.
To their credit, AFP did reach out to an attorney. However, they relied on Courtney Joslin, a University of California, Davis law professor who has a clear bias. Her faculty bio notes that before joining the UC Davis faculty she “spent six years litigating and advocating on behalf of lesbian, gay, bisexual and transgender people, and their families.” There’s nothing wrong with having a bias as nearly everyone does, but a reporter, especially one purporting to be a fact checker, needs to consider a source’s bias and look for alternative viewpoints when a clear bias exists. AFP did not do this. This is particularly important for AFP fact checks considering they are a news agency funded, in part, by the government of France and by law are supposed to be an “independent voice free from political, commercial or ideological influence.” They are also paid by social media companies to identify “false information,” which, at least in the case of TikTok, is then subject to censorship and removal in several countries across the globe.
Law assists parental kidnapping by creating an exception to the uniformity of the UCCJEA
These fact checkers entirely failed to assess how the new law fits in with existing laws governing child custody and child protection. Only AFP, because they did talk to a real lawyer, hinted at how this new law amends and fits in with the UCCJEA. However, AFP never actually discussed this law. If they had just named the law, an astute reader might have asked: Why is Minnesota amending a “uniform” law? Doesn’t that undermine its uniformity?
Minnesota was among the first states to enact the UCCJEA in 1999. Since then, every state, with the exception of Massachusetts, has passed the uniform law. The purpose of the law, according to the U.S. Department of Justice (DOJ), is “to deter interstate parental kidnapping and promote uniform jurisdiction and enforcement provisions in interstate child-custody and visitation cases.” To that end, the law governs a state court’s jurisdiction over child custody determinations and generally requires participating state courts to enforce a child custody decision of a court of another state if it conforms to the standards of the uniform law. Before states enacted the UCCJEA, the DOJ explained how the old system “fostered child abduction and forum shopping: Because parents with physical possession of a child could choose the forum that would decide custody, parents had a legal incentive to abduct children.” The DOJ further lamented how “[a]bducting parents benefited under this system, but their ‘seize and run’ tactics exacted a heavy toll on children and the judicial system.”
Minnesota’s trans refuge law creates a clear exception to the uniformity of the UCCJEA. As the text of the law clearly shows, Minnesota added a new factor to the otherwise uniform approach that empowers a state court to take temporary emergency jurisdiction to protect the child in cases of abandonment and abuse. Normally, under the UCCJEA, a state court must recognize a custody decision from another state. But in emergency situations involving abandonment and abuse, a state court can ignore, at least temporarily, another state’s custody decision. Notably, these two exceptions are intended to be used only in extreme circumstances. Before the UCCJEA, a previous uniform custody law included “neglect” in this exception, but this was dropped to ensure that states gave full faith and credit to other states’ custody decisions unless there was an immediate danger to the child’s well-being. Importantly, it was also dropped to align with the federal PKPA.
Thus, the new law adds a clear exception to an otherwise uniform state law established to deter interstate parental kidnapping. A child’s gender dysphoria may present a serious and difficult mental health issue, but it clearly does not rise to the level of immediate danger to the child that the UCCJEA intends to address under the temporary emergency jurisdiction provision. By going beyond situations that put the child in immediate danger, the new gender-affirming care exception for temporary emergency jurisdiction in Minnesota’s trans refuge law creates a clear exception to the UCCJEA’s framework for deterring interstate kidnapping. As such, the new law, at a minimum, assists parental kidnapping in cases where a child is unable to obtain gender-affirming care over the objections of the child’s other parent.
Fact checkers universally ignored how the uniform nature of the existing law aimed to deter parental kidnapping and, therefore, never acknowledged how a rogue state’s amendment to this uniformity would unquestionably undermine this deterrence.
California court rules affirm the law is not just procedural
As noted previously, AFP is the only fact checker that bothered to contact a lawyer to understand the legal change, but they relied exclusively on a law professor with a clear bias. Prof. Joslin claims “the law is really just procedural — setting forth rules for determining in which state a custody action between two parents who live in different states should be filed.” She goes on to assert: “It does not set forth substantive rules for how to allocate custody as between those parents. And, it does not address in any way when state officials can take custody of a child away from a parent.”
Remember, this is a law professor from the University of California, Davis. California passed a nearly identical law in 2022, which Minnesota Democrats largely cut and pasted into Minnesota statute in 2023. Therefore, this professor almost certainly knows how the California law is being implemented and this implementation shows how the law clearly goes beyond the procedural.
At the same time Minnesota was passing the trans refuge law, the Judicial Council of California—the policy making body of the California courts led by their Chief Justice in accord with the California Constitution—was accepting and reviewing comments on how to implement California’s version of the law. As the council’s request for comment explained, their proposed amendment to judicial rules states:
The proposed amendment to rule 5.151 would require the party to file a case in family court and then file the documents specified in subdivision (c) of the rule to ask that the California court issue temporary emergency orders to modify an out-of-state child custody order so that the child can obtain gender-affirming health care or gender-affirming mental health care in this state. [Emphasis added]
This amendment goes well beyond procedural. Rather, it establishes a rule that allows California courts to modify out-of-state custody orders to allow a child to obtain gender-affirming care in California. This clearly changes the substance of custody determinations in California, not just the process. The rule goes on to recognize that this is not a normal situation involving the standard petitions the courts use in custody proceedings. Indeed, this case involves parental kidnapping. To assist in this kidnapping, the request for comment on the California rule states:
… a party may simply want to register the out-of-state child custody orders in this state and then ask the court to issue temporary orders that modify those orders so that their child can obtain gender-affirming health care or gender-affirming mental health care in California.
Without question, these are substantive changes that allow California courts to modify an out-of-state custody order for the sole purpose of obtaining gender-affirming care. These changes to the California Rules of Court went into effect on January 1, 2024.
Minnesota’s trans refuge law imposes the same substantive changes that assist interstate parental kidnapping. Regrettably, by assisting this type of kidnapping in these difficult family situations, the law encourages parents to resort to the seize and run tactics that had previously, according to the DOJ, “exacted a heavy toll on children and the judicial system.”
Law asserts initial custody jurisdiction over children with no connection to Minnesota
In addition to amending the UCCJEA’s temporary emergency jurisdiction provision, Minnesota’s trans refuge law also amended the UCCJEA “initial child custody determination” provisions in a manner which creates another opportunity and incentive for interstate parental kidnapping.
A court must only step in and make a custody determination to recognize a change in custody or to resolve custody disputes. In cases where a court has not made a prior custody determination, the UCCJEA establishes four jurisdictional bases that can give a state court authority to make an initial custody determination. These bases aim to ensure that this initial custody determination is made in the state where the child and the parents have the strongest connection. The principal basis is whether the state is the “home state” where the child has lived for six consecutive months or was the home state within the past 6 months and where at least one parent continues to live. If there is no home state, a state may also exercise jurisdiction if the child and at least one parent have a significant connection to the state. The other two bases involve situations where states decline jurisdiction after determining another state offers a more appropriate forum or where no other state would have jurisdiction.
The national uniformity of this process for establishing initial child custody jurisdiction avoids situations where two states could assert jurisdiction. This protects the child from being kidnapped from the state with the strongest connection to the child by one parent and then moved to another state where the kidnapping parent might find a friendly forum to establish custody. Minnesota’s trans refuge law undermines this protection by allowing Minnesota courts to take initial child custody jurisdiction in certain situations when a child is in the state for the purpose of obtaining gender-affirming health care. Specifically, the trans refuge law provides that being in Minnesota to obtain gender-affirming care creates the necessary “significant connection” with Minnesota to authorize jurisdiction when there is no home state.
This represents a dramatic change from the significant connection standard. As the UCCJEA Guide for Court Personnel and Judges explains, the significant connection standard exists to establish “whether there is sufficient evidence in the State for the court to make an informed custody determination.” Minnesota law now sets aside any consideration of the availability of evidence for a judge to make an informed custody determination when a child is in Minnesota to obtain gender-affirming care. In effect, Minnesota law now declares that evidence on the need to obtain gender-affirming care is more important than evidence on a child’s experience living in another state when deciding the merits of an initial child custody petition.
This is arguably a more subversive change to the UCCJEA because an initial child custody order in this situation is not temporary. Rather, to advance a radical gender ideology, Minnesota law now directs courts to make a permanent child custody order without the benefit of evidence from the state where the child has been living to inform their determination on what is in the best interests of the child.
It may seem like this situation would be rare, but it could be triggered any time within 6 months of two parents and their child moving out of their prior home state. Thus, after a move from any state in the country, there is a 6-month window for a scheming parent to kidnap their child for an initial custody hearing in a friendlier forum in Minnesota. Really, the only reason to make this change to Minnesota statute is to give one parent—e.g., a parent supporting medical interventions to align the child’s appearance with their gender identity—an opportunity to game the UCCJEA to gain an upper hand in a custody dispute. While this would presumably need to involve a child with gender dysphoria, it’s not hard to imagine a parent fabricating a gender identity issue to gain an advantage.
As discussed in more detail below, other states will not need to respect Minnesota’s initial custody determination because it would not substantially conform to their UCCJEA or the PKPA, but some out-of-state courts may respect Minnesota’s determination. In the end, this change in Minnesota law will only set up the child to experience an even more toxic custody dispute than would have happened if custody were initially determined in the state that truly holds a significant connection to the child.
Federal preemption under the PKPA
Recall the federal government enacted the PKPA to, like the UCCJEA, create a uniform standard among states for determining jurisdiction in child custody matters. As the U.S. Supreme Court explains in Thompson v. Thompson, the PKPA “imposes a duty on the States to enforce a child custody determination entered by a court of a sister State if the determination is consistent with the provisions of the Act.” Specifically, the law requires states to enforce and not modify any custody determination made by another state that is made consistent with the requirements of the PKPA.
As the Court explained, “Congress’ chief aim in enacting the PKPA was to extend the requirements of the Full Faith and Credit Clause to custody determinations.” Congress needed to step in because a custody determination in any given state is always subject to modification to adjust to the best interests of the child. Because the U.S. Constitution’s Full Faith and Credit Clause only requires one state to apply the judgments of another state with equal force, all states were equally free to modify a custody determination. This contributed to what the Court called “a national epidemic of parental kidnaping.”
Because the UCCJEA was drafted to align with the PKPA, any amendment to the UCCJEA risks conflicting with the PKPA. As discussed previously, the California Rules of Court were changed to allow state courts in California to modify out-of-state child custody orders so that a child can obtain gender-affirming health care or gender-affirming mental health care in California. As Minnesota’s law mirrors California, Minnesota law now empowers the state’s courts to make the same modification to an out-of-state custody order. Such a modification would appear to directly conflict with the PKPA.
Like the UCCJEA, the PKPA allows a state to take jurisdiction when “it is necessary in an emergency to protect the child because the child, a sibling, or parent of the child has been subjected to or threatened with mistreatment or abuse.” A modification of a custody determination to obtain gender-affirming care clearly does not rise to the level of an emergency situation involving mistreatment or abuse under the PKPA. Therefore, any modification to an out-of-state custody order to obtain gender-affirming care is preempted by the PKPA.
No doubt defenders of the trans refuge law would argue withholding gender-affirming care constitutes mistreatment. However, mistreatment generally involves intentional acts that create harm or pose a serious risk of harm such as physical or sexual abuse. At most, withholding gender-affirming care might be considered neglect. Importantly, neglect is not a basis for emergency jurisdiction under the PKPA. A DOJ funded guide for court personnel and judges on applying the UCCJEA discusses its relationship with the PKPA. As it explains: “The PKPA’s definition of emergency jurisdiction does not use the term ‘neglect.’ It defines an emergency as ‘mistreatment or abuse.’ Therefore ‘neglect’ has been eliminated as a basis for the assumption of temporary emergency jurisdiction.”
The guide goes on to note: “Neglect is so elastic a concept that it could justify taking emergency jurisdiction in a wide variety of cases.” Without this elastic language in the PKPA, no state court could reasonably treat the withholding of gender-affirming care as an emergency situation that would justify modifying an out-of-state custody order under the PKPA. Nonetheless, California courts finalized rules allowing such modification in direct conflict with the PKPA. By passing the same law, the Minnesota legislature and Gov. Walz have directed the Minnesota courts to likewise ignore federal law.
PKPA depends on state courts for enforcement
Generally, when a state law conflicts with federal law, someone challenging the state law can sue in federal court. However, the PKPA does not include a cause of action to sue in federal court and, in Thompson v. Thompson, the U.S. Supreme Court has ruled that there is also no implied cause of action. As the Court explained, the presumption “that the States are either unable or unwilling to enforce the provisions of the Act” was not one the Court was “prepared … to indulge.” Thus, the federal law depends, at least initially, on state courts to enforce the PKPA.
We’ve already seen that California courts are willing to adopt rules in conflict with the PKPA. As such, state courts in California are, so far, unwilling to enforce the PKPA. How Minnesota courts would address a request to modify an out-of-state custody order remains to be seen.
State courts are not the final arbiters over this federal question. As the Supreme Court noted, “ultimate review remains available in this Court for truly intractable jurisdictional deadlocks.”
Therefore, so long as a parent has the fortitude and financial resources to litigate an illegal custody modification through each level of a state’s court system, the parent can make a final appeal to the U.S. Supreme Court. A public interest litigation firm would likely support a parent’s fight through this legal gauntlet and ultimately prevail. But there will be a substantial cost to parents and children caught in these legal disputes before the Supreme Court has an opportunity to issue a final ruling.
PKPA only applies when there is an existing custody determination
The PKPA only covers situations where another state has made a custody determination. Many children, maybe most, grow up in family situations where a court never needs to establish custody. Therefore, even if Minnesota courts properly enforce the PKPA, many parents who never needed to establish custody in court will still be in a position to kidnap their child and request temporary emergency jurisdiction or initial child custody jurisdiction to obtain gender-affirming care. This is true even if they have no previous connection to the state of Minnesota.
Any child with a parent who kidnaps them to obtain gender-affirming care or under the pretense of obtaining gender-affirming care will likely have another parent fighting to protect them from the kidnapping parent taking such a radical step. Therefore, under this circumstance, Minnesota’s trans refuge law will only serve to instigate jurisdictional competition and conflict between states. This is what the UCCJEA and the PKPA aimed to avoid in order to protect against, as Congress expressed, “the shifting of children from State to State with harmful effects on their well-being.”
Fortunately, outside of California, no other state is compelled to enforce a custody determination from a Minnesota court that relies on the state’s trans refuge law for its jurisdiction. The UCCJEA specifically requires a state court to only “enforce a child custody determination of a court of another state if the latter court exercised jurisdiction in substantial conformity with [the UCCJEA].” A state taking jurisdiction so that a child can obtain gender-affirming care colors well outside the lines of the UCCJEA. Because Minnesota mirrored California, each state’s laws do substantially conform to each other and each is now compelled to enforce gender-affirming care jurisdiction. It’s not hard to imagine a judge in Oregon, New York or another liberal state straining to read Minnesota’s law as substantially conforming to their state law as well.
In this circumstance, the analysis is straightforward. Minnesota now allows state courts to take jurisdiction over child custody determinations in a way that does not conform with the UCCJEA or PKPA. This, by itself, is a radical departure from decades of state and federal law aimed at protecting children from protracted custody battles in competing state jurisdictions.
Controversy over in-state custody determinations
So far, this analysis has focused on interstate child custody cases when the child comes to Minnesota to obtain gender-affirming care and how the trans refuge law expands Minnesota’s authority to take jurisdiction over child custody determinations from another state. But what about in-state custody determinations? Does the trans refuge law change how state courts will make child custody determinations when the child lives in Minnesota and the state properly asserts jurisdiction under the UCCJEA and the PKPA?
This is the question that raised so much controversy in the media and prompted “fact checkers” to get involved. The fact checkers were specifically responding to a tweet from Megyn Kelly—a former Fox News journalist and host of one of the most popular podcasts in America—which claimed, “Tim Walz signed a bill that lets the State take away ur kids if you d/n/agree to sterilize them & chop off their body parts in the name of ‘gender affirming care.’ So if your 14-yr-old is sad but thinks it’s gender confusion & u object to castrating him, the St takes custody”.
This is where the legal issue starts getting uncomfortable. Many people might wince at reading this tweet. However, Megyn Kelly’s extreme example isn’t just her musing about what the outer bounds of gender-affirming care might mean. The trans refuge law specifically defines gender-affirming care to include “interventions to align the patient’s appearance or physical body with the patient’s gender identity.” This definition clearly includes the surgical procedures Kelly provides as examples. If the trans refuge law does impact in-state custody determinations, then Kelly’s tweet needs to be taken very seriously.
Trans refuge law introduces new substantive standard to the UCCJEA
Defenders of a more modest reading of the law claim nothing in the law addresses when Minnesota can take custody of a child from a parent. Recall the words from Professor Joslin quoted previously, “the law is really just procedural” and “does not address in any way when state officials can take custody of a child away from a parent.” Here, Joslin is arguing that the impact of the statutory changes is confined to how a Minnesota court will address interstate custody disputes under the UCCJEA.
On its face, Joslin’s argument may seem reasonable because the trans refuge law’s custody provisions only amend the UCCJEA. Yet, when courts address child custody issues, they recognize there is an interplay between the UCCJEA, state juvenile protection statutes, and the federal PKPA. As explained by the Minnesota Court of Appeals: “Under the UCCJEA, a ‘child custody determination’ includes determinations made in both CHIPS [children in need of protection or services] and TPR [termination-of-parental-rights] proceedings.” CHIPs determinations are governed under the state’s Juvenile Court Act. Thus, the UCCJEA and the Juvenile Court Act work together to guide child custody determinations.
In a different case, the Minnesota Court of Appeals also stated: “The substantive standards relating to child custody and visitation are not relevant to the issue of whether a court has the authority under the UCCJEA to exercise jurisdiction.” This would appear to support the claim that the trans refuge law made only procedural changes, not substantive changes. The UCCJEA governs the procedure for establishing jurisdiction to make the custody decision and the Juvenile Court Act governs the substance of making the custody decision. Yet, this argument ignores how the addition of obtaining gender-affirming care to the statute reintroduces a substantive factor to the UCCJEA.
Minnesota adopted the UCCJEA in 1999 to replace the Uniform Child Custody Jurisdiction Act (UCCJA) in order to align with the federal PKPA and address decades of inconsistent case law. When the Minnesota Court of Appeals explained that substantive standards for child custody determinations are not relevant to the UCCJEA, they referenced how the UCCJEA eliminated the term “best interests” to clearly distinguish between the jurisdictional standards and the substantive standard over child custody determinations.
Against that history, Minnesota’s trans refuge law adds the new term “gender-affirming health care” to the UCCJEA. In doing so, the trans refuge law reintroduces a substantive standard to the UCCJEA aimed at guiding the outcome of a child custody determination. As discussed previously, the California courts made the substantive nature of this new factor clear when they adopted rules on jurisdiction to reach a substantive outcome—making it possible for a child to obtain gender-affirming care.
Thus, in addition to setting procedural standards, the UCCJEA in California, and now Minnesota, directs courts to consider a substantive standard in the child custody process to aid children seeking gender-affirming care. The law itself makes a substantive determination that a range of gender-affirming care medical services and procedures, including irreversible surgeries, can be an appropriate treatment option for children with gender dysphoria or simply a gender preference different from their gender at birth. With that determination now imbedded in state law, Minnesota courts must now determine if it is in the best interests of the child to receive gender-affirming care when a parent petitions for custody. If yes, the court must take jurisdiction and, in doing so, take the side of a parent seeking gender-affirming care and oppose the parent who believes gender-affirming care will harm their child.
UCCJEA gender-affirming care standard carries forward to the merits of a custody determination
Once a court has determined gender-affirming care is in the best interests of the child to take jurisdiction, the court cannot ignore this new substantive standard when it moves on to consider the merits of a petition for custody. The UCCJEA and the Juvenile Protection Act work together to promote the best interests of the child. Because the UCCJEA now includes a substantive standard related to the best interests of the child, that standard will carry through as a consideration in a final custody determination under the Juvenile Protection Act.
In the AFP fact check, recall Professor Joslin specifically claimed the law “does not set forth substantive rules for how to allocate custody.” Yet, the UCCJEA in Minnesota now clearly elevates the inability to obtain gender-affirming care to an emergency situation requiring temporary emergency jurisdiction equivalent to abandonment and abuse. It also elevates being in Minnesota only to obtain gender-affirming care over and above having sufficient evidence to make an informed custody determination when allocating custody in an initial child custody determination. These changes do not, as Joslin claims, address “very technical questions” about jurisdiction. Rather, they are highly substantive changes directed at modifying how courts determine what is in the best interests of the child.
A court must acknowledge how Minnesota law now elevates the importance of gender-affirming care within the child custody determination process. Now that state law includes a determination on this substantive standard at the jurisdictional phase, that determination will carry forward to the merits phase of a custody determination. There is no way a judge will wipe the slate clean and, in considering the merits, set aside all of the arguments they just heard on why asserting jurisdiction is in the best interests of the child to help them obtain gender-affirming care in Minnesota.
New gender-affirming care standard applies to in-state custody determinations
Because there is now a substantive standard on gender-affirming care in the UCCJEA that carries forward to the merits of a child custody determination under the Juvenile Protection Act, the trans refuge law is not limited to interstate custody disputes. Minnesota courts must determine their jurisdiction under the UCCJEA over a child custody petition as a starting point for all child custody petitions. Therefore, this new standard applies to all child custody petitions even if gender-affirming care is not raised at the jurisdiction phase of the process.
This means courts will need to consider access to gender-affirming care in purely in-state custody disputes between two parents living in Minnesota. If this is not true, then the state would be applying separate substantive standards to allocate child custody depending on how the court established jurisdiction.
Getting to the heart of Megyn Kelly’s claim, this also means the elevation of gender-affirming care as a substantive standard for determining child custody is now a factor in determining whether the state can take custody from parents to provide gender-affirming care to their children. If gender-affirming care is considered in determining the best interests of a child under one child custody petition, how can it be treated differently under another petition?
The statutory path for the state to take custody
So far, this analysis has established how the trans refuge law adds a substantive standard on gender-affirming care to the UCCJEA which carries forward through the child custody determination process. And, because the child custody determination process must treat children equally, this gender-affirming care standard must apply to all child custody petitions. Minnesota law does provide a path for the state to take custody when the child is in need of protection or services. Minnesota’s trans refuge law substantially widens that pathway to allow the state to take custody when the state determines a child needs gender-affirming care.
The Juvenile Court Act which governs juvenile protection is codified at Minn. Stat. 260C. The statute includes several situations that define a child in need of protection services. These include situations when a child “is without the special care made necessary by a physical, mental, or emotional condition because the child’s parent, guardian, or custodian is unable or unwilling to provide that care” or “is medically neglected.” By elevating access to gender-affirming care to be on par with abuse and abandonment, it is no stretch to conclude that Minnesota law, at a minimum, permits courts to conclude that a child is in need of protection or services when a parent is unwilling to provide gender-affirming care.
If a court does conclude that a child is in need of gender-affirming services and the parent is unwilling to provide such services, Minn. Stat. 260C.201(a)(4) empowers courts to order the child’s parent to provide it. Specifically, the law provides that if a court determines a child “is in need of special services or care to treat or ameliorate a physical or mental disability or emotional disturbance,” then “the court may order the child’s parent, guardian, or custodian to provide it.”
If a parent fails to follow this order, the statute establishes rules on transferring legal custody to obtain care. To transfer legal custody, the court must make written findings “that the child’s disability is the result of abuse or neglect by the child’s parent or guardian.” Notably, the statute restricts a court from taking custody solely because the parent is “unable” to provide the care, but not if the parent is unwilling to provide the care.
At multiple points, the statute relies on a finding of neglect to justify the court action, including how a court defines a child in need of protection and whether a court can take custody. As noted previously, neglect is an elastic term that can justify a wide variety of determinations. Therefore, a Minnesota judge has substantial room to find that a parent who is unwilling to provide gender-affirming care is, in fact, neglecting their child. As a result, the statute offers a path for the state to take custody from a parent to provide gender-affirming care.
In theory, this result might have been possible before Gov. Walz signed the trans refuge law due to the elasticity of the term neglect. However, the trans refuge law cements in statute the state’s policy position in favor of providing gender-affirming care. As a result, courts must now follow this policy when considering the best interests of the child. This fact charts a clear path for the state to take custody to provide gender-affirming care.
Conclusion
Contrary to the shallow analysis from fact checkers, a closer look at these statutory provisions shows that Megyn Kelly is right. The law does pave a path for the state to take custody from parents to enforce a court order to perform gender-affirming care on their child. Admittedly, Kelly’s extreme example becoming reality is highly unlikely. But that does not diminish the fact that the new law makes this possible. Kelly’s point demonstrates just how radical the trans refuge law is.
The more immediate and undeniable problem with the trans refuge law involves how the law assists parental kidnapping by creating an exception to the UCCJEA. In this circumstance, the law opens opportunities for parents to create interstate battles over their child’s custody that promises to exact an enormous toll on any child caught in the middle. Avoiding this harm to children is why Congress passed the PKPA in 1980 and why all but one state adopted the UCCJEA. By enacting the trans refuge law, Minnesota lawmakers opted to undermine the child protections imbedded in those laws to, instead, advance a radical gender ideology.