Shocking Perverse Incentives in SB 107

re-reading California's "kidnapping bill"

It’s worse than it seems, and California has just passed an incredibly dark piece of legislation that establishes astonishing perverse incentives. This will be complicated, but it’s worth the time.

Critics of California’s SB 107, signed into law recently by Governor Gavin Newsom, call it a “kidnapping bill.” Here’s one description, mistakenly calling Senate Bill 107 something else: “State Bill 107 will allow the State to seize children from their own legal parents who are not sufficiently ‘affirming’ of a child’s misguided wish to mutilate themselves and destroy their own lives.” Here’s a headline in a newsier descriptive piece: “Newsom Signs Bill To Let California Strip Gender-Confused Teens From Parents — Even When They Live In Other States.” Adding details, that story says that “California will now become a “refuge” for trans-identifying minors who seek irreversible medical treatment for gender dysphoria.”

But when I set out to read SB 107 myself, I realized something uglier.

Start with Gavin Newsom’s signing statement, which — describing a bill that news reports have said will allow California to take children from their parents — says that the bill does the opposite: “We must take a stand for parental choice.”

This is where it gets dark in a hurry, because he’s sort of not entirely lying, even though he’s lying. SB 107 isn’t about taking children from their parents, plural. It’s about child custody. It’s about taking a child from a parent, like Jeff Younger, and watch closely how this will work in practice.

It’s not unheard of for parents who are unhappy with post-divorce child custody arrangements to go jurisdiction shopping in search of a new custody ruling from a new court, and there are lawyers who specialize in interstate child custody litigation. Mom and dad get divorced in Carson City, Nevada, and the court says that dad gets primary custody, so mom moves to Truckee and — now a California resident — petitions a California court for a new custody arrangement.

So every state but Massachusetts has adopted the The Uniform Child-Custody Jurisdiction and Enforcement Act, which establishes four consistent jurisdictional rules across the country:

◆ Home State (reserved for the State in which the child has lived for at least 6 months preceding commencement of the action).

◆ Significant connection (exists when a State has substantial evidence about a child as a result of the child’s significant connections to that State).

◆ Emergency (governs situations such as abandonment or abuse that require immediate protective action).

◆ Vacuum (applies when no other jurisdictional basis exists).

So mom moves to Truckee, but it doesn’t matter: The Uniform Child-Custody Jurisdiction and Enforcement Act says that the Nevada courts have jurisdiction, since the child lives there, so the Nevada child custody ruling stands.

SB 107 alters the #3 condition, “emergency,” by defining the need for gender-affirming surgery as an emergency situation that gives California courts jurisdiction to decide on child custody in the case of a child from another state. It says that California courts won’t honor the jurisdiction or authority of “foreign” courts — foreign to California, so the courts of other US states or territories — in the case of laws in those jurisdictions “that interfere with a person’s right to allow a child to receive gender-affirming health care or gender-affirming mental health care.” The jurisdiction of California courts is established, and the jurisdiction of other courts is blocked, if “the presence of a child in this state for the purpose of obtaining gender-affirming health care or gender-affirming mental health care, as defined by Section 16010.2 of the Welfare and Institutions Code, is sufficient…”

Do you see it yet? Go back to my example: Mom and dad get divorced in Carson City, Nevada, and the Nevada court says that dad gets primary custody, so mom moves to Truckee and — now a California resident — petitions a California court for a new custody arrangement, during the child’s scheduled visit to her home. The court says that hold on a minute, the child is a Nevada resident, so jurisdiction belongs to the court in the child’s home state. And so mom says: “Oh, but your honor, my child is transgendered.” And with that, SB 107 rewrites the jurisdictional rules: California courts have jurisdiction. Even if mom is lying, and especially if her lie is sufficiently careful.

The assumption in the news coverage in that children who declare as transgendered will come to California to seek gender-affirming surgery for themselves. But the new law does something else, something remarkable: It incentivizes a divorced parent who wants more time with his or her child to report a gender crisis to the courts. Under the terms of SB 107, actual surgery isn’t required; all that’s required is the need for a child to have access to “gender-affirming mental health care.” So a parent reporting gender confusion and the need for immediate gender counseling can probably establish California’s jurisdiction.

The law, changing child custody jurisdiction rules, incentivizes a parent separating from or divorcing the other parent to invent, exaggerate, or pressure a childhood gender crisis into being: Oh, honey, mommy thinks you’re transgendered, don’t you think mommy knows her own child? You’re not going to argue with mommy in front of the judge, are you?

The point of SB 107 is that it allows a parent to defeat another, out-of-state parent for child custody by claiming that the child or children at the center of a custody battle is experiencing gender crisis that requires treatment, an act they have a chance to succeed in by Munchausening up a gender crisis. Tell your five year-old that he’s a girl twenty times a day, and get plane tickets for Los Angeles.

A Reuters “fact check” says this: “When gender-affirming care for a minor in California is the basis of a custody dispute, SB 107 tells California courts that they have clear jurisdiction to hear and decide the case.”

This is exactly the problem. The basis of custody disputes will become gender-affirming care when it allows one parent to disadvantage another parent. It’s a “transfer to our jurisdiction free” card for a parent trying to block another parent from having custody of a child.

I’m not a lawyer. If you are, I’d love to read your take on this.

Here’s the text of The Uniform Child-Custody Jurisdiction and Enforcement Act.

Here’s the text of SB 107, preceded on the page by the legislative counsel’s description.

This bill incentivizes a parent in a divorce to get to California and declare his or her children to be transgendered or in gender crisis, and to pressure the children to play along or to accept the description. If you get divorced in Texas and you want sole custody, haul ass to California with your child and say the magic words — “Your honor, my child requires gender-affirming care” — and the jurisdiction of Texas courts evaporates, leaving your ex-whatever helpless. No child custody for you, bigot-state troglodyte!

I suspect that armies of lawyers are preparing to fight this one out, but the potential for ugly individual cases is pretty clear.

ADDED LATER:

Just realized that Revolver was a day ahead on this take, with an argument about how red states should respond.