to have an accepting and nurturing response to the concerns of their gender dysphoric child or
adolescent without imposing a binary view of gender.
211 These professionals should then provide
information and help families weigh the potential benefits and challenges of decisions regarding
the timing and process of any gender role change for their child.
212 Families should also be
informed that as the child nears puberty and options for physical interventions become relevant,
further assessment may be needed.
213 Ultimately, the best option for the child is to find a solution
that both parents can readily agree upon. If this does not happen, then the court will need to utilize
other resources to make their decision.
During a custody proceeding, an independent advisory council should be convened with
the exclusive intent of protecting the child’s best interests. The council’s goal should be to provide
an impartial, educated recommendation to the court as to what the course of treatment should be.
This council should consist of a psychologist, an appropriately experienced doctor possessing the
ability to provide treatment, and legal counsel in the form of a child representative.
advisors should both individually and jointly provide the court with recommendations after
working with the child in order to suggest a preferred method of treatment. The council’s
recommendation should factor in, on a case-by-case basis, the minor’s desires regarding their
treatment. The older and more mature a minor is, the more deference the council will give to his
or her wishes.
The concept of an advisory council is not unheard of in hospital settings. St. John
Providence Health System, which is located in the Detroit/Metro-Detroit area, utilizes an ethics
council to step in when conflicts arise between patients and/or parents not agreeing on a method
215 Under St. John’s policy, the Ethics Council makes recommendations and shares
resources, ideas, and best practices regarding treatment decisions and issues.
While the judge would still hold discretionary power over the issues in the case, the
involvement of a team of experts dedicated to the child’s best interests will provide the court with
better information. To minimize the potential for judges relying on their own subjective opinions,
the recommended approach is to let the judge be guided in his decision-making by: (a) relevant
empirical evidence, (b) the rights of the child, and (c) the child’s own wishes.
A judge’s ability to recognize a positive conception of children’s rights is crucial. Courts
should strive to identify the minor as a rights-bearer, whose interests are separate and apart from
those of their parents.
218 “It also requires that judges must give careful attention to the precise way
in which the content of a child’s right is to be interpreted so as to ensure their effective
211 Coleman et al., supra note 9, at 175.
213 Id. at 176.
214 See CIRCUIT COURT OF COOK COUNTY, Child Representative/Guardian Ad Litem,
nAdLitemGAL.aspx (last visited Apr. 22, 2016) (“A guardian ad litem (also known as a “GAL”) is an attorney for
the parties’ child(ren) . . . . the guardian ad litem may be called as a witness for purposes of cross-examination
regarding the guardian ad litem’s report or recommendations”) (“A child representative is an attorney for the parties’
child(ren) that advocates what the child representative finds to be in the best interests of the child(ren) after reviewing
the facts and circumstances of the case . . . . Unlike a guardian ad litem, the child representative cannot be called as a
witness to testify.”).
215 See generally Ethics Council Guidelines, ST. JOHN PROVIDENCE HEALTH SYSTEM ETHICS COUNCIL 320, (2012).