J.L.S. v. D.K.S.

KAROHL, Judge,

dissenting in part.

Except for an award of joint legal custody the trial court entered a remarkable decree in a difficult and unique case. It ruled without the benefit of factual precedent on the only source of dispute, father is a gender dysphoric. Mother did not allege or offer evidence to support a finding D.K.S. was not a loving father in all respects, at all times, except for his condition. She alleged his “adopted ... lifestyle [would be] extremely harmful to the children.” For that reason alone she would have the court deny the children any contact with their father, even visitation.

The trial court expressly found “[t]he evidence clearly established that Respondent was a loving and caring father; that the children had a significant bond with them father.” The key to a review of the decree is the court’s recollection of mother’s testimony, “she would not have a problem with his contact with [the boys] on an overnight basis ... if he acted in no way like a woman.” *776Another insight into the wisdom of the trial court are the provisions employed to reintroduce the children where the court found “Petitioner had interfered with the relationship of the minor children with their father, refusing to allow even telephone contact or letters to be received by the children, even though the children asked to see their father and had told Petitioner they missed him.”

The decree was supported by findings of the court that mother’s two experts had no experience in “gender identity disorders or transsexualism.” One of mother’s witnesses never saw the children. Mother’s other expert acknowledged the expertise of father’s expert and the court found his opinion did “not appear ... to be supported by medical authority as competent as that of [father’s] authority.” Mother’s witnesses would not support a finding, expressed or implied, of endangerment. The trial court found their testimony unconvincing and we are bound by that finding.

Father’s expert, Dr. Brown, was found to be “an expert’s expert” with vast knowledge of the subject matter. Dr. Brown recommended “that it was imperative that the children be reunited with their father ... [denial] ... would be the worst thing the court could do.” We must defer to the trial court where its findings and conclusions are supported by the evidence on all issues, including temporary custody, except the award of joint legal custody. Dr. Brown did not testify immediate visitation would cause the children harm because of his condition. He supported a gradual re-introduction to avoid harm. The court made no express finding of endangerment because of father’s condition. Considering the careful, lengthy and detailed decree, it is very unlikely it reached any implied finding of endangerment. The delay of temporary custody was supported as a matter of kindness and good judgment without evidence father was dangerous. He was not. The decree awarded delayed, unrestricted temporary custody to permit a gradual adjustment, not to change father or his new persona. The trial judge is no longer in office. The only certain result of a reconsideration of the temporary custody is hardship and continued estrangement. My analysis of this appeal follows.

J.L.S. (Mother) appeals from a decree of dissolution of marriage. D.K.S. n/k/a S.D.S. (Father1) cross-appeals from the same decree. All of the appeal and cross-appeal issues involve child custody and visitation.

Mother and Father were married on March 19, 1983. Two children were born of the marriage. The first child was born in 1986. He was eight years old at the time of trial. The second child was born in 1989. He was five years old at the time of trial.

The unusual circumstance in the marriage culminated in Father’s male to female “sex-reassignment” surgery. Father mentioned his gender-identity problem before marriage. He struggled with the problem throughout the marriage.

In June, 1991, the parties were living in Clinton, Maryland. The marriage was strained at this time. Mother brought the two children to Missouri to visit her family. When she returned to Maryland, Father told her he had seen a social worker about his problem. The parties saw a series of counselors and psychologists. Father requested a separation for one year while he participated in a “Real Life Test,” he would live as a woman “24 hours a day.” Prior to the separation, Mother and Father had a family talk with the boys.

On August 1, 1992, the parties separated. They signed a separation agreement which Father drafted. They agreed Mother would have “sole, permanent care and custody” of the children and Father would refrain from visiting them for at least one year. Mother filed a complaint for limited divorce in the State of Maryland. She filed a copy of the separation agreement with the Maryland court.

*777Father told a court-appointed psychologist that he did not intend to end the marriage at the time of the August, 1992, separation. He intended to have surgery, but wanted to remain married. He proposed that they continue to live together and the children call him “Aunt Sharon.”

Mother dismissed the Maryland dissolution cause of action. She moved to Missouri with her sons. Father has had no face-to-face contact with the boys since the August, 1992, separation. He tried to contact the boys by telephone and letter. Mother refused to allow any contact. Both boys have experienced emotional difficulties since the parties’ separation. The older boy expressed “suicidal ideations” and was prescribed anti-depressant medication. The younger boy was diagnosed with attention deficit disorder. Their afflictions were not attributed to father.

About two months before this case was tried, Father underwent sex-reassignment surgery. At trial, four health care experts testified about visitation issues. On July 19, 1995, the trial court entered its “SECOND AMENDED DECREE AND JUDGMENT OF DISSOLUTION OF MARRIAGE.” The trial court found, “[w]hile there was no request for findings, the court finds and believes from the evidence that it would be in the best interest and welfare of the minor children, that they be reunited with [Father].” It noted:

[t]he recommendations of both Dr. Brown and Ms. Marcus were that it was imperative that the children be reunited with their father. Both suggested that there be a period of counseling, in order for the children to adapt to the situation and to learn to deal with it.

It ordered:

1. Family Counseling:
(a)That [Mother], [Father] and the minor children engage in family counseling not less often than once each month for a period of twelve months, in order to effectuate the reunification of the family and contact with [Father].
% :{{ Hs :¡í s-J ❖
2. Child Custody:
(a) That [Mother] is awarded the primary care, custody and control of the parties’ minor children, ... subject to reasonable rights of visitation and temporary custody in [Father], provided during those periods in which the minor children are in the temporary custody of [Father], [Father] shall not cohabit with other transsexuals or sleep with another female. Said visitation and temporary custody shall commence on the third full weekend of the month on the twelfth month after the Entry of the Decree of Dissolution....
[[Image here]]
(b) That [Father] shall immediately be allowed telephone contact with the minor children at all times,....
[[Image here]]
(c) That [Father] shall immediately be allowed to send letters, gifts and other correspondence to the minor children, and [Mother] is ordered to deliver those items to the children. For the first sixty (60) days following the entry of the Decree, [Father] shall not discuss with the children gender related issues.
(d) That the parties shall confer with one another in the exercise of the decision-making rights, responsibilities and authority and have an equal voice on issues regarding the children’s training, education and rearing,....

In her first point Mother argues the trial court erred in removing restrictions on Father’s visitation on a specified date in the future without requiring, as a precondition to the removal of the visitation restrictions, a hearing or an affirmative showing by Father of rehabilitation and treatment. She relies on § 452.400.2 RSMo Cum.Supp.1993. The relevant portion of subsection 2 states:

2. The court may modify an order granting or denying visitation rights whenever modification would serve the best interests of the child, but the court shall not restrict a parent’s visitation rights unless it finds that the visitation would endanger the child’s physical health or impair his emotional development. When a court restricts a parent’s visitation rights or when a court orders supervised visitation be*778cause of allegations of abuse or domestic violence, a showing of proof of treatment and rehabilitation shall be made to the court before unsupervised visitation may be ordered. (Our emphasis).

Mother argues: (1) the trial court’s judgment delaying Father’s visitation for one year is a “restriction” of his visitation rights; (2) the trial court restricted Father’s visitation for the implicit reason that such visitation would impair the boys’ emotional development; (3) the trial court could not prospectively remove the restriction on visitation without subsequent proof of treatment and rehabilitation; and, (4) the trial court’s judgment misapplies the law and must be reversed because it removes its own restrictions on Father’s visitation without complying with the mandatory requirements of § 452.400.2 RSMo Cum.Supp.1993.

Father also relies on § 452.400.2 RSMo Cum.Supp.1993 for his cross-appeal. Father argues: (1) the trial court’s judgment delaying his visitation rights for one year is a “restriction”; (2) the trial court could not restrict his visitation because it did not make the required finding visitation would endanger the children’s physical health or impair their emotional development; and, (3) the trial court should have granted visitation effective immediately.

The parties have misinterpreted subsection 2 of § 452.400 RSMo Cum.Supp.1993. Subsection 2 addresses the modification of visitation arrangements. The judgment appealed from is the original grant of visitation rights.

Subsection 1 addresses the court’s power to grant visitation rights in the first instance. The relevant portion of subsection 1 states, “1. A parent not granted custody of the child is entitled to reasonable visitation rights unless the court finds, after a hearing, that visitation would endanger the child’s physical health or impair his emotional development.” Section 452.400.1 RSMo Cum.Supp.1993. The trial court must determine what “reasonable visitation rights” are under the circumstances of each case. In this case, the trial court honored the statute. It did not “restrict” visitation rights, rather it granted what it found to be reasonable visitation rights without finding endangerment. It made no finding of endangerment. We have no authority to impose an implied finding where it is not possible for an appellate court to determine, with certainty, the motive for the delay. The long separation alone, the separation and Father’s condition, or only Father’s condition may be the basis for the trial court’s decision. In the absence of evidence to support a finding where there is the possibility of various findings, there is no basis to reject the allowed visitation. In VanPelt v. VanPelt, 824 S.W.2d 135 (Mo.App. W.D.1992) the court considered a very different issue with reference to an implied finding of endangerment. There was only one possible basis for denying mother any visitation. The statute is unambiguous in assigning that responsibility to the trial court. The one-year delay is not a “restriction” for purposes of the statute, therefore no finding of endangerment to the boys’ physical health or impairment of their emotional development is necessary. There is no evidence to support the conclusion the implicit reason for the delay is impairment of the boy’s emotional development. It is an accommodation to the years of absence of contact caused by both parents. The relevant inquiry in this case is whether the trial court abused its discretion in awarding visitation to Father with no restrictions beginning on a certain date in the future, together with provisions designed to effectuate the reintroduction of Father with the children and children with Father. In Roberts v. Roberts, 810 S.W.2d 65 (Mo.App.1990), we affirmed the requirement of temporary arrangements guiding father’s visitation rights without a showing that this visitation would endanger the children’s physical health or impair their emotional development. Id. at 67. In Roberts we found:

[a] review of the evidence in the case discloses a lack of emotional control on the part of appellant and respondent incident to the breakup of their marriage and an inevitable effect upon the children. The trial court, within the authority granted pursuant to § 452.400, RSMo 1986, concluded that temporary restrictions on appellant’s rights of visitation would aid the healing process. Id.

*779The court did not abuse its discretion in imposing a temporary arrangement delaying father’s visitation rights. Under the circumstances of that case such an arrangement was reasonable.

In this case, Father’s own evidence supported the temporary delay of face-to-face contact for one year, to give all parties, especially the children, time to adapt to the dissolution and Father’s new identity. Responding to a question about what would be the appropriate process for reuniting Father with his children, Father’s expert testified, “It would start with telephone contact, conference call situations and then move on to personal contact down the road, depending on how things progressed.” Father’s expert also agreed with the statement that he was “not recommending to the Court ... that tomorrow or next Monday, whenever his order come [sic] down, that there be immediate contact [between Father and the children], ...” He suggested that the parties and the children would need counseling before personal contact to deal with the confusion which would naturally be felt by the children. Father’s expert invited the court to order a delay before Father see the children face-to-face. Under these circumstances, the temporary delay of face-to-face contact for a year while get-acquainted activities were in process was reasonable. Here, the parent not granted custody of the children was granted reasonable visitation rights in accord with his own evidence.

Furthermore, the provision in the judgment for the parties and the children to seek counseling “to effectuate the reunification of the family and contact with [Father]” is not a statutory restriction on Father’s visitation rights. The success or completion of counseling was not ordered as a pre-condition or limitation on the starting date.of Father’s temporary custody and visitation rights. The decree provides Father’s temporary custody and visitation rights “shall commence on the third full weekend of the month on the twelfth month after the Entry of the Decree of Dissolution” without pre-condition. The parties’ failure to benefit from the court’s request for counseling may be relevant to future proceedings. However, the counseling provision constitutes a request, rather than a restriction on Father’s visitation rights.

Father can not complain about the delay of face-to-face visitation. It was the testimony of his expert which supported use of the delay period to aid the children. His argument the trial court erred by delaying his visitation rights without finding visitation would endanger the children’s physical health or impair their emotional development is rejected.

The one year delay was not a “restriction” for purposes of the statute and it was reasonable. It applies an accepted and kindly approach to allow parent and child to be reacquainted after a pre-dissolution estrangement. Subsection 1 of § 402.400 RSMo Cum.Supp.1993 controls and not subsection 2 because the trial court’s decree grants visitation rights rather than modifies already existing visitation rights. Even if subsection 2 was applicable, Mother’s argument that § 402.400.2 requires a showing in this case of treatment and rehabilitation before the “restriction” on Father’s visitation is removed fails for two reasons. First, the delay is not a statutory “restriction,” it is preparatory of a present grant of unrestricted visitation. Second, the language in § 402.400.2 requiring such a showing is inapplicable because issues of abuse or domestic violence were not pleaded or tried. Therefore, a showing of proof of treatment and rehabilitation was not required before unrestricted visitation began. Mother’s first point that the trial court erred in failing to require such showing in the future should be denied.

Mother argues the grant of unsupervised visitation with a future effective date was in error for another reason. She claims it was an invalid judgment which attempted to prospectively modify a final judgment without evidentiary support for a finding the modification would, at the time it was to take effect, promote the best interest and welfare of the children. She relies on several cases where a judgment attempted to automatically modify the custody arrangement upon the occurrence of a contingent future event. Rice v. Shepard, 877 S.W.2d 229 (Mo.App. W.D.1994); Burch v. Burch, 805 S.W.2d 341 (Mo.*780App.1991); and, Haldeman v. Haldeman, 685 S.W.2d 570 (Mo.App.1984). In Rice, primary physical custody would revert to the mother if she “move[d] from Iowa to a Missouri residence within thirty miles of Kansas City.” Rice, 877 S.W.2d at 232. In Burch, the custody arrangement would not change “so long as [the mother] remains living with her parents.” Burch, 805 S.W.2d at 343. In Haldeman, the mother would receive primary custody “at such time as [she] shall permanently relocate within the United States ...” Haldeman, 685 S.W.2d at 571. All of these cases involved an automatic modification of custody arrangements upon a contingent future event. The passing of one year in this ease is not a contingent future event. Furthermore, Rice, Burch, and Haldeman involve a change in primary physical custody. Mother is complaining about a change in visitation rights where the court found she had actively shielded the children from their Father and prevented any contact, including telephone or mail communication.

Mother also argues the psychological counseling provisions of the decree are unduly vague and grossly inadequate to serve the purpose of preparing the minor children for visitation with Father at some time in the future. She argues the provisions are vague and inadequate because they do not require: (1) communication between or among counselors; (2) the issuance of formal or informal reports; and, (3) the presence or participation of counselors during the unsupervised visitation Father is to have one year after the entry of the decree. The success or completion of counseling was not a pre-condition or limitation on the starting date of Father’s temporary custody and visitation rights. Accordingly, the counseling provisions constitute a request which both parties ignore at their peril. It is clear from the evidence and the decree that the trial court wanted the parties and the children to seek counseling for the sole purpose of helping the children to adapt to Father’s absence for four years and his new identity. Consultation among counselors, or the issuance of reports may benefit the parties and the children and may occur but were reasonably thought to be unnecessary to the decree.

In her final point, Mother argues the trial court’s award of joint legal custody is unsupported by substantial evidence, an abuse of discretion and a misapplication of the law because there was overwhelming evidence that Mother and Father now do not share any commonality of beliefs regarding the raising of the boys. Section 452.375.1(1) RSMo Cum.Supp.1993 provides:

“Joint legal custody” means that the parents share the decision-making rights, responsibilities, and authority relating to the health, education and welfare of the child, and, unless allocated, apportioned, or decreed, the parents shall confer with one another in the exercise of decision-making rights, responsibilities, and authority;

Section 452.375.4 Cum.Supp.1993 provides,

... it is in the public interest to encourage parents to share decision-making rights and responsibilities of child rearing. In order to effectuate this policy, the court shall determine the custody arrangement which will best assure that parents share such decision-making responsibility and authority ... as is indicated in the best interests of the child under all relevant circumstances.

The statutory preference for joint custody “ ‘is not that of a forced joint custody in order to induce the parents to find a common ground.’ Rather, it is a preference ‘in favor of parents who show the willingness and ability to share the rights and responsibilities of child-rearing even after they have dissolved the marriage.’” (Our emphasis). In re Marriage of Johnson, 865 S.W.2d 412, 417 (Mo.App. S.D.1993)(citing Margolin v. Margolin, 796 S.W.2d 38, 49 (Mo.App.1990)). There must be substantial evidence to support an award of joint custody. Id. Where the record is devoid of substantial evidence that the parties have a commonality of belief concerning parental decisions and the willingness and ability to function as a unit in making those decisions, it is error for the trial court to award joint legal custody. Burkhart v. Burkhart, 876 S.W.2d 675, 680 (Mo.App. W.D.1994).

There was evidence to support a finding Mother and Father are not willing and able *781to function as a parental unit in making decisions involving child rearing. Apart from Father’s identity change, the ability to function as a parental unit will be hampered because of geography: Mother and children live in Missouri, Father lives in Virginia. Furthermore, Mother and Father have not acted as a parental unit for at least four years. This occurred originally by Father’s choice and subsequently by Mother’s restrictions on the children’s contact with Father.

A review of the evidence, yields no substantial basis for a finding the parties have a commonality of belief concerning parental decisions or a willingness and ability to function as a unit in making those decisions. The record is devoid of any substantial evidence of Mother and Fathers’ beliefs concerning parental decisions on education and health issues. The parties simply did not try the issue of joint legal custody to assist the trial court in following the relevant statute. The order granting joint legal custody is not supported by substantial evidence. I would remand to permit trial on that issue. The best interests of the children and the necessity for informed appellate review require the parties to present evidence to the fact-finder concerning their ability and willingness to function as a parental unit. In re Marriage of Johnson, 865 S.W.2d at 417.

Father argues in his cross-appeal, the trial court erred in ordering “[Father] shall not cohabit with other transsexuals or sleep with another female” during those periods in which the minor children are in his temporary custody. He argues this prohibition bears no relationship to the best interest and welfare of the minor children, is an undue hardship on him, and violates his constitutional rights. Father cites no cases to support his argument. His point violates Rule 84.04(d). If, as is the case here, the point is “one for which precedent is appropriate and available, it is the obligation of [Father] to cite such authority.” Thummel v. King, 570 S.W.2d 679, 687 (Mo. banc 1978). A point of error unsupported by a citation of relevant, available authority is deemed abandoned. Earl v. St. Louis University, 875 S.W.2d 234, 240 (Mo.App. E.D.1994).

Even if Father had not abandoned his point, because of the nature- of the issue, we could hold the trial court did not err in prohibiting Father from cohabiting with other transsexuals or sleeping with other women during the times when the children are in his custody. In J.P. v. P.W., 772 S.W.2d 786, 791-794 (Mo.App.1989) we discussed several Missouri cases involving the custodial and visitation rights of homosexual parents. We held that even when a two-year old child showed no ill effects from being exposed to homosexual behavior, “[t]he court does not need to wait ... till the damage is done.” Id. at 792 citing N.K.M. v. L.E.M., 606 S.W.2d 179, 186 (Mo.App.1980). In P.L.W. v. T.R.W., 890 S.W.2d 688, 691 (Mo.App. S.D.1994), we affirmed the trial court’s order denying the mother’s motion to modify the father’s visitation rights because father had engaged in unusual sexual activities during the marriage. In the opinion, we noted that the father’s actions had never occurred in the physical presence of the children. Id. at 692. I would adopt the analysis in J.P. v. P.W. In this case, the decree prohibits Father from cohabiting with a transsexual or sleeping with a female while the children are in his temporary custody. The prohibition is directed to behavior which would occur in the children’s presence.

The decree should be affirmed in all respects except the award of joint legal custody.

. D.K.S. n/k/a S.D.S. has undergone male to female "sex-reassignment” surgery. We will use the term "Father” to refer to D.K.S. n/k/a S.D.S. throughout the opinion. Father objected during the trial to any usage of male pronouns to describe Father. To avoid confusion and not out of any disrespect for Father’s wishes, we will use pronouns applicable to the parties when their children were born.