Arguing for Parental Fitness for Transgender Parents

Custody disputes are nothing new. For transgender parents, however, the battles can become especially imbalanced, and even downright vile. The fact that a parent has transitioned becomes an issue raised as a reason to limit custody and/or visitation rights all too often. And judges may incorrectly believe that a transgender parent could have a negative impact on children if they have limited understanding around transgender issues.

The Child’s Best Interest 

Any custody dispute must be resolved with the child’s best interests at heart. That standard is no different when transgender parents are involved. The issues considered in Florida custody cases include:

1. The mental, physical, and moral fitness of each parent;
2. The geographical considerations of school-age children and time traveling to meet the goals of the parenting plan;
3. The stability of the environment in which the child has lived and the goal of maintaining such stability;
4. The capacity of each parent to put the child’s needs above their own;
5. The willingness and capacity of each parent to encourage a relationship with the other parent;
6. The ability and willingness of each parent to communicate with the other parent regarding the child;
7. The degree to which each parent is willing to protect the child from difficult issues related to the divorce and from disparaging the other parent;
8. The expectation of who will fulfill various parental responsibilities, and whether any of those responsibilities will be delegated to a third party following the divorce;
9. A child’s ability to adjust to the home, school, neighborhood, etc.
10. The child’s history relating to home, school, community, and family;
11. Each parent’s knowledge of the child’s situation related to the child’s school, teachers, extracurricular activities, friends, medical care, and so forth, and their willingness to participate in those areas;
12. The ability of each parent to provide stability and routine in daily life;
13. Any previous patterns of domestic violence;
14. Any plans of relocation;
15. The child’s wishes if age appropriate.

Nowhere is the issue of being transgender mentioned in the law. Nonetheless, there are those who would question a transgender parent’s fitness.

Case Law 

Case law offers no clear pattern of courtroom decisions related to custody issues and transgender parents. In Colorado, an appellate court reversed the decision of a lower court that took custody away from a transgender parent, finding that there was no evidence that the environment in said parent’s home was in any way dangerous to the children’s emotional or physical health.

Conversely, a judge in Ohio eliminated one parent’s visitation after hearing from an “expert” that a parent’s transsexualism would have a sociopathic impact on children. And a Nevada court found that a transgender parent essentially terminated her parental rates of her own accord when she chose to have surgery that discarded fatherhood. Meanwhile, in Washington, the reason given for denying primary custody to a parent was that the impacts of transgenderism on child custody are currently unknown.

Helping Kids 

While every divorce is unique, some guidelines for parents before, during, and after transition may be helpful:

1. Pursue guidance from a doctor or therapist while planning gender transition;
2. Consult a child psychologist or social worker before coming out to children as transgender;
3. If possible, collaborate with the other parent to decide on the appropriate time and strategy to come out to the children.

Advocacy for Transgender Parents 

Are you concerned about transgenderism being a factor in an upcoming child custody case?  If so, aggressive legal advocacy is essential.  At WiseLieberman our experienced Boca Raton family law attorneys always have your best interests in mind.  Schedule a confidential consultation today to discuss.