Family Law Issues Affecting Transgender Persons

Custody is a term that refers either to with whom the child will live (physical custody) or who will have authority for making major decisions regarding a child’s medical care, education, religious upbringing, and other decision (legal custody). Visitation refers to the time a non-custodial parent will be able to spend with a child. When the relationship between parents breaks down, courts often get involved in dealing with questions about how decisions will be made that involve children, and how parents will share time with their children. Most states have guidelines for determining child custody and visitation. These are mainly premised on the best interest of the child.

Some courts have held that a parent’s transgender status is not relevant to child custody unless there is specific evidence of harm to the child. For example, in Kantaras v. Kantaras, a Florida trial court awarded primary custody to a transgender parent based on expert testimony that the parent was the more stable parent and that his transgender status did not affect his parenting ability. This decision was upheld despite the fact that Florida law did not recognize the marriage between the transgender parent and his spouse. 

Being transgender should not alone affect a court’s determination of a parent’s custody or visitation rights. However, some courts are biased and prejudiced, and have  denied the transgender parent visitation rights on the basis that a child may be confused if they see their parent transitioning. Courts, in some cases, have denied visitation or custody to parents who violate court-imposed rules prohibiting them expressing their chosen gender identity.

This is exceedingly rare. In the past, a few courts have gone as far as to terminate parental rights of transgender parents. The legal trend has shifted from terminating parental rights based on transgender status to determining that while undergoing a gender reassignment is not itself grounds for terminating parental rights, the process of transitioning may be harmful to a child. 

If a transgender person and his or her spouse or partner have children through assisted reproduction, the transgender parent should be sure to take all possible steps to secure his or her legal relationship to the children independently of any underlying marital relationship. Where possible, the transgender parent should obtain a parentage judgment or complete an adoption of the children with the express consent of the other parent. The purpose of obtaining such an adoption is to ensure that if the couple separates, the non-transgender parent cannot challenge the transgender spouse’s parental rights by seeking to invalidate the marriage since, in many states, a person cannot be a legal parent unless he or she is a biological or adoptive parent or married to a child’s biological or adoptive parent. It is best to get in touch with an attorney to find out what jurisdiction offers the best protections for transgender parents, and what additional steps a transgender parent needs to take given where they live.

Some organizations with transgender or transgender-friendly attorneys include the National Center for Lesbian Rights (NCLR), Lambda Legal Defense and Education Fund, the National Center for Transgender Equality, and the Transgender Law Center.

If these non-profit organizations are not able to help or not in your area, many state and local bar associations also have lists that identify LGBT-friendly and experienced attorneys. Located in Washington D.C., Lal Legal has extensive experience working with LGBT clients, and protecting the rights of the LGBT community. Make an appointment for a consultation today.