Part 2: Trans Parent Custody
This is PRIDE month, and we are looking at family law issues that are specific to the LGBTQIA+ community. In Part 1, we discussed the difficulties LGBTQIA+ parents face in custody cases. Those issues can be daunting enough, but for transgender parents custody cases can be even more complicated.
The courts have often been unkind to transgender parents. Prior to Obergefell v. Hodges, transitioning could invalidate a marriage in a state that outlawed same-sex marriage, taking away a parental status that was based on that marriage. While this is no longer the case, custody cases often go against transgender parents based solely on the harm that courts assume will come to a child raised by a transgender person. Judges tend to be older, and older individuals tend to have less understanding and a more negative attitude about transgender people and issues.
North Carolina as of now has no case law on the topic. In other states, cases vary wildly. Some states, like Colorado, have held that a court could not deny custody based solely on the transition of a transgender parent. In other places, judges are free to assume that living with a transgender parent will cause children harm, having a “sociopathic effect” or “unknown impact” that cannot be risked. Due to the classification of gender dysphoria as a mental illness, transgender parents may also face accusations that they are too mentally ill to care for children or that they are unable to provide their children with a healthy gender role model.
Expert testimony and empirical data can help a judge understand the medical and psychological realities of being transgender and perhaps help counter any biases that a judge may carry. Testimony from your psychologist, a child psychologist, or your child’s counselor can also help establish that your child would not be harmed by your gender identity or social or medical transition.
Considering gender identity or transition status in custody decisions may also be unconstitutional. Under the Fourteenth Amendment’s Due Process Clause, parents have the right to parent their child as they see fit, unless it causes harm to the child. Therefore, in order for a parent’s gender identity to be considered when making a custody decision, the other parent should have to show a direct connection, or nexus, between that identity and a specific harm to the child. North Carolina claims to use this Nexus Test in custody cases, although, as we discussed in Part 1, that isn’t always what actually happens. Under the Due Process Clause, people also have the right to make their own medical decisions, including a medical gender transition, without the law discriminating against them for making that decision.
A parent who is considering coming out as transgender or beginning a medical transition can take steps to help prevent losing custody of their children in the future. If you want to come out to your children, discuss the issue with a child psychologist or social worker first. They can help you talk to your children in a healthy way and ease any difficulties that your children may have at first. When you choose to transition socially, be sure that you are seeing a mental health professional regularly. If you choose to transition medically, do so under the care of a medical specialist who can support and explain your transition to a court later if necessary.
All of these issues can seem overwhelming, especially when you are already dealing with the stresses of coming out or transitioning, but as in other LGBTQIA+ cases a family law attorney can help you navigate these difficulties and maintain your relationship with your children.