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Custody Disputes Involving Transgender Children

Connie Thacker 05/8/2019

A 2017 study by the Williams Institute, estimates that 1 out of every 137 children between the ages of 13 and 17 years old are transgender and 1.4 million adults are transgender. As a result, custody or parenting time disputes involving transgender and gender nonconforming children (TGNC) are increasing in the family court system.

Transgender sexuality has been studied for decades with findings indicating biological and brain structure differences between Cisgender (people whose gender matches the sex assigned at birth) versus transgender individuals whose sense of personal identity and gender does not correspond with their birth sex. Litigated family matters out of Ohio, Kentucky, California, and Alaska provide examples of the difficulty in navigating through the legal court system when divorcing parents have a transgender child.  More often than not, the court battles involve an affirming parent (supportive) and a non-affirming parent (not supportive).  Transgender children report more mental and physical health issues than Cisgender children mainly from the lack of affirmation and bullying.

As a result and obviously, in a divorce situation, transgender children are at higher risk of intoleration and difficulty in the divorce process if one parent is not supportive. Therefore, the choices of the child become part of the subject of a custody or parenting time dispute. As these cases make their way to the family court system, the bias either expressed or implied by judges, lawyers and other health professionals has a significant impact on these children.  As a result, the court system, lawyers and parents need to be educated and informed to have an appropriate effect on transgendered children, their choices and their best interests.

If your child is transgender, make sure you select an attorney who is educated and affirming if you are the affirming parent. Your attorney will have the great responsibility to educate the judge assigned to your case and have an impact on the experts selected by the court such as mental health experts, the Friend of the Court and other professionals.  A few of the cases that have made their way through the family court system include:

In the 2007 Smith v Smith case out of Ohio, the parents divorced when the child was six years old. The child repeatedly made comments that he was meant to be a girl.  As a result, his mother researched Gender Disorder of Childhood. As a result of her research, at age 9, mom allowed the child to attend a new school and use a girl’s name.  The action by the mom resulted in the father, who had minimal contact with the child, obtaining a restraining order and asking the court to award sole custody to him.  The court ordered the mother to cease referring to the child as a girl and stop allowing the child to wear girls’ clothing, and to halt counseling related to the child’s gender. Because the child did not state an attraction for males and since, from the judge’s perspective, the child’s mannerisms were not feminine enough, the judge concluded that the child should not have received a Gender Disorder of Childhood diagnosis. Even though the court-appointed therapists found that mother was “motivated by a genuine commitment to the child’s interests, while the father was less focused on the child’s needs and largely motivated by resentment toward his ex-wife,” the judge granted full physical and legal custody to the father.

In the 2009 Johnson v Johnson case out of California, the court ordered joint physical and joint legal custody to the parents of a transgender child.  The judge, in this case, accepted the child’s statements of gender identity and responded favorably to the mother’s request to ask the court to approve a phased plan for the child to explore gender issues. The court allowed the child to continue treatment with the therapist who was knowledgeable about gender nonconformity but also allowed the father to bring the child to religious-based counseling. Given the shared custody agreement and the differences between the two homes, the issue becomes whether or not these decisions were made with the best interests for the child in mind. Only time will tell

There are currently no published cases in Michigan related to custody or parenting time of transgender children. Therefore, if you are a Michigan resident, the selection of your attorney is vital to your child.

At Thacker Sleight, we are committed and affirming to transgender children.

Thacker Sleight

grand rapids office  •  616 888 3810
601 5th street nw, suite 210
grand rapids michigan 49504

grand haven office  •  616 888 3810

saugatuck office  •  269 857 9120

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