Transgender individuals face unique legal challenges when it comes to marriage and parenting. In this guide, we will look at some of those issues and provide some guidelines for navigating potential issues.
While most states recognize same-sex marriages, California has no gender requirement for marriage and strongly supports transgender people's right and ability to be successful parents. Just because someone is a transgender parent should not put them at risk of their visitation rights being lessened or denied due to their gender identity or their expression thereof. The law may well be interpreted differently in other states, which is why transgender individuals should consult with a legal expert before entering into marriage or starting a family.
In addition, the state of California allows transgender individuals to legally change genders. This allows you to marry as different-sex spouses, which in turn allows your marriage to be recognized more broadly. Entering into a memorandum of understanding before your marriage provides additional legal coverage. It includes a statement whereby the non-transgender spouse acknowledges awareness of his or her spouse's gender status and expression. Speak to a San Diego lawyer who specializes in transgender issues about this option.
As a transgender parent, there are some things you can do early on to protect your legal parent-child relationship from ex-partners, hostile family members or judges. If you're not the biological parent to children who recognize you as their parent, legally adopt them in order to protect the relationship.
If you are married, you can protect your marriage by drawing up a last will and testament with your spouse, as well as contracts that lay out:
- the rights and responsibilities of both spouses towards the children;
- medical and financial powers of attorney;
- and a memorandum of understanding regarding the fact that you are transgender.
Ideally, individuals should take as many steps as possible towards transitioning and legally changing their gender and having their birth certificates amended before they are married. Not only does this limit legal issues relating to marriage, but it can also provide protection in the event of a custody dispute in the future. However, if you were married as different sex partners and then transition, the marriage remains legal – nothing changes.
There are many options for transgender people to become parents, and in order to be legally recognized as a child's parent in California, one or more of the following should apply:
- you must be a biological parent
- you must have adopted the child
- you and your domestic partner or spouse must have had the child together while registered as domestic partners, or married
- or you must have lived with the child and presented yourself to the public as the child's parent.
You can secure your parentage in different ways. Couples making use of assisted reproduction using donor eggs or sperm must sign a consent form to acknowledge their intention to become parents. You should also be aware of the fact that the state allows for a child to have more than two legal parents. This provision allows for same-sex couples and biological parents to share parental rights and responsibilities regarding their children. Do not sign a form that waives your parental rights if you provide reproductive materials.
A parent may not challenge the validity of a parent-child relationship which he or she helped to create. A transgender person’s position cannot be changed to the prejudice of someone who has relied upon it.
Protecting Your Rights as a Transgender Parent
The fact that your name is on the child's birth certificate is not enough to afford you the same rights as a legal parent. You also need a parentage or adoption judgment from the court if you wish to be recognized as your child's parent, even outside of California. This is especially important if you are not the biological parent.
Knowing your rights from the start will ensure that you don't lose your visitation and custody rights, as they will be much more difficult to re-establish once they have been lost.
Some family law attorneys, court personnel, and judges may not be experienced in dealing with new laws, which may make it difficult for transgender parents to assert their rights. This may be made worse when a person comes out as transgender to their family after having children. The other parent and even an inexperienced judge may be concerned about how the transgender parent's transition may affect the child's wellbeing.
All custody battles are complex and emotionally challenging and transgender parents face additional challenges when society and the justice system fail them through ignorance. The court cannot limit or change custody or visitation orders because of the parent's transition, unless that or the parent's expression can be shown to hurt the child. Decisions regarding transgender parent's rights - as with any other custody or visitation rights - must be in line with the child's best interests. Unfortunately, it can happen that transgender parents lose access to their children due to arguments that a parent's transgender status may harm the children emotionally or socially.
Navigating Your Transition
If you still wish to come out or start the transition, it is important to enlist all the help you need to make the process as smooth as possible. Of course, every person and household situation is unique, so not all recommendations may be applicable. Here are some guidelines to help you handle the process:
1. Discuss your transition process with a therapist
Some transgender parents have found their spouses to be much more understanding and accepting of the process when it was considered part of a gender dysphoria treatment plan recommended by a therapist or doctor. The cooperation between spouses can also make the adjustment more positive for the children.
2. Help your children through the adjustment process
Speak to a social worker or child psychologist prior to coming out to your children. A professional may provide useful insights into helping your children adjust more easily to your transition. Preschool children tend to adjust more easily to a transition and teens will often require more support.
3. Include the other parent in your plans
Cooperation between both parents tends to help support a positive adjustment for the children. Open communication about your plans with the other parent before sharing it with the children can help encourage communication. In the event of a court battle, a judge will be compelled to acknowledge your efforts in trying to foster cooperation.
Transgender Parenting Custody Disputes in California
Birth certificates in California have used the gender-neutral term "parent" instead of "mother" and "father" since the beginning of 2016. However, parents may change the terms retroactively on the birth certificates of children born before 2016. At the time, more than fifteen thousand same-sex couples were parents, according to the U.S. Census.
California law bases initial visitation and custody on the child's best interests. Some considerations include:
- the quality of the child's relationship with each parent;
- the parent's ability to provide for the child physically, emotionally and provide an education;
- the willingness of each parent to support a relationship between the child and the other parent;
- the stability of the homelife each parent is able to provide;
- the child's wishes, if the court deems the child mature enough.
In order for a parent to modify a custody order, the parent wishing to make the amendment has to demonstrate a significant change in circumstances. Unless the non-custodial poses a threat or emotional or physical harm to the child, the court favors liberal visitation.
When parents are unable to agree on custody arrangements, they will have to turn to the court for assistance. The court will deal with various types of evidence, depending on the legal matter, which may be an initial custody determination, or a custody modification. The judge should apply the same standards for custody and visitation to transgender parents that would apply to any other parents and all available evidence should be put on, including:
testimony from parents and witnesses who know the family about best interest factors.
testimony from experts such as psychologists who have evaluated the family regarding the custody arrangement that is in the child's best interest. A guardian ad litem (GAL) may also investigate and make recommendations on behalf of the child.
Children who are deemed mature enough to have a preference on the custody arrangements may choose to either state their preference during a private meeting with the judge, or testify in court.
On issues regarding reasonable visitation rights of the non-custodial parent, expert testimony will be required. This will include testimony from a psychologist on the importance of maintaining relationships with both parents.
Transgender Parents and Foster Care
Foster care and adoption agencies follow a rigorous process - including rigorous investigations and interviews - for approving prospective parents. There are stats that explicitly ban lesbian and gay couples from adopting children, but transgender individuals have the same rights as cisgender people in California, which means that they should not be denied from fostering or adopting children simply because of their gender expression.
Specific Evidence Pertaining to Transgender Parents
Some parents argue that the other parent's transgender status makes him or her an unfit parent. Transitioning is often viewed as a selfish indulgence, in which case a lawyer may present evidence that the transition was undertaken for medical reasons and argue that it has already alleviated a significant source of stress and helped improve the parent's mental health, which helps make one a better parent.
Presenting testimony from a child development expert whom the parent consulted before coming out to the children shows that the parent was committed to minimizing the difficulties of disclosure to the children.
The parent may testify about any efforts to work with the other parent during transition in order to support the children's well-being. This type of testimony focuses on the transgender parent's commitment to the children's best interests. The court will look unfavorably upon a parent who discloses to the children without informing the other parent, but it will look favorably upon parents who cooperate in the best interest of the children.
When the other parent's representative cites the parent's gender expression or transition as a reason to deny or restrict visitation or custody, expert testimony may be needed to help prevent the court from relying on baseless assumptions and misunderstandings regarding transgender parents' ability to parent their children.
Social stigma is another common argument in these cases and it is important to explain that while the community may be prejudiced, limiting the child's contact with the transgender parent will not prevent it. This type of evidence is best presented by a child development expert or psychologist. Testimony could also include the fact that children are bullied for many reasons, and that even the court does not have the power to prevent social prejudice. If the children have known about the parent's transition for some time and have good relationships with their peers, it may be possible to refute these speculations.
Unless the court receives evidence that demonstrates that the parent's transition or transgender status has harmed the child, it may not limit the parent's custody rights or visitation. Likewise, the court may not instruct a parent to conceal their gender identity from their children without evidence that it is harmful to the child. Some might argue against a parent disclosing his or her transgender status to the children and ask the parent to present in accordance with their birth gender identity in the children's presence. It could be argued that keeping such a big secret from the children would be detrimental to the relationship between the parent and the children.
Transgender Parental Rights in Jeopardy?
While the courts have to treat a custody dispute with a transgender parent as it would any similar case, many laws apply, which makes it difficult to navigate the process. Case law bear witness to years of unsettled legal rights of transgender parents, but with the right representation you can protect yourself.