Transgender Rights: What Happens to Custody When Mommy Becomes Daddy?

A new joint publication between the American Civil Liberties Union (ACLU) and the National Center for Transgender Equality (NCTE) provides information to transgender parents whose spouses may use information about their transition against them in order for cases of child custody to be handled fairly. "Protecting the Rights of Transgender Parents and their Children: A Guide for Parents and Lawyers" compiles a number of situations a transgender parent may face when attempting to gain custody of their children, and includes case law and sample testimonies so the person may fight for fair and honest treatment even when their ex-spouse tries to demonize them for their gender identity.

Since custody agreements try to satisfy the "best interest of the child," the transgender parent is often placed in a bad light because of their transition. Some courts have seen through transphobia: the 1973 case Christian v. Randall found that "the record contain[ed] no evidence that the environment of the [transgender parent's] home ... endangered the children's physical health or impaired their emotional development." In all actuality, it should be as simple as this. Regardless of the transgender parent's initial gender identification, the fact that they went from being "Mommy" to "Daddy" should be irrelevant to their parenting ability. However, cases like Cisek v. Cisek (1982) ruled in favor of the cisgender parent (one whose gender identity and genitals "match," like a person identifying as a woman who has a vagina) because the "impact of [the parent's planned] gender reassignment surgery on the children is unknown." This should be a no-brainer: the child was not in contact with the parent's genitals before, and what is inside their parent's underwear will not influence their parenting skills one way or another. But this case and others like it have terminated parenting rights of the transgender parent simply because they were transgender.

The publication goes on to advise transgender parents about how to come out to their children, potentially involving the other parent if possible. A therapist may be contacted so the child can come to terms with the parent's transition as easily as possible. Lambda Legal, a civil rights legal organization that represents LGBT people, says that children are much less likely to react negatively to a parent's transition than adults are because they have fewer preconceived notions about what gender identification is. The ACLU/NCTE publication suggests having those who have worked closely with the child during the coming out process testify at the custody hearing, as they will be able to give the most accurate testimony of the child's well-being. If the child is old enough, they can also meet with the judge in private and discuss their feelings about the situation. The transgender parent's treating physician may also testify to the fact that the parent is undergoing the transition between genders. Additionally, it is very important that if any suspicion of mistreatment due to the parent being transgendered arises, they may call in an expert on the subject to deliver a "Transgender 101" testimony discussing the idea of gender identity and why one may want to transition.

Several laws are highlighted, including the court's inability to restrict the transgender parent's custody when it lacks evidence that the parent would be harmful, that keeping the child from the transgender parent due to social prejudice against transgender people is unlawful, and that the court cannot require a parent to conceal their gender identity unless it is shown that it would harm the child for them to know. These all work in the best interests of the child for one universal reason: Without proof or testimony of harm, neither the child nor the parent would benefit from being separated from one another. If evidence of potential harm does exist, then the court can take appropriate steps toward treating the transgender parent as one harboring an unsafe environment, not necessarily because of their gender identity or transition process.

The issues that transgender parents face simply for being transgender transcend the court system. Even when custody is not an issue, the transgender person's partner or ex-partner may become overwhelmed with prejudices and personal issues faced by the person who is coming to terms with their gender identity or transition. This publication is an excellent resource for not only those who are transgender parents, but for those looking to learn more about what it means to be transgender or how to treat transgender people (hint: the same as anyone else, with certain cautions). The ACLU and NCTE have done a great service to both those for whom LGBT equality is a staple of their careers and for transgender people in need of advice from competent sources.

*Editor's note: Due to concerns voiced in comments regarding the original file photo for this article, it has been replaced.