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Family Law

Custody of transgender kids: the challenges

By April 17, 2018October 26th, 2021No Comments

An interesting article in AZ Central takes a look at why US parents are losing custody of transgender kids and discusses some of the specific challenges of mediating custody disputes when parents disagree over how to handle gender non-conforming children.

Cases involving children identifying as transgender or who identify themselves using other non-traditional gender terms are being seen more often in the US family court system, as parents clash over how to support children exploring gender identities.  Outcomes in matters involving trans kids or those with gender dysphoria are particularly sensitive given the increased risk of anxiety, depression and suicide that gender non-conforming children already have.

But LGBT legal experts say the court system there is not yet equipped to handle cases involving custody of transgender kids.  They say the lack of education in the court system means that practitioners “fall back on stereotypical notions” of the idea that a parent can “push” their child to become trans.

A US associate professor of family science, Katherine Kuvalanka, is pioneering research on these types of cases. “What seems to happen is that the supportive or affirming parent is accused of pushing the child toward a transgender identity,” said Ms Kuvalanka. However, she said psychologists and researchers have found children’s concept of gender develops between the ages of 3 and 6. The American Psychiatric Association says “cross-gender behaviours” often start between ages 2 and 4.

Women’s support groups in the US say it is frequently mothers being blamed for “forcing a child to be transgender, often by an ex-partner who was controlling or abusive during the couple’s relationship and could out-resource the mother financially” through the court system.

“This idea that a mom can make someone trans is a strategy that seems to be very convincing to family-court professionals, even though it completely disregards the child’s agency,” [US activist] Bellis said. “I haven’t met a single parent who said, ‘Yes, I’m going to force my child to do this.’ These moms are like, ‘I can’t even get my kid to clean their room.'”

The lack of education about how gender identity is developed is regarded as impacting on outcomes in custody battles, in part thanks to the way that the subjective “best interests of the child” standard works (both here and in the US):

If a judge views the possibility of becoming an LGBT adult as a negative outcome; feels that an “undesirable” gender identity is a reversible condition; and isn’t aware of the emotional and physical risks associated with pushing a child to conform to gender norms, that judge will find placing the child with a “non-supportive” parent to be in the child’s best interest. Indeed, a 2013 analysis found that “in the absence of appropriate experts and information, courts favor the parent who rejects the child’s non-conforming gender identity.” 

The article describes the case of a custody battle that arose after a mother started to let her then-six year old boy wear a skirt to school. The father argued that the mother “through various acts, was pushing a female gender identification” on the child. He proceeded to seek sole legal and physical custody of the child.  The judge “responded with sweeping injunctions forbidding the mother to discuss gender-related issues at home; dress L. in female clothing; let the child have any “female-oriented” toys; or refer to L. as “her,” “she” or a “girl.”” Until the case was reviewed two years later, the “temporary” injunctions stayed in place. On Appeal, the orders were lifted, with the Appeals Court judges “calling the limitations a ‘severe micromanagement of Mother and Father’s parenting”.

The lack of experience with gender issues among family-court professionals in the US means the struggle for parents litigating custody of transgender kids in the family court environment is similar to that of gay and lesbian parents in the 1970s and 80s, when ex-partners “used stereotypes about homosexuality to win custody”.

Judges may also fall back on their own views and make their own diagnoses rather than accept the advice of medical experts. In one case, even with both parents acknowledging the child wanted to live as a girl and stay living with the mother, and the child making corroborating statements, the judge rejected the child’s statements “because he believed the child’s gestures were not feminine, because the child did not mention being attracted to boys, and because the child (enjoyed) a number of stereotypical male activities…He “found that the mother was the actual cause of the child’s desire to live as a girl” and awarded custody to the father.”

While it’s clear there’s a pressing need for family court practitioners to be educated on child development and gender-identity issues in relation to custody of transgender kids, some change is already being seen in US courts:

“There have been cases where (an ex-partner) started to say a parent was pushing the child to be transgender, and immediately the judge would step in and be like, ‘Wait a second, this sounds like you’re just trying to malign this other parent,'” Kuvalanka said. “So, we’ve certainly heard of good outcomes as well, and that’s great.”

Although the issues raised above refer to the US experience of custody of transgender kids, the current reform of the Australian family court system is expected to also take these kinds of issues into consideration in the quest to modernise the system.

Source: AZ Central

Do you need assistance with a parenting or other family law matter? Please contact Canberra family lawyer Cristina Huesch or one of our other experienced solicitors here at Alliance Legal Services on (02) 6223 2400.

Please note our blogs are not legal advice. For information on how to obtain the correct legal advice, please contact Alliance Legal Services.

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