Family Court

Child Protective Services

Many affirming parents of transgender and gender-diverse children fear that someone–in their community or even their own family–will call child protective services (CPS) and claim that the parents’ affirmation is akin to child abuse. This fear is justified, given testimonials by affirming parents that these types of reports are made all too often.

Resources:

Custody and Visitation

Parents and other family members aiming to affirm the gender identities and expressions of transgender and gender-nonconforming (TGNC) children can sometimes face difficulties in family court pertaining to issues of custody and visitation.

Two parents may disagree about how to approach a child’s transgender identity and gender-nonconformity – and such disagreement can lead to or contribute to child custody disputes, where trial courts have broad discretion in determining a child’s “best interest” and in making legal and physical custody decisions(1). Due to lack of knowledge about transgender identities and gender nonconformity in childhood, some parents have been accused of “pushing” their TGNC children toward a transgender identity and have subsequently lost partial or full parenting rights.

In three cases [Shrader v. Spain (Tex. App. Feb. 4, 1998); Smith v. Smith (Ohio Ct. App. Mar. 23, 2007); Williams v. Frymire (Ky. Ct. App. 2012)] involving TGNC children, the court sided with the non-affirming parents, and, thus, the affirming parents either lost custody or had their parenting time or legal decision-making authority reduced(2, 4). In Smith v. Smith, the judge lacked knowledge of childhood gender nonconformity, relied upon heteronormative and cisnormative notions of gender, discounted expert testimony and the wishes of the child, and concluded that the mother had pushed the child toward a transgender identity(2, 3). In another case [Johnson v. Johnson (Superior Ct. of Calif. Cnty. Of Alameda, Oct. 10, 2009)] where: (a) the judge was less concerned with traditional gender roles, prioritized the child’s wishes and statements of identity, and relied upon traditional “best interests of the child” factors, and (b) the affirming mother sought a therapist’s advice early and asked the court to approve a phased plan for the child to explore gender identity and expression, the court decided upon shared custody(3).

The Trans*Kids Research Team got involved in examining these issues in early 2014, when the mother of transgender child sent the following email:

“I am the mother of a 7-year-old transgender child, assigned female at birth but identifies as a boy. . . .I am currently in a custody battle with my child’s father based solely on the fact that I support my child’s gender identity. . . .I would like to . . . connect with researchers who would be interested in working with mothers like me who are fighting for custody of their transgender children.”

After receiving an Innovation Grant from the National Council on Family Relations in 2015, the Trans*Kids team embarked on a study to explore family members’ experiences related to custody and visitation challenges. Our broad research questions were:

  • What are the experiences of parents/caregivers who are affirming of their TGNC children’s gender identities and expressions and who face custody or visitation-related challenges related to their children’s trans identities/gender nonconformity?
  • What is important for us to know about these parents’/caregivers’ experiences so that we can better support them?
  • What impact do these custody and visitation-related challenges have on TGNC children?

In 2015, we interviewed five primary caregivers (mothers and grandmothers) of transgender and gender-nonconforming children for our pilot study. Download our PDF handout to see what we found* (if you have trouble downloading or viewing the attached document, please email Kate Kuvalanka at kuvalanka@MiamiOH.edu):

In 2016, we interviewed 10 mothers who had or were experiencing custody-related challenges involving their transgender and gender-nonconforming children. Some had relatively positive experiences that involved knowledgeable and competent family law attorneys, family court judges, and mental health experts. Others, however, were “blamed” by their ex-partners/spouses as the “cause” of their children’s gender nonconformity, had difficulty finding or affording knowledgeable and competent attorneys, were at the mercy of family court judges who lacked knowledge about childhood gender nonconformity, were out-resourced by their ex-partners/spouses, and, ultimately, lost partial or full custodial rights. Others had not gone to court but had their parental rights threatened by non-affirming ex-partners/spouses or other family members, or were considering taking an ex-partner/spouse to court due to the other parent’s rejection of the child’s gender identity or expression but were concerned that they might lose custody in the process.

Findings from our study, published in 2019 in Family Court Review, indicate a critical need for the following:

  • Education of family court professionals (judges, attorneys, custody evaluators, guardians ad litem, court appointed therapists, etc.) in regard to gender nonconformity in childhood
  • Expert legal advice for parents, including how to protect oneself and one’s child when custody might be threatened, what language to include in parenting agreements to help protect against future challenges, how to find knowledgeable attorneys, etc.
  • Resources for parents, including pro-bono or reduced-fee legal services

Check out our article! Here’s the title and abstract…

“An Exploratory Study of Custody Challenges Experienced by Affirming Mothers of Transgender and Gender-Nonconforming Children.” (2019). Family Court Review. Authors: Katherine A. Kuvalanka, Camellia Bellis, Abbie E. Goldberg, & Jenifer K. McGuire.

Abstract: Despite family acceptance being critical to transgender and gender-nonconforming (TGNC) children’s well-being, parents do not always agree on how to approach a child’s gender nonconformity. Such disagreement can contribute to child custody disputes. Historically, family courts have lacked familiarity with evidence-based recommendations regarding the best interests of TGNC children, resulting in some affirming parents losing physical and/or legal custody. This exploratory, qualitative study with 10 affirming mothers of TGNC children who had experienced custody-related challenges reported on salient themes across participants’ experiences, including “blame” for causing children’s gender nonconformity; coercion by ex-partners; transphobic/cisnormative bias in the courts; negative impact on children’s well-being; the emotional and financial toll on participants; and the critical importance of adequate resources. Seven of the 10 mothers went to court and had judges decide upon their custody cases. Four (57%) of the seven decisions ended in the mothers losing physical and/or legal custody of their children. Relevant family case law and social science literature are reviewed and implications of findings—namely, the need for better educated family court professionals, as well as socioemotional support and financial and legal assistance for affirming parents of TGNC children—are discussed. Study limitations due to small sample size are acknowledged, laying the framework for future research.

Resources:

  • Mothers in Transition: Organization dedicated to supporting and advocating for mothers (or any caregiver) who shares custody and parenting time of a transgender/gender nonconforming child with a rejecting ex-partner. Contact: Cammy Bellis, Founder: mothersintransition2013@gmail.com
  • Transgender Children’s Legal Defense Fund: The organization’s mission: “To serve, through advocacy, education, and financial support, affirming parents of transgender, gender fluid, and gender questioning minors who need assistance navigating the court system on behalf of their children in the face of opposition from a non-affirming parent.” DONATE NOW to support their efforts to:
    • Provide financial resources for legal expenses of affirming parents involved in litigation to support their transgender children in the face of opposition from a non-affirming parent.
    • Educate judges, magistrates, guardians ad litem, and attorneys on research-driven best practices for supporting transgender children to improve legal outcomes for them.
    • Build and maintain a library of state-specific and national resources for parents of transgender children, both of general interest and for parents involved in litigation to support their transgender children in the face of opposition from a non-affirming parent.
    • Support affirming parents of transgender children in navigating the legal system.
    • Coordinate advocacy efforts on issues affecting transgender youth with other organizations.
  • Gender Spectrum. (2017). Legal: Legal professionals and practitioners.
  • GLAD Legal Advocates & Defenders. (2017). Transgender family law: Letting a child be who she is.
  • Minter, S. P., & Wald, D. H. (2012). Custody disputes involving transgender children. In J. L. Levi, & E. E. Monnin-Browder (Eds.), Transgender family law: A guide to effective advocacy, (pp. 131-145). Bloomington, IN: AuthorHouse.
  • National Center for Lesbian Rights. (2015). Transgender family law in the U.S.: A fact sheet for transgender spouses, partners, parents, and youth.
  • National Center for Lesbian Rights. (2017). Transgender Youth Project: Family.
  • Transgender Law Center. (2017). Our legal and policy work: Family law.
  • Transgender Law Center. (2012). Transgender family law 101: A resource guide for transgender spouses, partners, parents, and youth.

REFERENCES:

  1. Minter, S. P., & Wald, D. H. (2012). Custody disputes involving transgender children. In J. L. Levi, & E. E. Monnin-Browder (Eds.), Transgender family law: A guide to effective advocacy, (pp. 131-145). Bloomington, IN: AuthorHouse.
  2. Perkiss, D. A. (2014). Boy or girl: Who gets to decide? Gender-nonconforming children in child custody cases. Hastings Women’s Law Journal, 25, 57-80.
  3. Skougard, E. (2011). The best interests of transgender children. Utah Law Review, 3, 1161-1201.
  4. Margolis, J. B. (2016). Two divorced parents, one transgender child, many voices. Whittier Journal of Child and Family Advocacy, 15, 125-164.