Legal Advisor

Transgender Docket

By Carolyn Woodward
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The question posed to me for this month's article is one which I am sure is of great concern to many in the transgendered community.

What are the rights of a father regarding custody and visitation when she is transitioning?

The answer to this question, at the most basic level, is the rights are the same as for any other father. In most states the criteria used to evaluate and establish custody and visitation arrangements is the "best interest" test. That is to say, the court will look to the best interest of the child. In California, the law goes so far as to state that custody and visitation will be in the best interest of the child and that there is to be no preference for one sex over the other.

That's what it says. It is an ideal goal, but is not yet fully realized. Motherhood still prevails to a great extent, but I have seen, over the years, even that priciple is slowly eroding. The ideal expressed in the law, and by the best interest test, is slowly being accepted as the right way to deal with these issues. In California the courts have even gone so far as to rule that a parent is not to be denied either custody or visitation because of sexual orientation.

So, what does this mean to a transsexual father in transition? First, let's take a look at what custody and visitation mean.

There are two categories of custody, legal and physical. The standard in California is that the parties have joint legal custody. This merely means that both have the full rights of parents. Both can get school and medical records, can authorize medical treatment, have a right to have input into important decisions for their child such as school, braces, and the like.

Physical custody refers to the child's primary place of residence, and which parent will end up providing most of the hands-on care. There is joint physical custody where the child spends an equal amount of time with each parent, but I don't see this too often. It tends to confuse younger children and leave them feeling like they have no real home. Usually, one parent or the other will be designated as the primary physical custodian, and the child will spend the majority of the time in that household. There are lots of ways to express this, such as shared physical with one designated as primary, or primary physical custody, or even sole physical custody. It really doesn't matter, because the end result is the same. The child has a primary home with one parent over the other.

The other parent then has time designated when the child will be with him or her, and this is their visitation, or periods of care and control. These periods are very frequently established by work schedules, or other factors affecting the interests of the child. It is also important to remember, in California anyway, that any such orders are guidelines in the event that the parents mutually agree to other arrangements, and orders only if they can't otherwise agree.

OK, that's the basic background. How is your transition going to affect what happens to you? That will depend upon a number of factors, including any biases you may run across which are held by the mediator or judge. The arrangements are arrived at during a process of mediation, conducted by a qualified family counselor, whose goal is to get the parties to agree to an arrangement which is good for the child. If you and the mother agree, there are no problems. If there is no agreemnet, then the mediator will make a recommendation which he or she believes to be in the best interest of the child, and this is subject to confirmation by a judge, so bias is a possibility absent an agreement.

I'm assuming, for the sake of this discussion, that your child has no problem with this transition, or that any problems are being handled in therapy. If the mediator and the court are convinced that the child is not going to be "damaged" by being around you, and there is competent evidence to the contrary, then there are no established legal grounds for denying you any of your rights as a parent. Competent evidence would be a therapist who is assisting the child through the transition. The mediator might decide, if there is no therapist, to interview the child and see if there is any problem.

The job of the mediator and the court is not to judge your lifestyle or your choices, but to assure that your child's best interests are being protected. If they fall short of their duty in the initial stages, then you can elect a formal trial on the issue. This will be expensive because, in addition to your lawyer, you will have to pay the child's therapist to come and testify. It is worth it, but it is still a better idea to be prepared with this evidence at the mediation stage.

Now, what if the child is NOT handling the transition very well? In that case chances are good that you will be held to minimum contact, possibly in male clothing, and the child ordered into therapy. Any increase in time, and exposure of the child to your true self, would be as directed by the therapist. In such a situation the court would probably order a review after several months. If not, you can bring it back to court if the therapist says the child is ready for something more.

In summary, the best interests of your child is the paramount consideration. Generally, that best interest calls for the child to have significant contact with both parents. You, however, are doing something which, although more widely accepted than in previous years, is still looked upon with scorn and suspicion. This means, like it or not, that you will likely have to demonstrate that your child is willing to accept your transition and your true self. In this endeavor, a qualified therapist can be your best friend. There is hope, and a very real chance of a normal relationship with your child - as normal as it can be when divorce is an issue - so long as you face, and deal with, the fact that yours is not a routine situation.


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