Legal Advisor

Transgender Docket

By Carolyn Woodward
Got a legal question? Having some problems with the law? TG Attorney Carolyn Woodward will try and answer your questions. Contact her by messaging publisher Cindy Martin and we'll make sure she gets your question.



Last month I talked about the thorny issue of child custody and visitation from the perspective of a transitioning TS. I'm going to continue along this line and address the issue as it might apply to those of us who still continue to live as males for whatever percentage of the time may apply.

First, a quick review. (If you missed last month's article, read it for a full explanation of this paragraph.) Custody refers to legal and physical custody both. Legal custody preserves the basic rights of parenthood -- access to school records, medical authorizations, and input into important decisions in the child's life. Physical custody refers to the household where the child will spend the majority of his/her time -- the home base. Visitation refers to the time spent with the child by the parent who does not have primary or sole physical custody. This is usually the father -- still, but the trend toward gender equality is slowly growing. Finally, keep in mind that the main function of the court, be it the mediator or the judge, is to make an order in the best interests of the child.

OK, a little more review. The usual process of establishing custody and visitation is through mediation -- meeting with a counselor hired by the court whose job is to get the parents to agree on a parenting plan which is good for the child. If the parents don't agree, the mediator makes recommendations. The agreement or recommendation then becomes a court order. If in agreement, then you are done unless there is a change in circumstances warranting a modification -- like Charles Manson gets paroled and moves in with your ex-wife, or one of you has to move from the area to take a new job. If the mediator makes a recommendation, then it can be challenged in court where the judge is also bound to look after the best interest of the child, which is usually ample time with both parents.

Now, let's look at exceptions to "usually." If this article concerns you, then you are a potential exception to the usual custody and visitation standard. While perhaps there is progress being made toward acceptance of the transgendered, most mediators and judges are uncomfortable with the concept of children spending time with a father who wears women's clothes. So, what are the options? It depends on your circumstances, really. Here are several scenarios.

Scenario #1: She Doesn't Know

Now is not the time to come out to your soon-to-be-ex-wife. As far as she knows, there is nothing wrong, and no reason for her to try and convince the court that you are some kind of pervert. It will not become a matter of public record, either. Needless to say, this is also not the time to tell your children. There may be a time for that, but during or shortly after divorce proceedings is NOT the time. If you contemplate revealing your full nature to your kids in a divorce situation, make sure you have been single parenting long enough to establish yourself as responsible. Even then, depending on your ex, you might want to tell her first, and coordinate telling the kids with her -- perhaps with the intervention of a therapist.

Scenario #2: She Knows, But Doesn't Like It

Perhaps your cross-dressing is the cause of the divorce. Here the situation is a bit stickier. If you are lucky, you can reach a quiet agreement that you won't cross-dress in front of the kids, and that it won't be mentioned in court. If that doesn't work, then be prepared to explain your situation to the mediator, promise the mediator that you won't do it in front of the kids, and ask that it not be made a formal order in order to preserve your privacy in this matter. The mediator may not have a problem with it under these circumstances, and will convince your ex that this is appropriate. If it doesn't work out, then you may get stuck with an order that you not cross-dress in front of your kids. You may have noticed that I'm a bit pessimistic in tone here. What about trying to get the OK to cross-dress in front of the kids. Well, if they already know, and are used to it -- maybe. But if they don't know, and you are getting divorced over the issue, then count on your soon-to-be-ex to paint a picture of you as a dangerous pervert. Helpful hint here. It is my experience that mothers who are threatened with what they perceive to be a danger to their children will lie to mediators and judges. If she already thinks you are a pervert, she may lie to use your kids to punish you. Start slowly, and agree not to tell the kids. There is time and opportunity for that later. (Many men will also lie to get what they want, whatever the motivation. I'm not picking on mothers here, it's just that I'm addressing the fathers. So, all of you mothers who may be reading this and who would never lie in court - God bless you, and don't feel slighted, please.)

Scenario #3: She Knows, And It's OK

Oh, lucky you... sort of. You're still getting divorced, but there is an excellent chance of cross-dressing not being an issue. In this situation, it is important not to turn it into an issue. Do the kids know and approve, or disapprove? You have to be sensitive to them, and let your wife know that you will be sensitive to them. Do they not know? Again, now is not the time to decide to tell them - that could make it an issue. There is plenty of time to work it out later.

What's the bottom line here? No matter what your situation, you must remember that your children come first. When you get divorced, there is a great temptation to go wild and throw caution to the winds (sorry about the cliche', but it works). Unless you absolutely, positively know it won't be a problem, then restrain yourself. Don't ever forget that we are generally not accepted as being normal and when dealing with a delicate issue such as children being perceived as abnormal, even though we know better, can be dangerous to your rights as a parent.


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