Legal Advisor

Transgender Docket:
Missouri Custody Case

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.



I, like most of the readers of the TG Forum, saw the article last week entitled "TRANSSEXUAL DIVORCED DAD DENIED CUSTODY." After reading the article I decided to scrap my column for this week and comment on the article.

(Thanks to Cindy, by the way, for not shooting me.) The reason for this is that the article seemed very consistent with my experience regarding newspaper reports of legal matters - the reporter goes for the sensational and misses the real point entirely. (It's happened to me more than once.) After reading the court's opinion I found I was right, the real point was missed. The major issue was over the proper interpretation of Missouri statutes. In actuality, the ruling is not nearly as dismal as it sounds from the newspaper rendition. Let me elaborate.

At the trial on the issue of visitation the father (then post-op) and mother both presented experts to testify regarding contact with the children. Father's experts did not interview the children, but were very well experienced in gender issues. Mother's experts did interview the children, but had no experience with gender issues. All felt that the children should be reunited with their father, but that to do so immediately and without proper counseling and preparation could be detrimental to the children. This was pertaining to face-to-face contact, not telephone contact or letters, which the experts felt would be immediately appropriate. When asked how long such a counseling process would take, father's expert opined that a year would be appropriate. Mother's expert felt the children had to be twelve years old before having face to face contact.

The trial judge gave greater credence to father's experts, who were versed in gender issues, and ordered that there would be counseling on at least a monthly basis, physical visitation would commence after one year, and that phone and letter contact would commence immediately.

Mother appealed on several grounds, one of the primary grounds being that visitation should not be commenced without a further hearing on the issue. Here is the crux of the action. (Mother also challenged joint legal custody being granted, but that really did not impact the issue of physical visitation - they are different issues - so please permit me to ignore it here.) Missouri law frovides that a parent not given custody shall have visitation unless the court finds that visitation would impair the childs health or emotional development. A change to the order, granting visitation, requires a showing of rehabilitation and treatment, or a hearing by the court. The majority opinion of the court ruled that such a finding of harm was implied by the delaying of visitation for a year. The minority opinion held that the requirement of an additional hearing, or showing of rehabilitation and treatment, was not required, as this was an original order which did not deny visitation, but delayed its commencement in accordance with the recommendations of father's own experts.

There, in a nutshell, is the significance of the opinion. The court did NOT say Sharon (father) could not have visitation, but only that state law required further proceedings to ensure that the children were ready for the visitation, and would not be harmed thereby.

While this case dealt with the proper interpretation of Missouri law, it provides an opportunity to reiterate a point I've made before in this column. Every divorce court in the country, including this Missouri appellate court, is going to decide the issue of physical visitation, or even physical custody, in accordance with one standard. Every court will consider whether visitation will be in the best interests of the children. Generally, that means the children need to see both parents, even though one may be transgendered. However, because being transgendered is still unacceptable to society at large, the courts will want additional reassurance. That will usually come in the form of experienced, qualified psychologists or psychiatrists who can instruct the court, determine whether the children are ready, and help them make the adjustment.

Will Sharon get to see her children? The court, despite the headlines, said she could, as long as the trial court found the children were adequately prepared. Sharon's quest for her children did not end in defeat but, rather, success has only been delayed for a bit.


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