For a transgender person contemplating parenthood, it is important to be aware of several legal issues that can arise relative to parental rights. For example, you may be considering surrogacy, adoption, or having children biologically, and these are all processes that carry their own unique set of legal implications. Additionally, in cases where parents come out as transgender or transition after having children, an ex-spouse or partner may use that parent’s gender identity as a basis to challenge, restrict, or deny child custody or visitation.
While some parenting challenges have been ameliorated with the Supreme Court’s legalization of same-sex marriages for transgender parents who are married, obstacles may remain for those that are unmarried or in domestic partnerships. Often judges do not have a good understanding of gender identity issues, and they also have a small body of inconsistent case law to draw upon as guidance.
Legal Issues Related to Prospective Parenthood
If you are transgender and wish to become a parent, your options may include conceiving a child with your partner, adoption, surrogacy, or adopting your spouse or partner’s children from a past relationship. Each state follows different laws related to surrogacy and it is crucial to retain an attorney experienced in LGBTQ issues to determine whether surrogacy is permitted in your state and what the particular state rules are with respect to LGBTQ couples. When a transgender parent will not be biologically related to a child, it is especially important for that parent to adopt or obtain a parentage judgment as soon as possible after the child is born.
If you are unmarried, you should also create a parenting agreement that lays out each partner or spouse’s responsibilities and rights related to the children. An agreement with your partner will not make you a legal parent, but many courts have recognized that provisions allowing someone other than a biological parent to have custody or visitation may be enforceable in court. This type of agreement may be useful to show your and your partner’s intentions.
For some same-sex couples in which one of the partners is transgender, it is possible for the couple to conceive and both be biologically related to their child. If these partners are legally married when they conceive the child, they both should be automatically presumed to be the legal parents of the child. This means that in many states, if they get a divorce, they will remain legal parents unless a court terminates one or both of their parental rights.
However, even transgender parents who are biologically related to their children may face complicated parentage challenges when they use assisted reproduction or when they remain unmarried. For example, if you are a transgender woman who has a child with a partner to whom you’re not married by using your own sperm, under some state laws, you may be considered a donor that has no parental rights.
You may be able to obviate potential challenges to your legal rights as a transgender parent by obtaining an adoption or parentage judgment. As a general rule, a final adoption cannot be challenged later by either of the parties to the adoption. However, you should be aware that one state, North Carolina, has invalidated a final adoption.
Parentage judgments are less common than adoptions. However, obtaining a parentage judgment can be a good option for non-biological and non-adoptive parents that are already recognized by their state laws as legal parents because they are married to the other parent.
Even transgender biological parents that are named on their child’s birth certificate should adopt or get a parentage judgment to be on the safe side. All states are required by the Full Faith and Credit Clause of the federal Constitution to recognize court orders, such as adoptions and parentage judgments. This means that if you obtain either of these as an LGBTQ parent, it should be recognized in every state, even if that state’s own laws would not permit you to adopt.
Parental Fitness Challenges
Former spouses or a judge may use a transgender parent’s gender identity or transition as a basis for limiting or even denying custody or visitation, arguing that the parent’s gender identity will adversely affect a child’s well being.
In most states, the court looks at the best interest of the child when making its first determination about custody and visitation during divorce or separation proceedings. Each state varies as to what factors a court can look at when it determines a child’s best interests. Often the factors include the quality of a child’s relationship with each parent, each parent’s willingness to support the child’s relationship with the other parent, the parent’s ability to look after a child’s needs, and the stability of home life with each of the parents. Where a child is considered mature, the child’s own wishes will also be considered.
Generally, courts follow the rule that it is important for a child to continue to have guidance from both parents following a divorce. This means that visitation is granted liberally unless a parent is considered a threat to the child’s emotional or physical wellbeing. Even in those cases, the court usually orders supervised visitation rather than severing a parent–child relationship.
If a parent wants to modify an existing custody order, the parent has to show there is a significant change in circumstances since a prior order and that the proposed modification is in the child’s best interests.
Most courts have no state case law to draw upon when determining whether a parent’s transition or gender identity has any bearing upon a child’s best interest. However, case law where it does exist varies. For example, a Colorado appellate court reversed a lower court’s decision to transfer a child away from a transgender parent based on a transition on the grounds that there was no evidence that the transgender parent’s home was an environment that endangered the child’s emotional or physical development. However, in Nevada and Kentucky, courts have completely terminated a parent’s relationship with a child on the basis of their gender identity.
The unpredictability and importance of child custody proceedings means that it is crucial to retain an experienced family lawyer to represent your interests in court. In many cases where the results were favorable to a transgender parent, the transgender parent’s legal team presented testimony from expert witnesses like psychologists and psychiatrists. This allowed the court to have more information than they would have had if they relied on the other parent’s experts about the child’s best interests.
If you’re transitioning, it can help to plan the transition with the guidance of a doctor or therapist. That person can also offer testimony on your behalf. Similarly, it can help to consult a child development expert, such as a child psychologist, about how to make any necessary adjustments as smooth and easy for your children as possible. Cooperation between parents is also helpful in making sure your child’s adjustment is easy, and this may also influence a court when it looks at the child’s best interests.
Legal Parental Status
After the death of a spouse or other serious events, transgender parents may face challenges to their legal status as parents from their spouse’s relatives, particularly if they are not biologically related to the child and their status as parents was based on a marriage.
In most cases, there is a presumption that the child of two parents is their child if they are married. This presumption may be especially vulnerable to challenge in the context of same-sex marriage in states that did not recognize same-sex marriage prior to the legalization of same-sex marriage. In many states the law is not well settled with regard to when that presumption applies, particularly when it comes to transgender parents. A transgender parent who is not married to their spouse may face greater challenges than one who has children while married to a spouse, because there are some states that only allow adoption or a parentage judgment where a couple is married.
However, a transgender parent can either adopt their spouse’s children or obtain a parentage judgment in order to make their legal status clearer. Either of these will provide protection if you travel to another state with variations in case law. A judgment of parentage is a court order, which often takes less time to get than an adoption. However, adoption is a method that is better understood.
You should consult with a family law attorney who is experienced in LGBTQ issues when faced with big decisions about your family so that you can comply with any legal requirements governing issues including assisted reproduction, adoption, and parentage judgments.