Child Custody and Transgender Rights
Most veteran family law attorneys have seen one or two child custody cases over the past few years where transgender rights are at issue. In the post-modern era, however, such cases are on the rise; nearly every metro-area family court docket features several.
Here is a post involving child custody and trangender rights from the Law Blogger posted in November 2018; here is another post from the Law Blogger detailing the travails of a transgender judge from 2015.
The issues of transgender child custody and gender dysphoria are in the nation's living room these days. From the campaign trail, to television ads, to the local courthouse, gender is not what it used to be.
Also, a seminal case addressing transgender issues is now pending before the Supreme Court of the United States. SCOTUS granted certiorari last year in United States v Skrmetti which was argued on December 4th; a decision from the High Court is expected in June.
Our law firm has represented parents on both sides of the transgender equation. We have also been involved in child custody cases where one of the parents is a transgender person. Last year, we reached out to the chambers of a few of the judges in Oakland County to inquire whether transgender child custody was a trend.
Not only did the judicial clerks express an awareness of such cases, they indicated that, in some of their cases, the children involved were as young as 10 years old. These cases tend to pit one parent against the other to the extent that one parent encourages the child to explore their gender dysphoria while the other parent does not.
Here are a few recent anecdotes culled from our law firm's recent professional experience: Shortly after our client spent a weekend with his teenage daughter, he discovered a pill in the carpet of his livingroom. Not knowing what the pill was, this father Googled an image of the pill and discovered it was testosterone. Without his knowledge, the child's mother was taking the daughter to a therapist and a physician for hormone blocking treatment. These parents had already been enbroiled in a high-conflict custody battle; this became the central issue of contention.
In another case from a distant county, we represent a mother that has sole legal custody. Father followed his new wife across the country and now lives out of state.
Mother has been very supportive of their 10-year old daughter's desire to identify as a boy. She let them change their name to a boys name and made arrangements for the child to use the faculty bathrooms at school.
Fast forward two years: father still resides far far away and sees his daughter, who now uses male pronouns and sports a boy's haircut and clothing. This child now desires to proceed with hormone therapy and mother is supportive. Father, on the other hand, is livid and is attempting to regain custody from afar.
In yet another case, our client is a transgender woman [meaning a woman who was male at birth] enduring a nasty custody battle with her former wife. This transgender woman is a model parent of the former couple's 16-year old son in all respects but one: she is transgender. For this purported transgression, all manner of forces have been arrayed against her in the family court custody litigation: psychologists, medical experts, school counselors, friends, parents of friends, just to name but a portion of the supporting cast.
One key fact in the case is that the teenage son actually prefers spending time with his transgender parent; the parent that used to be his father. If it were not for the boy's reasonable preference, there is no doubt that he would have lost custody simply because of the poor optics.
With all of this transgender custody litigation going on, what is a family court judge to do? Soon, there will be some guidance from the SCOTUS. The Skrmetti case arises from the Sixth Circuit Court of Appeals, which issued a divided opinion on whether the State of Tennessee could legally ban puberty blockers and hormone therapy for children.
The case pitted three transgender teenagers and their parents against the State of Tennessee. Interestingly, certiorari was granted only on the Biden Administration's justice department petition based on equal protection grounds. Although they were denied certiorari, a lawyer for the transgrender teenagers was allowed to argue the case on their behalf in December.
Although not all the parents of the transgender teenage petitioners are aligned with one another, Skrmetti is not a custody case. Rather, the case explores whether a state has the constitutional power to ban transgender medication and treatments.
Also of note, the Trump administration's solicitor general signaled in a letter to the clerk of the SCOTUS that the legal positions previously asserted by the Biden administration in this case no longer constitute the position of the United States. Both the Biden and the Trump administrations have departed from the longstanding tradition of maintaining the legal position of the United States in pending cases, despite a change in presidential administrations.
For his part, Trump has often stated his belief that transgender medication for children is tantamount to child abuse. From what we can tell in dealing with a variety of parents, lawyers, and judges struggling with this issue, this view is not outside the mainstream.
Amicus briefings abound on this case, filed by physician groups, transgender rights groups, and many other states. We will track the case and alert our readers to the outcome when the SCOTUS opinion is published. Stay tuned.
If you have a child that exhibits gender dysphoria or if you are dealing with a parent that disagrees with you about your child's assigned gender, give us a call. We offer extensive free consultations to assess your family's options.
This is Clarkston Legal Law Blog post #300.