Transgender Children and Best Interest of the Child

Family law practitioners are seeing an increased amount of cases involving transgender and gender Child and mother fightingnon-conforming (TGNC) children in non-intact families. These cases may involve the non-affirming parent requesting that the TGNC child reside primarily with the non-affirming parent to “fix” the child. Conversely, the case may involve the affirming parent requesting that the TGNC child live primarily with affirming parent because the child has expressed that preference and is suffering from stress with the non-affirming parent. The cases may also involve whether a TGNC child should be permitted a name change over the objection of one parent, or whether it is permissible to allow a child to identify as a different gender over the objection of a parent.

Recently, an article in the Family Court Review, an interdisciplinary journal from The Association of Family and Conciliatory Courts, discussed trends and recommendations for non-intact families with TGNC children. Of note, the article related that TGNC children have a higher risk of depression and suicidal ideations. To combat this, research has shown that the factor that is “critically important to the well-being of TGNC children” is family acceptance, because family acceptance “serves as a buffer against the stigma…and the rejection” that TGNC children may face. Katherine A. Kuvalanka, Camellia Bellis, Abbie E. Goldberg, Jennifer K. McGuire. An Exploratory Study of Custody Challenges Experienced by Affirming Mothers of Transgender and Gender-NonConforming Children. Family Court Review: An Interdisciplinary Journal (2019).

A parent may want to argue that a TGNC child is gender non-conforming because of the other parent’s parenting style, and request that the court grant him or her primary custody of the child to “fix” the child. However, experts have found that parenting style has little to no impact on the gender identity of children. Id.

With this research in mind, the “best interest of the child” factors may be particularly important to examine in cases involving non-intact families and TGNC children. The “best interests of the child” statute, C.R.S 14-10-124, lists factors that the courts and attorneys should consider in resolving disputes regarding parenting time-related issues.

One factor the court considers in determining parenting time is the “mental health…of all individuals involved.” Although attorneys commonly focus on mental health issues for the parents as it pertains to parenting time, the child’s mental health should also be considered. For TGNC children, this factor is especially important, given the increased rate of depression and suicidal ideations for TGNC kids. Ideally, both parents accept their TGNC child, and in this situation, then perhaps an equal parenting schedule could be in the child’s best interest. However, in nonintact families where the parents are in conflict over the TGNC child’s gender identification, the research at this juncture seems to indicate that it may be in the TGNC child’s best interest, at least in terms of the child’s mental health, to have more parenting time with the parent that accepts the TGNC child. 1

In addition to developing a parenting plan that promotes family acceptance, given the higher rate of depression and suicidal ideations for TGNC children, attorneys and the courts should also consider orders that provide for clinical services for the TGNC child and even the parents.

This article is a merely a brief overview with some commentary on an extremely complex issue. Parents of TGNC children, and their advocates, should also enlist the advice of medical and clinical professionals to ensure the right parenting schedule and decisions are made for their child by the parties and the courts. arbitrator after the award is final should also be included.

1. There may be some obvious limitations to the conclusion that a TGNC child should always remain with the parent that affirms their gender non-conformity. For instance, if the affirming parent struggles with drug abuse that impacts the TGNC child’s safety, this could be a reason not to grant primary parenting time for the affirming parent and the TGNC child

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