Justice is suppose to be blind ...
It might also just be wearing blinders
Justice is suppose to be blind ...
It might also just be wearing blinders
To date, I am unaware of any federal, state or local legal protections explicitly protecting Transgender Parents. Also, attempting to find legal precedents and case law turns up as many bad as good custody awards. There are cases where, for no other reason, the judge awarded custody to the non-Transgender Parent because the parent was transgendered. Transgender Parents have been denied complete contact with their children, been required to have supervised visitation or even been required to either present totally as male or dress androgynously in front of the children.
Here are a few articles for reference (for more, see our Custody References page):
As you will read, much depends on who you work with, at all points in this process. What are their bias'? Have they any experience working with transgender clients? Have they any experience working with gay, lesbian or bisexual clients? What county, city will you be filing? All factors that really should not matter, but do.
Even as cities such as Portland, and counties like Benton-Linn and Multnomah add anti-discrimination protections for gender identity, there is no language that includes parenting. And, unfortunately, if it isn't explicitly stated, it is also very difficult to defend or apply the protection to. Even if parenting were included, you are dealing with experts and, possibly, an ex-partner who is angry and hurt. They will be advised to find things about you that could be seen as potentially detrimental to the welfare of your child.
Most states have guidelines for determining custody. The foundation for those guidelines is what is in the best interest of the children. For example, the state of Oregon's guidelines are:
Joint custody, joint responsibility for the child, and extensive contact between the child and both parents is encouraged. Joint or sole custody is determined based on the best interests of the child and the following factors:
The conduct, income, social environment, and life style of the proposed guardian is to be considered only if it is shown to cause emotional or physical damage to the child. No preference is to be given because of parent's sex. The court will not order joint custody1 unless both parents agree to the terms of the custody. [Oregon Revised Statutes; Sections 107.105, 107.137, 107.169].
1 Here, joint custody refers to joint legal custody, which is the equal power of decision making regarding your children's education, medical and emergency decisions.
Overall, the above presents a good guideline, until the last sentence. This presents a contradiction, for as long as one parent does not agree to joint custody, the judge cannot order, even if that is truly in the best interest of the child/children.
Spend the time to find a good lawyer who is affirming of transgender persons, is willing to learn and willing to fight for you. Find out about your area's custody guidelines and property distribution. Be truthful to your lawyer, do not let them be surprised by the other side.
Your case may involve participating in a custody evaluation. A custody evaluation involves contracting with a third person, typically a psychologist, to interview the parents, the children depending on their age, references that can speak to the parents relationship with the children, evaluating both home environments and observing the interaction between parent and children.
You may not have a choice in who the evaluator is, this may be negotiated between your lawyer and your partner's/ex-partner's. If you have a choice, try to find out as much information about the possible evaluators (though this can be difficult). You might contact your state Board and find out if any complaints have been filed. Ask your lawyer if they know of the evaluator, their reputation. Be careful of choosing an evaluator based too much on their reputation, without knowing how they typically have made custody recommendations.
If you can, find out if the evaluation is to be a mental health evaluation or a forensic evaluation. A mental health evaluation will focus on results of personality tests and is very subjective to the beliefs and philosophies of the evaluators. A forensic evaluation in nature, is data driven and there are built-in "checks and balances", which helps to prevent the individual evaluator's bias' and subjectivity. (See the Child Access Center's web site for an overview of a forensic evaluation.)
If you choose or are required to participate in an evaluation please note that if you disagree with the report, getting a second opinion may be extremely difficult. Your custody determination fight may become more difficult based on the evaluator's recommendation.
The following articles or sites on custody evaluation and forensic psychology ethics may help prepare you for the evaluation.
If you are involved in an evaluation, try to be proactive in giving information about your parenting and involvement with your children. Beforehand, create of list of references that can support your statements. If you are asked to take a personality inventory (MMPI) or other evaluative test, ask if your partner/ex-partner will be taking one as well. Take notes, as well, to ensure any statements presented in the report are accurate and/or correct. The report becomes evidence presented by an expert witness.