No divorce process looks exactly like another. But transgender people may feel a particular concern about not being treated fairly in divorce as a result of their gender identity, especially as a parent.

Does your transition during marriage change your legal rights as a spouse or parent?  Can your transition or gender identity prevent you from having custody of your children?  

Let’s start with some basics. All states are prohibited from restricting marriage according to gender, thanks to Obergefell v. Hodges, the 2015 case in which U.S. Supreme Court ruled that same-sex couples have the fundamental right to marry. 

If a spouse transitions after a hetero marriage, the marriage will still be valid after the transition, so long as the marriage was valid at the outset. To complete the transition legally in North Carolina, the transgender spouse must change genders on their birth certificate.

Assuming those fundamentals are in place, can transgender parents get custody of their children following divorce? The answer is that it depends.

You may face challenges to your legal status as a parent because you are transgender. Your ex may raise arguments and evidence concerning your transition or transgender status in court in an effort to minimize parenting time with your children. 

That said, the uncertainty about whether a transgender parent will get custody of their children doesn’t necessarily have anything to do with gender variation. 

What The Court Considers in Awarding Custody

The right to have custody of a child typically depends two things: legal status and being a fit and proper person. 

Legal parents: To establish your legal status, the Court will ask if you are the biological parent of the children or have legally adopted them.  When the answer is “yes,” you are considered a legal parent. 

A legal parent has a constitutional right to parent their children. If both parents are legal parents, the inquiry turns to the parents’ fitness and the children’s best interests.

A legal parent may be considered unfit if there’s a history of child abuse, substance abuse, domestic violence, or psychiatric concerns. In these situations, the legal parent can lose the benefits of being the legal parent in the Court’s view.

“Non-legal” parents:  If you did not give birth to your children or legally adopt them, your parental rights may have to be established more circuitously. In North Carolina, the Court can focus on whether a parent-child relationship exists between the non-legal parent and the children.

What’s more, if the sole legal parent is unfit or has neglected the children, then the non-legal parent may be awarded custody.

Demonstrating Your Right To Raise Your Children

If you’re about to be involved in a child custody dispute, begin by focusing on these steps:

– Determine whether you have or can get a legal status as a parent. Can you adopt or assert parentage even if you are not a biological or adopted parent?

– Ensure that you don’t do anything to jeopardize your legal status as a parent.

– Pay attention to your role if you are a non-legal parent. Act as though you are a legal parent.  Show the ways in which your ex has permitted, fostered, and nurtured a parent-child relationship between you and the children.

Your fitness to parent may be called into question because you are transgender. Will the Court be persuaded that the existence and involvement of a transgender parent causes harm to the children?

Some version of “fit and proper” standards apply in most states, and they apply in all custody cases. It’s not an inquiry just focused on transgender parents. Remember that. Present evidence to demonstrate to the Court what life looks like for the children on a day-to-day basis in your care.  Show how you meet the educational, emotional, and medical needs of the children.

The Court will also consider whether the transgender parent’s home environment creates danger or harm for the children. The conversation can be about psychological implications on the children, too.

Be Prepared

It’s important to be ready for your Court dates. Have credible, competent witnesses testify on your behalf about your fitness as a parent and the importance of a child having access to both parents

Don’t be surprised if you have to talk about the basics of being transgender because sometimes unknown things can seem unnecessarily mysterious. Debunk the mystique.

Jurisdictions are continuing to evolve in their level of acknowledgment of transgender parents as equals to cisgender parents.  Case law is sparse, especially in North Carolina. Focus on presenting a strong case with evidence about the value of your presence in your children’s lives.  

Knowing your rights is critical in all custody cases.  Do your research.  Consult with a lawyer.  Be prepared.

Lauren V. Lewis is a family law attorney with Essex Richards, P.A. in Charlotte. Her work involves issues of child custody, child support, alimony, equitable distribution, separation agreements, premarital agreements, postnuptial agreements, and other family law issues.  She is active in collaborative family law and a member of Charlotte Collaborative Divorce Professionals.  Lewis is a certified Family Law Specialist, a certified Parenting Coordinator, and guardian ad litem.

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