Custody Litigation Involving Gender-Diverse Children

A custody case out of Texas has made headlines recently after Senator Ted Cruz called a Dallas mother’s support of her child’s gender identity “abuse,” prompting more than 2,000 parents and pro-LGBTQ advocates to repudiate the comments.
Case law involving the parenting of gender-diverse children is limited and has evolved over time. In 2007, the Ohio Court of Appeals came out with the unpublished decision Smith v. Smith. The appeal was filed by a mother who lost custody of her children to the father after her eldest child, who was born male, wished to identify as female. The father claimed the mother was “forcing” the child to wear girl’s clothing, go by a female name, and participate in transgender support groups.
In 2004, after the father moved to modify custody, the trial court ordered that the mother stop any treatment or counseling for the child, and to stop allowing the child to attend support groups, to be addressed by a female name, and to wear female clothing. After a trial, at which both parties called expert witnesses, the trial court gave the father primary custody of the child. The Court of Appeals affirmed the decision but stated there was “nothing to prevent” the mother from filing to change custody “should the circumstances change; for instance, on the onset of puberty for the older child or a more clear and concise medical diagnosis.”
As society has changed to become more LGBTQ-accepting, however, the law has followed suit. In Kristen L. v. Benjamin W., an unpublished case out of Alaska from 2014, a mother had primary custody of the parties’ two children in Alaska, and the father lived in California and had visitation during school breaks. Prior to the divorce, there were discussions between the parents regarding their younger child (who was born male), who wanted to wear female clothing, nail polish, and make-up. The father was more accepting of this than the mother.
One year, when the children arrived in California to spend summer with the father, he noticed bruises on the younger child, who disclosed that the mother and her new husband had inflicted them. The father enrolled the child in counseling, and the counselor reported the abuse to CPS. The father then moved to modify custody.
At the hearing, the trial court concluded that the mother had engaged in domestic violence and had an “inability to deal with her child’s transgender issue.” The trial court modified custody to give the father primary custody of both children, which was firmed on appeal.
Earlier this year, the Ohio Court of Appeals decided Matter of H.C.W., a case in which a mother petition to change her 15-year-old child’s female birth name to a male name, stating the child had picked that name. At the hearing, both parents voiced their support of the change; nevertheless, the trial court denied the petition.
The appellate court found that all requirements were met for a statutory name change, and that the next step would be for the court to consider the child’s best interest. The court cited to a New Jersey decision, Sacklow v. Betts, 450 N.J.Super. 425, 163 A.3d 367 (2017), which articulated a list of seven factors to be considered before a name change consistent with a child’s gender identity can be granted:
(1) The age of the child;
(2) The length of time the child has used the preferred name;
(3) Any potential anxiety, embarrassment or discomfort that may result from the child having a name he or she believes does not match his or her outward appearance and gender identity;
(4) The history of any medical or mental health counseling the child has received;
(5) The name the child is known by in his or her family, school and community;
(6) The child’s preference and motivations for seeking a name change;
(7) Whether both parents consent to the name change, and if consent is not given, the reason for withholding consent.
The Ohio court adopted the Sacklow factors “with minor modification” and used them to analyze the case at hand. The appellate court found that the lower court failed to consider several factors, including the child’s parent’s wishes and beliefs regarding their child’s best interests, the child’s mental health treatment, the “practical aspects” of the child’s gender identity (i.e., that he had been presenting as a male and using his preferred male name).
The case out of Texas presents with similar facts as the cases mentioned in this blog. The child began asking to wear dresses at the age of 3. At the age of 5, the child began insisting she was a girl and, by the age of 7, had consistently identified as female to doctors, school staff, and family members. The child’s mother is supportive of this and lets the child wear the clothing she chooses. The child’s father insists the child is not transgender, even going as far as to create a website where he accused the mother of child abuse and posted photos and videos of the child doing traditionally “male” activities.
After a 15-month-long court battle, a jury awarded the mother full custody of the child. After the verdict, however, not only did Senator Ted Cruz comment publicly on the case, but Texas Governor Greg Abbott has also called for an investigation into the mother by CPS. After the public comments, the Judge in the case decided to vacate the jury decision and granted the parties joint custody – meaning the child will be going back and forth between one parent who supports the child’s gender identity and one who does not.
What is the science behind parenting gender-diverse children? The American Academy of Pediatrics issued its official policy in 2018 on the subject of parenting transgender and gender-diverse children. In it, the AAP states that youth who identified as transgender were more likely to report suicide attempts and ideations than. The AAP also stated, citing the American Psychological Association and the American Psychiatric Association, that there is no evidence that mental illness is “inherently attributable” to a child’s gender identity, but that these statistics likely stem from “internal conflict between one’s appearance and identity,” “limited availability of mental health services,” lack of access to healthcare providers experienced in the area, discrimination, stigma, and social rejection.
As for parenting, the AAP recommends the “gender-affirmative care model” for treatment, which involves nonjudgmental explorations of emotions and gender expressions. Their evidence suggests that this type of treatment results in fewer mental health concerns. A 2017 article by Sabrina L. Katz-Wise, Margaret Rosario, and Michael Tsappis published in the Pediatric Clinics of North America Journal cited studies finding that parental rejection could increase the risk of mental illness and that “family acceptance may be protective for LGBT youth’s health.” Specifically, they found that family acceptance “is associated with greater self-esteem, social support, general health status, less depression, less substance abuse, and less suicidal ideation and behaviors amount LGBT youth.”