Does Dating a Transgender Person Present a Custody Risk?
Q: Dear Karen,
I am bisexual, legally separated from my husband and intend to seek a divorce. Our separation agreement states that it will be a no-fault divorce. I have a 10-year-old son by this marriage.
For the last seven weeks, I’ve been dating a woman who is transgender. I have not introduced her to my son yet, but I can see that in a few months I will want to include her on outings.
Will being in a relationship with a transgender person make me vulnerable to losing joint custody of my son? I live in Maryland and my husband and I have an amicable relationship. He is also dating.
I look forward to your reply.
Marie
A: Dear Marie:
Although there are never any guarantees when it comes to child custody issues, dating a transgender person should not cause you to lose custody of your son. However, a court may attempt to limit or exclude your transgender partner from being present while your son is in the home.
Dating a transgender person will only become relevant to the custody determination if your soon-to-be ex-husband chooses to raise this as a legal issue. Early education about transgender issues can often head off potential problems before they become legal issues. In this case, there are several promising signs. You and your ex-husband have an amicable relationship and appear committed to resolving the divorce with a minimum of conflict.
Recent studies and clinical experience have demonstrated that when told in a healthy, age-appropriate manner, children can accept and understand transgender issues. I would recommend that you speak with a family counselor who has experience working with transgender clients to discuss the best possible way to introduce this issue to your child and ex-husband.
If you are not able to prevent your partner’s transgender status from becoming a custody issue, the court will be governed by the “best interests of the child" standard. In most states, including Maryland, a parent’s sexual orientation (and presumably your partner’s transgender status) is not relevant to the custody or visitation determination unless there is evidence that it is actually causing harm to the child. (A note of caution: Sometimes courts say that they are not considering the sexual orientation or transgender status per se to be harmful to the child but in reality, they treat it as though it were.) You should be prepared to demonstrate that your partner’s transgender status is not harming the child and to debunk the myths and stereotypes about transgender people. If this becomes an issue in your case, you should immediately contact an attorney familiar with gay, lesbian, bisexual and transgender family law issues.
If you need a referral to an attorney in your area, you can contact the National Center for Lesbian Rights. HRC also has a database of attorney referral services nationwide.
Karen M. Doering
Doering is staff attorney at the National Center for Lesbian Rights.
Feb. 26, 2003