Gen­der iden­tity emerges as a new front in cus­tody bat­tles

The Arizona Republic - - Front Page - Maria Pol­letta

The di­vorced par­ents had joint cus­tody of their three chil­dren and equal par­ent­ing time.

But soon after the mother be­gan al­low­ing their male child — iden­ti­fied in le­gal doc­u­ments as “L.” — to wear a skirt to school, the fa­ther took his exwife to court.

Ar­gu­ing that the mother, “through var­i­ous acts, was push­ing a fe­male gen­der iden­ti­fi­ca­tion on L.,” the fa­ther asked for sole le­gal cus­tody to make de­ci­sions about the child’s health care and school­ing, ac­cord­ing to court records.

He also re­quested that L. live with him full-time.

A fam­ily-court judge re­sponded with sweep­ing in­junc­tions, for­bid­ding the mother to dis­cuss gen­der-re­lated is­sues at home; dress L. in fe­male cloth­ing; let the child have any “fe­male ori­ented” toys; or re­fer to L. as “her,” “she” or a “girl.”

Though the in­junc­tions were de­scribed as “tem­po­rary,” they re­mained in place for more than two years while the case was un­der re­view. When they were par­tially lifted in early 2016, they ac­com­pa­nied a rul­ing “that all three chil­dren’s best in­ter­ests” would be served by grant­ing the fa­ther sole le­gal cus­tody.

A re­cent Ari­zona Ap­peals Court re­view of the case high­lights the chal­lenges of me­di­at­ing cus­tody bat­tles between par­ents who dif­fer on how to han­dle kids who may be trans­gen­der — a mat­ter that LGBT ex­perts say most U.S. fam­ily courts are poorly equipped to han­dle.

Clashes over how to back kids ex­plor­ing their iden­ti­ties have re­vived cus­tody fights in at least 10 states.

“What seems to hap­pen is that the sup­port­ive or af­firm­ing par­ent is ac­cused of push­ing the child to­ward a trans­gen­der iden­tity,” said Kather­ine Ku­valanka, an as­so­ciate pro­fes­sor of fam­ily sci­ence at Mi­ami Uni­ver­sity who is pi­o­neer­ing re­search on such cus­tody dis­putes.

“If a boy is in­ter­ested in wear­ing a skirt or play­ing with dolls, or a girl is say­ing they want their hair cut short, those things are not go­ing to ‘turn a child trans.’ But if courts lack ex­pe­ri­ence in this area, they tend to fall back on stereo­typ­i­cal no­tions and are some­times fear­ful of this idea that a par­ent could push their kid. “Lack of ed­u­ca­tion is a ma­jor prob­lem.”

L. was about 6 years old in 2013 when wear­ing a skirt to school trig­gered the cus­tody dis­pute. Ac­cord­ing to court records, the child’s mother in­di­cated that L. had “long demon­strated a pref­er­ence for stereo­typ­i­cally ‘fe­male’ items” at that point and “would wear fe­male cloth­ing at home.”

That time­line didn’t sur­prise Ku­valanka: She said re­searchers have found that chil­dren’s con­cept of gen­der de­vel­ops between the ages of 3 and 6. The Amer­i­can Psy­chi­atric As­so­ci­a­tion says “cross-gen­der be­hav­iors” of­ten start between ages 2 and 4.

Gen­der ex­plo­ration is con­sid­ered a nat­u­ral part of child de­vel­op­ment, and not ev­ery child who flouts gen­der norms will later iden­tify as trans­gen­der. But most trans adults in­di­cate that they started feel­ing like they were in the “wrong” body very early.

“What I al­ways find in­ter­est­ing is when a child as­serts a gen­der that we’re ex­pect­ing based on their sex as­signed at birth, no one says, ‘Well, you’re too young to know your gen­der,’” Ku­valanka said. “But when a child is as­sert­ing a gen­der that peo­ple aren’t ex­pect­ing, that’s when peo­ple say the child maybe doesn’t know what they’re talk­ing about, and maybe they’re too young.”

In L.’s case, a psy­chol­o­gist, physi­cian and psy­chother­a­pist each di­ag­nosed the child with gen­der dys­pho­ria in 2014, the year after the skirt in­ci­dent. Gen­der dys­pho­ria refers to last­ing dis­tress caused by a con­flict between the gen­der a per­son is as­signed based on anatomy and the gen­der that per­son feels.

When chil­dren with gen­der dys­pho­ria are re­jected by their fam­i­lies or feel they have no place to be their au­then­tic selves, they face an in­creased risk of de­pres­sion, anx­i­ety and sui­cide.

In early 2015, more than a year after the court be­gan polic­ing L.’s gen­der ex­pres­sion at home, court records show the child “made state­ments about dy­ing” and “threat­ened or en­gaged in self-harm.”

Ac­cord­ing to the Ap­peals Court de­ci­sion, re­leased April 3, the fam­ily court judge in L.’s case rec­og­nized the pos­si­bil­ity that the fa­ther’s “view of L.’s sit­u­a­tion may lead him to make less-than-ideal choices re­gard­ing L.’s care” and granted him le­gal cus­tody any­way.

The judge tried to min­i­mize po­ten­tial harm by man­dat­ing treat­ment with a spe­cific coun­selor and gen­der ex­pert and pro­hibit­ing the par­ents from dis­cussing gen­der-iden­tity is­sues with the child.

The Ap­peals Court over­turned those orders in its de­ci­sion, call­ing the lim­i­ta­tions a “se­vere mi­cro­man­age­ment of Mother and Fa­ther’s par­ent­ing.” Un­der Ari­zona law, it said, fam­ily courts can only re­strict par­ent­ing time if they iden­tify some­thing that “would en­dan­ger se­ri­ously the child’s phys­i­cal, men­tal, moral or emo­tional health.”

Gen­der-iden­tity ex­perts ap­plauded the lift­ing of the “gag or­der” on gen­der dis­cus­sions with the child. But they told The Re­pub­lic that they were con­fused by the rest of the Ap­peals Court rul­ing, given L.’s his­tory of sui­ci­dal be­hav­ior.

“In a lot of these cases, chil­dren are stat­ing, ‘I don’t want to live,’ or they’re get­ting ad­mit­ted to Phoenix Chil­dren’s be­cause they’re slam­ming their heads against floors,” said Cammy Bel­lis, founder of Moth­ers in Tran­si­tion. The non-profit group con­nects moms of gen­der non-con­form­ing chil­dren with le­gal re­sources.

“Par­ents feel that it’s their right to be able to make le­gal and med­i­cal de­ci­sions about their child,” she said. “But when your child’s mak­ing death state­ments and hav­ing sui­ci­dal ideations, when do the courts plan to step in?”

Shan­non Minter, le­gal di­rec­tor at the Na­tional Cen­ter for Les­bian Rights, said he was “puz­zled that the court did not give the trial court an op­por­tu­nity to re­visit which par­ent should have le­gal de­ci­sion-mak­ing power.”

The cen­ter helped rep­re­sent L.’s mother on ap­peal. “Our con­cern and the mother’s con­cern is en­tirely with the wel­fare of the child,” Minter said. “We do worry that … the child is left po­ten­tially un­pro­tected here.”

Schol­ars and ad­vo­cates say L.’s case re­flects a wide­spread lack of ex­pe­ri­ence with gen­der is­sues among fam­ily-court pro­fes­sion­als in the U.S.

They drew par­al­lels with the fam­ily-court en­vi­ron­ment of the 1970s and 1980s when ex-part­ners of gay and les­bian par­ents used stereo­types about ho­mo­sex­u­al­ity to win cus­tody.

“It makes sense be­cause we’ve re­ally just started to scratch the sur­face of trans rights and trans vis­i­bil­ity in gen­eral,” Bel­lis said. “Bias and mis­in­for­ma­tion are ram­pant.”

Le­gal ex­perts con­tend that un­fa­mil­iar­ity with how gen­der iden­ti­ties de­velop can lead to grave con­se­quences in cus­tody dis­putes be­cause most states use a sub­jec­tive “best in­ter­est of the child” stan­dard.

In other words, if a judge views the pos­si­bil­ity of be­com­ing an LGBT adult as a neg­a­tive out­come; feels that an “un­de­sir­able” gen­der iden­tity is a re­versible con­di­tion; and isn’t aware of the emo­tional and phys­i­cal risks associated with push­ing a child to con­form to gen­der norms, that judge will find plac­ing the child with a “non­sup­port­ive” par­ent to be in the child’s best in­ter­est.

A 2013 anal­y­sis found that “in the ab­sence of ap­pro­pri­ate ex­perts and in­for­ma­tion, courts fa­vor the par­ent who re­jects the child’s non-con­form­ing gen­der iden­tity.”

Re­searchers have also iden­ti­fied judges who take it upon them­selves to de­cide whether a child has gen­der dys­pho­ria, rather than re­ly­ing on med­i­cal ex­perts.

In the New Jersey Law Jour­nal, fam­ily-law at­tor­ney Eliana Baer de­scribed an Ohio case in­volv­ing a mother whose ex-hus­band sued her for cus­tody after she al­lowed their male child to en­roll as a girl at a new school.

“Both par­ents ac­knowl­edged that the child wanted to live as a girl and wanted to re­main with the mother,” Baer wrote, and the child cor­rob­o­rated the state­ments dur­ing a recorded in­ter­view with the judge.

The judge “re­jected the child’s state­ments be­cause he be­lieved the child’s ges­tures were not fem­i­nine, be­cause the child did not men­tion be­ing at­tracted to boys, and be­cause the child (en­joyed) a num­ber of stereo­typ­i­cal male ac­tiv­i­ties,” Baer wrote.

He “found that the mother was the ac­tual cause of the child’s de­sire to live as a girl” and awarded cus­tody to the fa­ther.

Bel­lis said ev­ery case her or­ga­ni­za­tion has han­dled in­volved a mother be­ing blamed for forc­ing a child to be trans­gen­der, of­ten by an ex-part­ner who was con­trol­ling or abu­sive dur­ing the cou­ple’s re­la­tion­ship and could “out-re­source” the mother fi­nan­cially.

L.’s mother makes about $10,000 a year, ac­cord­ing to her at­tor­ney, com­pared with the fa­ther’s an­nual in­come of $250,000.

“This idea that a mom can make some­one trans is a strat­egy that seems to be very con­vinc­ing to fam­i­ly­court pro­fes­sion­als, even though it com­pletely dis­re­gards the child’s agency,” Bel­lis said. “I haven’t met a sin­gle par­ent who said, ‘Yes, I’m go­ing to force my child to do this.’ These moms are like, ‘I can’t even get my kid to clean their room.’”

In cases where fam­ily-court judges en­dorse shared cus­tody, gen­der non-con­form­ing chil­dren can strug­gle when re­quired to con­stantly go back and forth between two house­holds with dif­fer­ent gen­der-ex­pres­sion rules.

“We had a case where a (fe­male) child as­serted a boy iden­tity, and the mom was be­ing taken to court for sup­port­ing the child,” said Ku­valanka, the Mi­ami Uni­ver­sity re­searcher. “At one point, they were driv­ing and the child, a 2nd-grader, said, ‘I’m just go­ing to go back to be­ing a girl. It’ll be eas­ier for ev­ery­one.’ It’s a lot for an 8or 9-year-old kid to deal with.”

To min­i­mize the risk of de­pres­sion and self-harm, psy­chol­o­gists urge par­ents to pro­vide a safe space for chil­dren to de­velop their gen­der iden­ti­ties, even if they dis­agree with or fear a child’s “un­con­ven­tional” be­hav­ior. They ac­knowl­edge this can be par­tic­u­larly dif­fi­cult when other rel­a­tives or the fam­ily’s re­li­gious com­mu­nity are not sup­port­ive and rec­om­mend find­ing a ther­a­pist who can work with the fam­ily.

As for fam­ily-court pro­fes­sion­als, gen­der-iden­tity ex­perts en­cour­age them to ed­u­cate them­selves on child de­vel­op­ment and to re­mem­ber that al­low­ing for gen­der ex­plo­ration isn’t the same as ap­prov­ing dra­matic changes such as gen­der-re­as­sign­ment surgery.

“There have been cases where (an ex-part­ner) started to say a par­ent was push­ing the child to be trans­gen­der, and im­me­di­ately the judge would step in and be like, ‘Wait a sec­ond, this sounds like you’re just try­ing to ma­lign this other par­ent,’” Ku­valanka said. “So, we’ve cer­tainly heard of good out­comes as well, and that’s great.”

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