June 25, 2015 By Paul Wallin
transgender child custody
California family courts may soon be faced with the challenge of addressing transgender equality in child custody matters.

Parenting is one of the hardest but most rewarding jobs in the world. Unfortunately, there is not a “Universal Parenting Guidebook” that can give parents help when addressing difficult issues. Parenting together is hard enough, but when parents are embroiled in a child custody battle, the difficulty in raising a child can be unimaginable.

Society still struggles to understand transgender people and the conflict that occurs within a person that identifies as a gender different than their outward appearance. The court system in California has not been able to address this topic in a family law case. Specifically, California family law courts have not had the opportunity to address the issue when parents disagree over raising a transgender child.

Earlier this year in Kent, Washington, a single mother of a transgender daughter turned to gofundme.com to raise money for her legal fees in a custody battle with the child’s father. The mother is seeking sole custody of their daughter because the father has been forcing the child to be a boy, and refuses to refer to the child as a girl or let her wear girl’s clothes. The child was born as a boy, but now recognizes herself as a girl.

Although the California courts have not faced this issue, it would be a helpful discussion to discern how a California court might handle such a case. However, we must first explain some family law concepts that will be necessary later on in our discussion.

Physical Custody Defined

Physical custody is how much time that the child is physically with you and the other parent. The court can order one parent to have primary physical custody of the child, or physical custody can be held “jointly” between the parents. If one parent is determined to have primary physical custody of the child, the child is physically with that parent for a majority of the time (more than 50%) and that parent will mostly be responsible for the child’s everyday care.

It is also important to note that while one parent has physical custody of the child, that parent will have the right to make decisions regarding the child. That is why the mother from Washington is seeking sole custody of her child — so the father can’t force the child to be a boy when the child is in his care.

Legal Custody Defined

transgender child custody 2

Legal custody deals with which parent will be responsible for making the major decisions regarding the child’s welfare. This includes:

  • What school the child should attend
  • What extra-curricular activities the child should sign up for, and
  • What type of medical care the child should receive

Similar to physical custody, the court can order one parent to have sole legal custody or for both parents to be have joint legal custody.

“Best Interest of the Child” Standard

When determining any issue that deals with child custody, the court will make an order based on what is in the “best interest of the child.” This gives the court discretion to review the situations of both parents and compare them to the specific needs of their child.

Sole Legal and Physical Custody Situation

In a child custody case that involves parents that disagree on how to raise their transgender child, the first step is to determine what type of custody each parent has. If one parent has sole physical and legal custody of the child, that parent can raise the child as he/she sees fit. Probably the only option the other parent has is to file a motion to the court to modify the custody order, and argue that the way the child is currently being raised is not in the child’s best interest.

In this situation, the parent without custody rights to the child will probably have to provide significant evidence showing that the child’s welfare is being negatively affected by the actions of the parent who has custody of the child.

Joint Legal and Physical Custody Situation

Alternatively, if both parents have joint legal and physical custody of a transgender child, the case becomes far more difficult. Thus, parents with joint custody have the right to raise the child as they see fit when the child is in their care.

If one parent feels the other parent’s method of parenting their transgender child is negatively affecting the child’s welfare, a motion must be filed with the court to modify the custody orders. The court will then want to hear from both sides to weigh what is the best course of action for the child. The court also has the option to order the parents to attend parenting classes and for the child to see a psychologist before a final decision is made. Another option is for the court to appoint a custody evaluator who will thoroughly analyze how the child is being raised by each parent, confer with other experts (therapists, psychologists, etc.), and provide the court a report to help the court make a decision on what is best for the child.

Regardless of the situation, the court will have discretion in determining what is in the best interest of the child. Considering how this situation has not been addressed by the California court system, it is imperative that you have an experienced family law attorney assist you if you are facing a similar child custody situation.

The Riverside Child Custody Attorneys at Wallin & Klarich are Ready to Help You

attorneys - transgender child custody
Contact an experienced California child custody attorney at Wallin & Klarich today

At Wallin & Klarich, we understand that going through a child custody case is difficult. The laws regarding child custody are complex and there are many factors that go into determining who will be awarded custody of your child. For this reason, it is important that you seek the assistance of an experienced family law attorney immediately. Our knowledgeable attorneys have over 30 years of experience successfully helping our clients in child custody and family law cases. Let us help you today.

With office locations in Orange County, San Bernardino, Los Angeles, Torrance, Riverside, West Covina, Victorville, Ventura, San Diego and Sherman Oaks, our knowledgeable attorneys are available to help you no matter where you work or live.

Call us today at (888) 749-7428 for a free phone consultation. We will get through this together.

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