Marriage and parenting are rights that all individuals can pursue regardless of their sex, gender, or sexual preference. Transgender individuals have the right to be parents and have the right to form a domestic relationship/civil union or in some cases marriage. With the increasing number of states allowing same-sex marriages, there are less and less obstacles for transgender individuals who wish to form a family. Transgender people encounter unique issues regarding marriage, child custody, legal spousal rights and other issues.
San Diego Family Law Attorney believes that marriage and domestic partnerships should be honored until death, annulment, or divorce. If your marriage or domestic partnership rights are being deprived based on your gender, please contact our local attorneys to ensure that you receive reliable and comprehensive representation. We understand that each individual has the right to the pursuit of happiness, all individuals should have the right to be in a healthy legally respected relationship and the right to be a parent.
The following topics are pertaining to transgender individuals who wish to marry and become parents within the United States. Each case is different, with their own set of issues, and each case is handled differently depending on the state law. Contact our San Diego family lawyers to learn more about your state law pertaining to your concerns.
Marriage and Domestic Partnerships
Same-sex marriages are becoming more accepted in the United States with states passing friendly gay marriage laws. States that practice and respect gay marriages include: Alabama, Alaska, Arizona California, Colorado, Connecticut, Delaware, Florida, Hawaii, Idaho, Illinois, Indiana, Iowa, Kansas, Maine, Maryland, Massachusetts, Minnesota, Montana, Nevada, New Hampshire, New Jersey, New Mexico, New York, North Carolina, Oklahoma, Oregon, Pennsylvania, Rhode Island, South Carolina, Utah, Vermont, Virginia, Washington, West Virginia, Wisconsin and Wyoming. The 37 states mentioned above have recognized gay marriages as legitimate and have provided options for individuals seeking civil unions or domestic partnerships. Due to the acceptance of same-sex marriage, transgender individuals are capable of marrying a person of the same or opposite sex.
States that do not respect civil unions or gay marriages include Arkansas, Kansas, Kentucky, Louisiana, Massachusetts, Missouri, Montana, Nebraska, North Dakota, Ohio, South Dakota, Tennessee, Texas. These thirteen states have adopted defense against marriage acts which give them the right to discriminate against a lesbian, gay, bisexual, or transsexual (LGBT) couple. If you reside in any of the above-mentioned states, you may still have federal law protection. Federal law and state law are sometimes at opposite ends which means that some of these issues require special attention. Please contact your local attorney to learn more about your rights to civil union or marriage.
Unlike same-sex marriages, different-sex marriages involving transgender individuals are more complex as it takes into account when the person transitioned (before or after marriage).
If you transitioned before marriage, it is crucial to have legal documentation to prove the validity of your gender change. In addition, you must be completely open with your partner about your sex change before marrying. Changing your gender on a government-issued ID such as a passport, birth certificate, or social security card, is the best way to ensure that your gender change is documented. However, there are some cases where even a documented gender change is not enough. In Texas for example, a trans woman was denied her spousal rights after the passing of her husband. The court which does not recognized same-sex marriages denied the trans woman the right to claim her husband's inheritance. Cases like these are becoming less common with the acceptance of the LGBT community and movement, but they may still occur in states that discriminate against same-sex marriage.
If you transitioned after marriage, the United States does not have the power to dissolve your matrimony. As mentioned before, marriages are respected in the United States and they are valid until one of the spouses dies, until one spouse files for a dissolution of marriage, or until one spouse files for an annulment of marriage. Consequently, if you have married before your gender transition, your marriage should still be respected in any state.
In many states across the United States, LGBT individuals have acquired the right to become legal parents or guardians of a child. Like the vast majority of people, transgender people may become parents through various outlets including adoption, surrogacy, natural birth, or becoming a parent to your partner's child. In the state of California, any individual is protected of their right to be a parent regardless of their gender. To become a parent of a child that is not biologically related to you and you wish to maintain ties with that child as a parent, you may find it in your best interest to become that child's legal parent.
Legal parents are people who have filed for the rights to become a parent to a child who was either conceived through birth or adoption. Legal parents have the most rights to fight for child custody or visitation in the event of a divorce. Transgender individuals who are in a relationship with a spouse or partner that has a child who they wish to have rights over in the event of a divorce should consider opting for second parent adoption. Becoming a parent to a child that is not biologically yours, will allow you to defend your rights as a parent in any court of law. After a divorce, legal parents have the right to establish child support and child visitation schedules that allow both parents the access to care for the child. However, transgender individuals may face discrimination in the court as judges tend to adhere to mothers and biological parents. If you wish to learn more about becoming a legal parent and the steps that you need to take to do so, you should consult with your local attorney to assure that you are protected under your state law.
With the rise of domestic relationships and marriages within the LGBT community, second-parent adoptions have become a popular method to include a non-biologically related person to a child's life. Second parent adoption does not abolish the rights of the first parent, in essence, a second parent adoption is a contract that protects both spouses or partner’s parental rights in the event of a divorce. In the event of a divorce, both parents have the right to fight for child support and for child visitation rights.
Second Parent Adoption
Second parent adoption rights have been fought for by the National Center for Lesbian Rights since the 1980s. It has become an option for individuals of the same-sex who are unified through a domestic relation or civil union but not through a matrimony. Currently, there are 18 states within the United States that allow second-parent adoption for individuals who are not married. The states that practice second-parent adoption for people who are not in a matrimony include: Arkansas, California, Connecticut Delaware, District of Columbia, Hawaii, Illinois, Maryland, Massachusetts, Nevada, New Hampshire, New Jersey, New York, Oregon, Pennsylvania, Rhode Island, Vermont, and Washington. In addition, Alabama, Alaska, Colorado, Iowa, Louisiana, Minnesota, New Mexico and Texas, have allowed same-sex unmarried couples to successfully file for second-parent adoption.
Child Custody and Visitation Rights
Transgender individuals who find themselves in a child custody dispute may find that their spouse or judge may understand the gender transition to be detrimental to the child's psychological health. The judge may not deny any one person the right to visitation or child custody based on their gender identity. When courts produce unfavorable resolutions that limit the rights of transgender people based on their gender identity, there may be enough reasons for a court to revisit and reevaluate its court decision. During the child custody dispute of Christian v Randall in 1973, the court ruled that the parent transitioning from female to male was not capable of providing a safe environment and therefore may be subject to a custody change. The court may not overturn their decisions based on a person's gender identity but may do so if they find evidence of child abuse.
Child custody laws exist to protect the child’s best interests, ensuring that the child is in a protected and safe environment and ensuring that the child’s parents are granted the ability to make the important decisions of the child’s life. Child custody allegations usually occur in local and state courts and the verdict is usually honored and not overturned unless the court executes an order that is later deemed an error.
To provide the most effective child custody resolution the best interests of a child are taken into account to assure they go to a safe environment with a parent that has the capability to provide for the child. For the court to determine the child’s best interest the court will provide home investigators to evaluate the safety of the home and professionals to interview the children and determine their mental and physical health. The Uniform Marriage and Divorce Act, provides instruction to determine the best interest of the child.
- The act takes into account the opinions of the parents on their child custody
- The act takes into account the child’s opinion on who would be a better custodian
- The act takes into account the relationship the child has with his or her parents and siblings
- The act takes into account how well the child will adjust to his or her home, community, and school
- The act takes into account the mental stability of all individuals involved in the case
Most state laws have adopted the guidelines mentioned above to determine the child's best interest. However, each case is very different which allows the court the ability to establish their own parameters to determine the child’s best interest.
United States courts cannot limit a transgender individual from their custody rights based on their gender identity. However, a court may limit an individual's child custody rights if the parent is physically or emotionally harming the child. When dealing with judges who are not accustomed to these issues, it is important to have a legal representative who can remind the judge to base his ruling on evidence and not on the notion that transgender people harm children.
Transgender Parent Protections
Courts have had limited exposure to transgender issues and in many cases produce solutions that that deprive a transgender person of their rights. Transgender parents need to be aware that despite all the advances in the family law, they may still be subjects to unfair treatment in the court. Transgender parents need to take certain steps to ensure they are protected as parents and as partners under the law.
Transgender individuals who are married may exercise their right to apply for married benefits such as, filing for tax returns or adopting a child. Married transgender individuals are advised to take legal protections in the event of a divorce or in the event that the marriage is challenged. Married couples have exclusive benefits that cannot be duplicated by other means, but we advise that a married transgender person should acquire:
- Documentation that provides guidance on financial and medical matters, assigning the other spouse as a trusted person in the event that something happens to the other individual
- A ‘last will’ that includes both spouses
- An agreement detailing each of the spouse's rights and legal responsibilities with regards to their shared property, assets, children, and other factors that may be considered valuable to the couple.
- An agreement stating that the non-transgender partner is aware of the transgender identity of the other spouse. Claims of deception can be ruled out if written document is presented as a form of proof that the non-transgender partner was aware of the changes.
Protecting yourself through these means will ensure that your rights are respected in a court of law. These extra steps for protection will allow you to fight for child custody or spousal support allegations.
To learn more about what you can do to protect your rights as a transgender spouse and parent, please contact San Diego Family Law Attorney at 619-610-7425. We are ready to advise you on your specific case and provide you with guidelines to ensure you the most favorable outcomes. Courts that have little experience on transgender issues do exist and we are ready to represent you and your rights in any court of law.