COMMENT
The Transsexuality of a Parent
as a Factor in the Award of Child Custody
and Visitation Rights
"Tom"[1] is a 43 year old, well-educated, professional
male, who is presently involved in divorce proceedings in
south-eastern Michigan. Tom is the father of two young
boys, Tom Jr., 11 and Alex, 9. Tom has been married for
14 years, and has been under psychological and physiologi-
cal supervision for at least 10 of those years. Tom has
been diagnosed as a transsexual,[2] and has entered into
a clinical program that will culminate in both a physical
and a legal[3] change in his sex.
Tom's wife, Marie, has asked the court to deny Tom
custody or visitation. Marie alleges that Tom's condition
is harmful to the mental well-being of their children, and
that in their best interests contact with their father should
be limited.
Neither Tom nor Marie is really sure what effect his trans-
sexuality may have upon the children in the years to come.
Neither of their attorneys feel wholly confident in assess-
ing what effect Tom's transsexualism will have upon the
eventual outcome of the divorce. In fact, none of the
people involved agree as to exactly what "being a transsex-
ual" means.
Their uncertainty is understandable. It is almost impossible
to locate any two court decisions or medical experts who will agree to any but the most basic issues which Tom's condition presents.[4] This is not because Tom's condition is unique--it's not. Estimates of the number of anatomically male transsexuals within the general population range from 1 in 37,000 to 1 in 1,000,000.[5] Instead, opinions are varied due to the lack of dissemination of information about transsexualism.[6] In this regard the legal field has lagged far behind both medicine and psychiatry.[7] While doctors and psychotherapists have been almost unanimous in accepting the validity and necessity of treatment for transsexual patients,[8] and have developed standardized guidelines for such treatment,[9] the courts have handled each case as a completely isolated event. This has led to a great diversity of results.[10] There are, however, basic approaches which have been followed in the majority of cases, and it is upon those basic approaches that this comment will focus.
An Overview of Transsexualism
Before being diagnosed as a transsexual, Tom had spent the
majority of his life seeking an answer to his internal turmoil.
Tom has learned that he is not homosexual, at least not as
it is commonly understood; Tom's short sojourn into the Gay
world was less successful than his attempt to fit into life as
a married man. Tom joined a therapy group for transves-
tites, but after just four months both he and his therapist
agreed Tom did not suffer from transvestism. Tom functions
well in society and on an interpersonal level with his family,
but he is constantly plagued by self-doubt and
depression.[11]
Although the incidence of transsexualism is "centuries old,
"[12] until recently[13] transsexualism had been grouped together with transvestism[14] (a desire to wear the clothes of the opposite sex) and homosexuality[15] (sexual desire for those of one's own sex). This is probably because there was little that a transsexual could do to bring his[16] inner self into harmony with his physical body. His only option was to adopt the practices of transvestites and homosexuals; in other words, to attempt to look like a woman and to have a "normal" relationship with a man.
In the 1930's[17] doctors combined procedures developed to treat women with vaginal agenesis (absence of a vaginal vault)[18] with hormone treatments used to alleviate the extreme problems experienced by some post-menopausal women to the purpose of altering the body of a person to become their "correct" sex.[19] Various surgical procedures have been in use,[20] but since the 1950's the guidelines of the Harry Benjamin International Gender Dysphoria Association (HBIGDA) have been followed by nearly all doctors and mental health professionals involved in treating this problem.[21] The HBIGDA guidelines are very detailed and call for a variety of safeguards to prevent a false diagnosis from occurring.[22] For instance, the opinions of at least two members of the medical field and one associated profession are required before surgery is to be performed.[23] In addition, the patient must have lived as a member of the "opposite sex" for at least one year before surgery.[24] Help is provided with learning to assimilate into the new role that society expects, and both individual and peer group counseling are necessary.[25] Only after all these requirements are met may surgery be performed.[26]
The surgery itself, while appearing to be the culmination of the treatment procedures, is neither the last nor the most taxing part of the process. Continued psychological and medical treatment may be required for six months to several years afterwards.[27] While post-operative patients are nearly unanimous in their satisfaction with the change they have undergone,[28] personal and especially legal problems may continue to plague them for the rest of their lives if they are not given adequate consultation and preparation beforehand.[29] In response to this, health professionals have begun to call upon the legal profession to provide the services so desperately needed by their patients.[30] With the clinics in Tom's area of Michigan reporting "several hundred"[31] patients, there is a demonstrable need for qualified and concerned members of the legal profession to address these issues.
Legal Recognition of Transsexualism
Tom is lucky that he was born, and resides, in Michi-
gan. Michigan is one of the few states that has legislatively
recognized true transsexualism.[32] Tom may have the
sex and name on his driver's license altered to aid him in
adjusting to his new life even before the actual
surgery.[33] Once all surgical procedures have been
completed, Tom will be given a new birth certificate, listing
his new name and correct sex.[34] The old certificate will
be available only upon court order. Tom will be legally a
woman.[35]
As previously stated,[36] the law has lagged far behind
medicine in confronting this issue. There has been no unified or comprehensive approach advanced, and the coverage of this issue in legal publications has been sparse.[37] The legislatures of several states have faced this issue and have passed a variety of acts, some in complete opposition to similar acts in neighboring states.[38] Due to this disparity, it becomes important to research fully the laws which might affect the outcome of any particular case.
The legislative acts in force in the various states can be classified into four distinct types: acts which allow for the issuance of new "original" official documents;[39] acts which allow official records to be amended;[40] acts which specifically deny alteration of official records for reason of a transsexual operation;[41] and acts which affect transsexuals in ways other than to effect changes in official records (for instance, laws regarding the wearing of "sexually inappropriate" clothing).[42]
A study of the legislation affecting an issue is exceptionally helpful in areas where precedential case law is scarce. Where there is undeniable legislative intent to recognize the legitimacy of transsexuality and the sex-change procedure, courts must take note of that fact in considering the actions of a parent seeking such treatment. In the absence of contrary case law, there can be only one decision: a parent who has been diagnosed as a true transsexual, and who has decided to assume living in his correct sex, is doing so with the full support of the law and should not be denigrated for doing so.[43] Since transsexualism is a medically recognized illness,[44] for one to suffer from this affliction and refuse or be denied treatment could have far worse repercussions upon all those involved than would be caused by proper treatment. Since the medical and mental health profession seem to be united in their belief that the only "cure" for true transsexualism is to undergo a sex reassignment procedure,[45] the patient's decision to undergo such a procedure is justifiable. However, the fact that one is justified in undertaking a particular action is no assurance that there will not be instances where that might prevent performance of some other, equally justified, action.[46] Having the right to perform an act does not imply that there cannot be controls or restrictions on that act, or that there can never be repercussions following that act.[47] In a child custody or visitation decision, the court must look not only at the act in question but also the effect that the act may have upon the child, and base any decision upon the best interests of the child.[48]
The "Best Interests" Standard
No one is contesting that Tom loves his children, or that
they love him. In fact, the children have made it clear that
they wish to continue their relationship with him. They are
apprehensive and uncertain as to what the future holds, but
the basic bonds of their relationship still holds strong. Tom
does not deny that the children's uncertainty might cause
them some additional stress, but he feels that the harm
caused by completely disrupting the bond between them
would be even greater.
In deciding child custody and visitation issues most states
have adopted the "best interests of the child" standard recommended in the Uniform Marriage and Divorce Act,[49] developed by the National Conference of Commissioners on Uniform State Laws and endorsed by the American Bar Association (Group for the Advancement of Psychiatry, 1980).[50] These states list several factors which are to be evaluated, including such things as the ability of the parent to meet the child's educational, emotional and medical needs. [51] The last factor is usually a "catch-all" category, allowing the court to consider any other "relevant factor".[52] The law leaves the weight to be placed on each of these factors up to the judge.[53] There are distinct differences in the way in which these factors are weighted by the courts and by mental health professionals.[54] Mental health professionals (social workers and psychologists) have tended to focus more upon the child's wishes and the relationship between the parent(s) and the child.[55] The courts have held to the more traditional criteria of legal/biological relationship (favoring natural parents and mothers where young children are concerned) and family structure (favoring two-parent families).[56] In attempting to reduce the effects of non-uniform application of the best interests criteria and the bias and error inherent in such cases, several alternative standards have been recently proposed.[57] The common factor in all of these alternative approaches seems to be a greater focus on the relationship between the parent and child--focusing on "Which parent is a better match for having primary responsibility for raising this child?" rather then "Which parent is the better adult?"[58]
There has also been significant disagreement as to the degree which divorce and the attendant environmental[59] changes will affect the psychological adjustment of the affected children.[60] Some studies have shown that the ability of the child to adapt is unaffected by the degree of these changes,[61] while others have shown correlation between the degree of change, the age of the child and the potential harm to the child's development.[62] The repercussions of a divorce have been seen in children even after they have themselves become adults and have married.[63] Given the almost unlimited number of factors which may be considered and the widely disparate opinions as to the relative importance of each, the Supreme Court of Appeals of West Virginia stated that "in the average divorce proceeding intelligent determination of relative degrees of fitness requires a precision of measurement not possible given the tools available to judges."[64] When one of the parents involved suffers from any sort of mental or physical disability, determination of relative fitness may become even more difficult. To resolve this dilemma, the court needs to develop the proper "tools"--one of which is the use of expert testimony to decide how that disability might affect the best interests of the child.
The Best Interests Doctrine versus
The Transsexual Parent: Winner Take All?
Tom and his lawyer have the reports of Tom's doctors
stating that he is a true transsexual, and regardless of what
else he may do he can not change that fact.[65] They
have researched the laws currently in force in Michigan and
have reached the conclusion that what he is doing is at least
legally correct. They have discussed the "best interests"
doctrine as it applies in Michigan, and now they need to
decide how Tom's condition might be viewed by the court.
In cases concerning a transsexual parent's custody or
visitation rights the courts have freely used the discretion afforded to them under the best interests doctrine.[66] This may be seen by comparing the results in the following two cases.
In In Re the Custody of T.J.[67] the Minnesota Appellate court addressed the issue of a father who had been diagnosed as a transsexual and found that the father's "condition [did] not automatically disqualify him from having a relationship with his child,"[68] as was suggested by the child's mother. The court found that "there is no evidence which would lead the Court to believe that providing primary parenting responsibilities to a gender dysphoric father would cause future problems for T.J.,"[69] and affirmed the award of custody to the father. The court discussed Minnesota's statute setting forth its version of the best interests standard,[70] and focused on the relationship between the parent and child and the capacity of each parent to provide for the child's emotional, mental and physical well-being.[71] The court found that a close and loving relationship existed between T.J. and his father, and that the father provided a safe, stable and satisfactory living arrangement.[72] The court also noted that the father had been seen by two prominent therapists, and each had found that he was emotionally stable and possessed a great insight into his condition. [73] There was also testimony that the child's anxiety was caused more by the mother's extremely negative reaction to the father than by the father's condition itself.[74]
The case of Cisek v. Cisek[75] presented slightly different facts but led the Seventh District Court of Appeals to a completely different decision. The father had completed the necessary procedures and had entered into life as a woman, beginning a career as a vocalist.[76] This caused quite a bit of local notoriety, and several appearances on television within the local area followed. [77] The mother, who had custody subject to the father's visitation rights, petitioned to have those rights revoked. She presented testimony that the father's sex change, and the notoriety surrounding it, might have an adverse effect upon the child's mental well-being.[78]
The court noted that the father had presented no testimony disputing these allegations or showing why he had acted as he did. [79] The court granted the mother's petition, but stated that it was not meant to be permanent.[80] The father would be allowed to resume visitation upon a showing that a plan had been developed which would protect the children from the threatened harm.[81]
Even within the same case, where two judges say that they are applying the same reasoning to the same facts, the results may seem diametrically opposed. This happened in Steinke v. Steinke[82] where a woman sued for divorce and claimed that her husband's seeking treatment for transsexualism constituted mental cruelty. [83] The Superior Court of Pennsylvania granted the divorce, but stated that, given the advances in medicine and the growing acceptance of transsexualism in our society, it was "difficult to believe that there was a recognizable illness in the first place. "[84] The court said that it would "hesitate to accept the view that mental imbalance is shown [when one] experiments with [transsexualism]".[85] The court made special note of the fact that the father was following the course of treatment recommended by his doctors, and that "no cure or treatment was prescribed or treatment recommended other than continuation or even increase of the same behavior."[86] There was little option for the father to pursue. A separate opinion, which concurred in the holding on other grounds, had "no difficulty or hesitancy" in finding that the husband suffered from a mental illness such as "would naturally repulse" a woman of ordinary sensibility.[87]
While there are fewer female-to-male transsexuals,[88] there have been cases where it is the mother who has suffered from this problem. This occurred in the case of Christian v. Randall.[89] Following their divorce, the mother was given custody.[90] Sometime later she was diagnosed as a transsexual and underwent treatment and surgery.[91] After her remarriage to a woman the father petitioned for a change of custody.[92] The trial court granted his petition, but the appellate court, after reviewing the testimony of the children's school teachers, principal, and family services worker, reversed.[93] The court stated that the mother's change appeared to bother no one but the father.[94] This, in itself, was not a sufficient change in circumstances to warrant a change in custody.
The common factor in all of the foregoing cases is the degree to which the transsexual parent has gone to protect the child from the potential adverse effects which might be present. The court made note of this in a recent case, Daly v. Daly.[95] In Daly the mother had and custody and the father had visitation during the summer. Sometime during the winter the father underwent a complete change of sex without telling anyone of his plans.[96] The child first learned of her father's transformation when she arrived for her summers visitation.[97] When the summer season ended, the father told the child that she could not discuss his change of sex with anyone.[98] This proved to be too much for her, and she suffered severe trauma.[99] The court wasted no time in terminating his visitation rights.[100] It is important to note that it was the father's actions in hiding his condition, and in failing to take measures to assist his child in coping with the change he had undergone, not the condition itself, that led the court to its decision.[101]
In all of the cases above, it appears that when a transsexual parent has sufficiently provided for the welfare of his children, the fact of the condition in itself should not be a bar to either visitation or custody. This is supported by several psychologists and medical doctors who have studied the children of transsexuals. [102] In the only intensive study to date, 37 children raised by transsexual or homosexual parents were followed for up to 16 years. No indication of abnormal social or sexual patterns were discerned. [103] From this it would appear that being a transsexual should not automatically preclude one from maintaining one's parental role--it need not be a case of "Winner Take All."
Conclusion
Tom and his attorney have learned much about the way the
law views transsexualism. Tom finds it a little strange that
different states have such widely divergent views on the
legitimacy of what he sees as an inescapable part of nature,
but he is thankful for the fact that his home state holds a
comparatively enlightened view. Tom feels that if he can
persuade the court that he has done everything he possibly
could to safeguard the well-being of his children, his changes
of retaining some amount of custody or visitation is quite
good. Tom is anxious but hopeful.
Transsexualism is a medically recognized fact.[104] As the
availability and awareness of treatment becomes more widespread, the issue of transsexual parents will occur more and more frequently in our courts. The legal profession must move forward with the medical profession in preparing to face this issue.
There is little doubt that the standard for determination of child custody and visitation will continue to be that of the best interests of the child. The issues will arise from the application of the best interests standard to the unique problems presented by a transsexual parent. The courts must take a serious look at the proper way to evaluate the effect that a parent's change of sex will have upon a child. The courts must look at each case on its own facts, weigh the expert testimony presented, evaluate the steps taken to minimize the harm which might befall the child, and replace judgment of the parent's lifestyle with an honest appraisal of their abilities as a parent and their ability to meet the physical, mental and emotional needs of the child. Only then will the court's determinations truly represent the "best interests of the child."
