The issues surrounding minors who are exploring gender transition and relabeling their identity are numerous when it comes to custody. Often these discussions involve political and religious arguments. There are ever-evolving public policy concerns despite seemingly little thought given to the actual interests of the children in question.
The purpose of this article is to address some best practices for divorcing parents and their gender non-conforming children. It will help parents navigate divorce and address issues concerning transgender and non-binary children in relation to custody.
Starting with the Basics
Reviewing and using the proper terms and vocabulary is an essential starting point with your child. Using the correct terms signals acceptance and kindness. Every parent should strive for this. However, it can be difficult when many terms are being introduced into these discussions. To start, the following definitions will provide a baseline:
Transgender or Trans – an adjective to describe someone whose gender identity differs from the sex assigned at birth. Transgender is also an umbrella term for the entire community. However, it is most often used to describe individuals who transition to the gender considered opposite of their gender assigned at birth (such as a trans woman or a trans man).
Non-Binary – a term used by those who do not describe themselves as fitting in solely with the category of male or female. This can include feeling like a combination of more than one gender (bigender), feeling like a completely different gender that doesn’t fit the binary system (third gender) feeling completely outside of the gender spectrum (agender), feeling like a different gender each day (genderfluid), or anything in between.
Gender transition – the process a person takes to bring themselves and/or their bodies into alignment with their gender identity. This may (but not always) include: informing friends and family, changing pronouns, changing identity and legal documents, and seeking medical interventions via medications and surgeries.
How These Affect High-Conflict Custody Cases
With some basic vocabulary addressed, it is no secret that divorce is stressful for parents and children who are encountering these themes in their daily lives. There seems to be several correlations between a child’s mental health concerns and their parents’ divorce. High conflict divorces have deep complications for minor children. High conflict typically refers to cases where the divorcing couple strongly disagree on how assets should be divided. It also includes how custody/visitation should be addressed. In a case where a child is transgender or gender non-conforming, conflict can escalate quite quickly.
Laws on Custody of Transgender Children in North Carolina
There are two types of child custody that every parent should be aware of – physical and legal. The physical component of child custody addresses with whom the child lives, when the child will visit with the other parent, how holiday and school schedules will be handled, etc. The legal part of child custody addresses which parent has authority over selecting school options – public, private, or home school. Legal custody also concerns religious matters – where and if a child should attend church, synagogue, or other. Medical care is included in the legal child custody category.
As you can probably imagine, these issues get more complicated when a transgender child is involved. If parents disagree about their child’s care it can lead to an all out custody war. This can include over big life decisions like medical transition or every day life like haircuts or clothes.
The current legal “trend” and popular default concept is that both parents should have as close to equal time as possible when addressing physical custody and that the parents have “joint” physical custody. An even more dominant philosophy is the legal notion that BOTH parents should jointly share legal custody. This means that both parents need to be in agreement on medical care and mental health care for their children.
Best Practices for When Having Custody of Transgender Children
The World Professional Association for Transgender Health (WPATH) is the current authority on transgender healthcare. It has issued and regularly updates a standard of care for how medical professionals and mental health experts can best care for their transgender patients. This is a great place to start if you’re unsure of how to best care for your transgender or gender non-conforming child. Here is some of what is covered.
Experimenting With Gender
Many children experiment with their gender. However, transgender children typically settle comfortably into trends and styles that aren’t normally associated with their gender assigned at birth. Their hair and clothing choices may change. The child may wish to use another name.
Although these steps are not permanent, it can be difficult for one or both parents to accept these choices. Experts suggest that parent(s) not overwhelm the child by discussing all the future implications. Rather, just listen and support the child in the present and current time. Using a different name that your child has asked you to call them does not necessitate any other changes down the road. It only proves that you care enough to support their autonomy over themselves.
Discussing Physical Transition
If a young person is committed to gender reassignment, they may request prescription medications as they get older. Gender reassignment surgery may be discussed. These measures will result in lifelong health decisions. They can impact reproductive health and shift the body in ways that are not easily reversible. However, for many transgender children and especially those who suffer with thoughts of self harm, these measures are often also life saving. These discussions and steps should be addressed as a child brings to light their desire to transition.
More advanced methods of transition like hormones or surgeries should be taken seriously by both parents when making decisions for minor children. All children should be thoroughly examined and treated by a mental health professional first. They can assess whether or not they are good candidate for these types of transition treatments. Professionals can also aid children with any other unseen mental health difficulties.
There is much evidence that non-binary and transgender youths endure significant mental health issues compared to their peers. This includes suicidal thoughts and attempts. Giving them the support of a licensed counselor trained in issues of gender identity can steer children in navigating these hardships. It can also help them decide rationally whether or not transition is right for them.
What If My Child’s Other Parent and I Disagree?
To restate care recommendations from above, many medical experts urge parents to just be supportive of where their child is currently when it comes to their care. Allow children to express themselves. Focus on the child’s immediate needs. It is noted that many parents tend to focus on future issues. Such thinking can result in anguish for your child, especially younger ones who do not understand their parents concerns. Experts encourage parents to focus on a child’s present and current needs and interests.
However, not every parent will agree with the people who have been studying this topic for decades. They don’t see it as custody of a transgender child because they don’t believe in the notion of people being transgender in the first place. They may force the child to conform to how they want them to dress and behave under their roof. This can cause undue hardship on the child, leaving them wanting to stay with their other parent full time.
Not all cases are this contentious. Sometimes both parents are supportive of their gender non-conforming children but have different ideas about should be allowed in regards to self expression. This is typical with raising any child while separated. Debates over when it’s ok for a child to get a piercing, dye their hair, or even how they dress can run rampant in any custody conflict.
Joint Legal Custody
If parents have joint legal custody, neither parent will then be allowed to consent to medical treatment without the other parent’s approval. Thus, this will result in a child not being able to undergo any procedures nor begin any prescribed treatment/medication intake.
There is acknowledgement that some children may perhaps be going through a stage/phrase wherein they are exploring gender identity. For some, the need to transition due to gender dysphoria can feel immediate and non-negotiable. But the bottom-line, without both parents’ approval for medical treatments, a child will not be able to receive any gender changing medical treatments. Thus, if one parent objects to gender reassignment, no medical treatment can proceed.
Children will not need their parents’ legal approval if they are 18 years old and a high school graduate. Once a child is legally an adult, the child can make the call on their own medical treatments. This includes medications and surgical procedures. And, once 18, the child can address issues like identification documents, birth certificates, and health insurance coverage on their own. For children who cannot make legal or medical changes yet but seem to immensely desire to do so, supporting them by affirming their gender and preferred name regardless of physical changes can bring at least some relief.
It’s not uncommon for divorcing parents to disagree on many issues. However, hopefully they will, together and separately, love and accept their children wherever that child is in their gender identification or transition journey.
For local resources, visit your county courthouse to learn about local rules on child custody.
North Carolina County Courthouse Information
| County | Address | Hours |
|---|---|---|
| Wake County | 316 Fayetteville St Raleigh NC 27601 | Monday: 8:30am-5:00pm Tuesday: 8:30am-5:00pm Wednesday: 8:30am-5:00pm Thursday: 8:30am-5:00pm Friday: 8:30am-5:00pm Saturday: Closed Sunday: Closed |
| Durham County | 510 S Dillard St Durham, NC 27701 | Monday: 8:30am-5:00pm Tuesday: 8:30am-5:00pm Wednesday: 8:30am-5:00pm Thursday: 8:30am-5:00pm Friday: 8:30am-5:00pm Saturday: Closed Sunday: Closed |
| Chatham County | 40 E Chatham St Pittsboro, NC 27312 | Monday: 8:30am-5:00pm Tuesday: 8:30am-5:00pm Wednesday: 8:30am-5:00pm Thursday: 8:30am-5:00pm Friday: 8:30am-5:00pm Saturday: Closed Sunday: Closed |
| Johnston County | 207 E Johnston St #209 Smithfield, NC 27577 | Monday: 8:00am-5:00pm Tuesday: 8:00am-5:00pm Wednesday: 8:00am-5:00pm Thursday: 8:00am-5:00pm Friday: 8:00am-5:00pm Saturday: Closed Sunday: Closed |
| Orange County | 106 E Margaret Ln Hillsborough, NC 27278 | Monday: 8:30am-5:00pm Tuesday: 8:30am-5:00pm Wednesday: 8:30am-5:00pm Thursday: 8:30am-5:00pm Friday: 8:30am-5:00pm Saturday: Closed Sunday: Closed |
If you need help navigating these issues with your child or co-parent, contact us or give us a call at 919-787-6668.
Lisa has practiced law since 1987 but has also been heavily involved in legal education and writing. As a teacher at Central Carolina Community College, she has been nominated twice for Instructor of the Year. She has taught paralegal and criminal justice courses, authored legal study guides and articles for national publications, edited numerous legal studies textbooks, and consulted with legal authors on several writing and educational projects. She is also a Board member and Committee Chair for the North Carolina State Bar Board of Paralegal Certification.
