Under the guise of the "best interest of the child," courts have denied biological and legal parents both custody and visitation rights over their children because these parents were either in the process of changing, or had completed a change, in their sexual and/or gender identity. One court has even terminated the parent-child relationship because of a parent's transgender status. This article proposes that a parent's transgender status does not render that parent per se unfit for custody and/or visitation. Rather, a parent's gender change should be used as merely one factor within the nexus test used by the court for creating a custody and visitation arrangement that is in the best interest of the child.
Part II introduces an overview of the legal issues facing transgender individuals and specifically identifies the problems encountered in child custody cases. Several trans gender case examples are also discussed in the overview. Part III examines the historical development of the "best interest of the child" standard, as well as the de-evolution of gender preference in child custody cases. Part IV critiques the Anglo-American cultural bias in favor of binary genderism and distinguishes the terms sex, gender, and sexual orientation. Although medical and scientific data prove that sexual identity, gender identity, and sexual orientation are separate but related categories, the law remains behind in its recognition of this data, Part IV demonstrates the historical acceptance of gender multiplicity in other cultures, such as India, the Dominican Republic, and the Native American Indian culture, and discusses several interna-tional cases involving transgender rights.
Part V analyzes judicial decisions denying custody to trans-gender parents and proposes that a parent's trans gender status should not operate as a per se bar to an award of child custody. Part V also analyzes judicial decisions that have used the nexus test to award custody to gay, lesbian, and transgender parents. Part VI discusses the evolving social acceptance of trans gender parents and presents data relating to the emotional well-being of their children. This article concludes that courts should not deny a transgender parent custody of his or her children absent evidence of that parent's unfitness.
43 Santa Clara L. Rev. 649 (2003)