Custody Disputes Involving Transgender Children
In recent years the number of teenagers identifying as transgender has nearly doubled in the United States. Yearly surveys conducted by the C.D.C. show that the teenage transgender community is growing at a much faster rate than older generations. New York State has the highest disparity in the country, with 3% of 13-17-year-olds and only .5% of adults identifying as transgender.[1] These results indicate that the current generation of teenagers, particularly in New York State, are much more comfortable with nonconforming gender identities than their parents. As these statistics rise, so does the number of high-conflict divorce and family court matters that involve disputes between parents over the social, medical, and mental health treatment of their transgender, nonbinary, and gender non-conforming children.
Custody disputes involving parents who disagree on the acceptance and care of their transgender child are complex and emotional. A court must consider what arrangement is in the best interest of the child given the totality of the circumstances when determining custody. [2] A parent’s ability to relate, accept, and make appropriate health care decisions for their transgender child becomes germane to the various factors scrutinized by the court in making a best interest determination. Surprisingly, there is very little case law directly addressing custody of transgender children. However, it is not necessary because the issues arising in these cases have been addressed previously, even if the legal analysis was not specific to transgender children, such as the parent's ability to provide for the child’s emotional development[3].
New York State is very supportive of the transgender community. Our state provides “gender identity or expression” equal opportunity as a civil right and has included the class in human rights and hate crimes statutes.[4] New York State also passed a bill in 2023 determining that gender-affirming healthcare cannot be classified as child abuse. That bill also prevents officials and law enforcement from complying with laws of other states that would remove a transgender child from the custody of a parent providing gender-affirming care or cooperating in investigations against parents and providers offering such care. [5] This legislation was necessary because 22 states have laws restricting the gender-affirming care available to minors.
Just as our country is divided, it is common for parents in these types of litigations to disagree over gender-affirming treatment. Often, the parents have little knowledge of the available care and tend to misunderstand its long-term effects as well as the consequences of not receiving care. Virtually every major medical association in the country, including the American Academy of Pediatrics, recommends gender-affirming care.[6] The World Professional Association for Transgender Health (WPATH) has created standards of care for gender-affirming treatment.[7] The WPATH Standards of Care is a highly informative resource that explains what it means to be transgender as well as age-appropriate mental health and medical recommendations.
The mental health of a transgender child should be the paramount concern in these types of custody litigations and the dominant focus of the best interest analysis. Transgender people have higher rates of depression, anxiety, eating disorders, self-harm, and suicide. A national survey in 2021 on LGBTQ youth by the Trevor Project reported 52% of transgender youth seriously considered suicide in the last year, and 20% attempted suicide.[8] These tragic statistics underscore how imperative it is for young people dealing with gender dysphoria or nonconformity to receive the appropriate support, particularly when they are also dealing with their parent’s divorce or a family litigation. The siblings of transgender children often have their own anxieties and struggles as it relates to their transitioning siblings that tend to be overlooked. Parents in this type of custody litigation may not be able to place the needs of their children above their own because they have not dealt with their anxieties and biases. It is advisable that every family member receive some support and counseling while a child is transitioning. The following is a list of some of the resources available to transgender youth and their families in Suffolk County.
Parents of Transgender and Gender Diverse Children, offered through Stony Brook’s Mind Body Clinical Research Center, (631) 632-8657
This program offers a FREE 14-week support group, which provides educational material and support for parents, caregivers, and adult family members of transgender and gender-diverse children.
Talking About Gender (TAG), offered through Stony Brook. (631) 632-2428
Support group for persons ages 13-19 via telehealth
Pride for Youth, www.liccpfy.org
Provides programs and services for the LGBTQ community, including individual and family counseling for people under the age of 30.
LGBT Network, www.lgbtnetwork.org/programs-services
Offers free mental health services for persons under 21 and their families.
Locations in Bayshore, Hauppauge, Bridgehampton, and Sag Harbor.
The Trevor Project, www.thetrevorproject.org, (866) 488-7386
Leading National Organization providing 24/7 crisis intervention and suicide prevention services to LGBTQ persons under 25.
[1] NYtimes.com/2022/06/10/science/transgender-teenagers-national-survey.html
[2] Pierre v. Dal, 27 N.Y.S.3d 317 (App. Div. 2d Dep’t 2016)
[3] Mohen v. Mohen, 53A.D.3d 471, 862 N.Y.S 2d 75 (2d Dep’t 2008)
[4] NYS Senate Bill S1047 (2019-2020 legislative session)
[5] NYS Senate Bill S2475B (2023-24 legislative session)
[6] The statements of 30 medical associations can be found at https://transhealthproject.org/resources/medical-organization-statements/
[7] WPATH Standards of Care for the Health of Transsexual, Transgender and Gender Nonconforming People www.wpath.org/media/cms/Documents/SOC%20v7/SOC%20V7_English2012.pdf?_t=1613669341
[8] Thetrevorproject.org
