Custody battles over transgender children stress a need for more knowledge and awareness

Trans Kids
Trans Kids Photo: Trans*Kids Project

James M. Loy, Miami University

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As issues surrounding trans and gender non-conforming individuals gain more and more attention on a national stage, many cultural conversations are being sparked on numerous fronts. Most prominently, perhaps, has been the ongoing and divisive debate surrounding the right to use public restrooms.

But arguments are also raging across classrooms, on capitol steps, and even inside family courts, where custody battles are emphasizing a dire need for more awareness and expertise throughout nearly every level of the court system.

Trans Kids“It feels like transgender issues in the family courts now are where we were in the 1970s and 80s with gay and lesbian parents,” says Katherine Kuvalanka, an associate professor of family science and social work in Miami University’s College of Education, Health and Society.

Custody battles are rarely a pleasant affair. But for some parents of transgender children they can also represent a fight against a swath of institutional ignorance. One that can often work directly against the best interests of the very children the system is purportedly trying to help.

“A lot of people don’t realize how much power family court judges have in making custody decisions,” says Kuvalanka. “So we have some parents who are losing custody or are being told by the courts to police their kid’s gender when a lot of these courts -- the judges, the attorneys, the child custody evaluators, some of the court appointed therapists -- many of them are not educated at all in regard to gender non-conformity in childhood.”

As a leading researcher in her field, Kuvalanka was recently cited by the American Sociological Association in a letter to President Trump urging him to reconsider the newly revoked federal guidelines allowing transgender students to use sex-segregated school restrooms.

Even more recently, she and her colleagues have also just completed the first phase of a massive longitudinal study, which focuses on the families of trans and gender non-conformity children. This study, one of the first of its kind, has already found that parental and social affirmation of a child’s expressed gender identity is a crucial part of boosting the emotional and psychological wellbeing of these children.

But alongside these issues of wellbeing, her research -- conducted with researchers from Arizona State University, Clark University, University of Minnesota, and the National Center for Lesbian Rights -- has also begun to look at gender affirming parents who are also dealing with custody battles, how these cases can affect the lives of the children caught in the middle, and the distressing outcomes that have occurred.

“We have had cases where one parent is saying that the other parent is mentally ill, that she is causing the kid to be transgender and they actually point to Munchausen syndrome by proxy,” Kuvalanka says. “So they are looking at being transgender as being sick.”Dr. Kate Kuvalanka Dr. Kate Kuvalanka

In such cases, the courts have sometimes used emergency injunctions to take custody away from the gender affirming parent and award it to the other, non-gender affirming parent.

“And it causes extreme distress, as you can imagine, for the kids,” says Kuvalanka.

Even in cases where gender affirming parents are allowed to maintain custody, some have fallen victim to a presumed culture of heteronormativity that still takes precedence as the baseline assumption by most courts. In some of these situations, the courts have ordered a parent to, for example, remove all pink colors, all toys typically associated with girls, and to stop using the pronoun preferred by the transgender child.

And even in less extreme cases, many trans and gender non-conforming children are still often forced to bounce back and forth between two different households, where one is gender affirming but the other is not.

“What we are finding is that a lot of people just don’t know that this is happening,” Kuvalanka explains. “And we don’t have enough attorneys who know how to deal with it. And we don’t have enough experts to come in and educate the courts. So there is a lot of education that needs to happen right now. Because they are heartbreaking cases.”

It is true that our culture is changing. People are becoming more aware of this issue and more parents are starting to listen to children who do express some level of gender non-conformity.

But many, many challenges still remain. And the current lack of education, understanding, and awareness across the family court system is a prime example.

“We need more experts. We need more clinicians. We need more court professionals in general to just be aware of this,” Kuvalanka says. “And to know that it is not something that the parents are causing. That it is not an illness.”