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Will I Lose Custody of My Children If I’m Transgender?

Across the United States, parents who have transitioned are having the gender change used by their ex as a basis to restrict or deny custody or visitation.

New York has gender-neutral child custody laws, but that does not prevent an ex from trying to use gender identity as an issue in a custody battle. Having the right attorney to advocate for you is important. At the Law Office of Dennis R. Vetrano, Jr., LLC, we have a comprehensive understanding of family law and the rights of transgender and other LGBTQ+ parents.

Basics of Child Custody

When a custody dispute goes to court, a judge is required by law to make custody decisions based on the best interests of the child. The court evaluates each parent’s income, relationship with the child, ability to care for the child’s needs, and other factors. There is a presumption that the child should spend significant and valuable time with each parent. Only when a parent is a danger to the child will the court require supervised visitation. In extreme cases, the parent can be denied visitation altogether.

High-Conflict Divorces and Trans Custody

Contested, angry divorces can bring out the worse in people. Contentious divorces have the highest probability of shady tactics like false abuse accusations, dissipating or hiding marital assets, parental alienation, and claims a spouse’s transition negatively impacts the children.

Part of the problem is there is little case law for courts to draw upon when making custody decisions where a parental fitness is questioned because of the transition or gender identity. Some judges may unknowingly fall back on stereotypes and unconscious bias. An aggressive legal strategy can counteract any bogus claims brought by the other parent and clearly articulate on behalf of the trans parent.

New York Bill Regarding Transgender Parents

Senate Bill S996, introduced in January 2021, provides that the judge shall not prohibit a parent from undergoing gender reassignment. The New York legislation also prevents a judge from considering a party's sex, sexual orientation, gender identity, or gender expression when determining the best interests of the child. The bill has passed the Senate and referred to the Judiciary Committee.

“No parent should have to worry about losing custody of their children because of their gender identity. Sex, sexual orientation, and gender expression, or identity have no bearing on whether someone is a good parent or not, and with the passage of this law we make it clear that these are inappropriate factors to consider when determining the best interest of a child,” said Senator Brad Hoylman, the bill’s sponsor.

A wide range of studies has come to the same conclusion that the fact a parent is transgender (or gay, lesbian, bisexual) does not increase the chances that their child will also be LGBTQ+.

Smart Legal Counsel for Tough Custody Cases

Most divorces, including those involving a transgender parent, never go to court. The spouses can work out their divorce terms with the help of their attorneys. However, there are cases when going to court is the only answer.

Our attorneys at the Law Office of Dennis R. Vetrano, Jr. LLC, have the know-how and talent to thoughtfully explain every detail in the case. When needed, we bring in expert testimony from child counselors, psychologists, psychiatrists, and other professionals.

Learn more about our child custody services in a consultation. Schedule by contacting us online or calling (845) 605-4330.