An Exploratory Study of Custody Challenges Experienced by Affirming Mothers of Transgender and Gender‐Nonconforming Children

• Author: Camellia Bellis,Katherine A. Kuvalanka,Abbie E. Goldberg,Jenifer K. McGuire
• DOI: http://doi.org/10.1111/fcre.12387
• Date: 01 January 2019
• Published date: 01 January 2019

ARTICLES

AN EXPLORATORY STUDY OF CUSTODY CHALLENGES

EXPERIENCED BY AFFIRMING MOTHERS OF TRANSGENDER AND

GENDER-NONCONFORMING CHILDREN

Katherine A. Kuvalanka, Camellia Bellis, Abbie E. Goldberg, and Jenifer K. McGuire

Family courts have lacked familiarity with evidence-based recommendations regarding the best interests of transgender and

gender-nonconforming (TGNC) children, resulting in some affirming parents losing physical and/or legal custody. This

exploratory, qualitative study with 10 affirming mothers of TGNC children who had experienced custody-related challenges

reported on salient themes, including “blame”for causing children’s gender nonconformity, coercion by ex-partners, bias in

the courts, negative impact on children, emotional and financial toll on participants, and the critical importance of adequate

resources. Findings indicate the need for better-educated family court professionals, as well as socioemotional support and

financial and legal assistance for affirming parents of TGNC children.

Key Points for the Family Court Community:

•Affirmation of gender identity and expression is critical to the well-being of transgender and gender-nonconforming

(TGNC) children and youth.

•Affirming parents of TGNC children and youth have lost custody of their children to nonaffirming parents.

•We describe the perspectives of 10 affirming mothers of TGNC children who had experienced custody-related chal-

lenges involving nonaffirming ex-partners, including these mothers’reports of how their TGNC children were nega-

tively impacted by these experiences.

•Study findings indicate a need for better-educated family court professionals and provision of financial and legal assis-

tance for affirming parents of TGNC children.

Keywords: Best Interest; Custody; Disnormativity; Divorce; Family Court; Transgender Child; Transphobia.

There is growing public awareness of transgender and gender-nonconforming (TGNC)

individuals—that is, people whose gender identities and/or gender expressions are different from

what is typically expected for their assigned sex at birth (Simmons & White, 2014). Research into

the lives of TGNC people has expanded and indicates that TGNC children and youth, especially in

the United States, are at an elevated risk for depressive symptoms and suicidal ideation (Aitken,

VanderLaan, Wasserman, Stojanovski, & Zucker, 2016; Perez-Brumer, Day, Russell, & Hatzenbueh-

ler, 2017); TGNC youth are more than twice as likely as non-TGNC youth to report having “seri-

ously considered”suicide (Perez-Brumer et al., 2017). One factor that has emerged as critically

important to the well-being of TGNC children and youth is family acceptance (Olson, Durwood,

DeMeules, & McLaughlin, 2016; Russell, Pollitt, Li, & Grossman, 2018; Ryan, Russell, Huebner,

Diaz, & Sanchez, 2010; Simons, Schrager, Clark, Belzer, & Olson, 2013). Family acceptance is the-

orized to serve as a buffer against the stigma, discrimination, and rejection that TGNC individuals

may face in schools and other community settings—experiences that threaten TGNC individuals’

well-being (Rood et al., 2016; Tebbe & Moradi, 2016).

Acceptance of TGNC children is not always unified within families. Parents may have divergent

responses to a child’s gender nonconformity (Kuvalanka, Weiner, & Mahan, 2014); one parent may

Corresponding: kuvalanka@miamioh.edu

FAMILY COURT REVIEW, Vol. 57 No. 1, January 2019 54–71

© 2019 Association of Family and Conciliation Courts

allow the child to express their gender relatively freely, while the other places restrictions on the

child’s gender expression. Such differences in parenting approaches can contribute to child custody

disputes involving TGNC children, whereby each parent may believe their approach to their child’s

gender expression is the correct one (Minter & Wald, 2012). A nonaffirming parent may also try to

capitalize on society’s traditional notions of gender and general lack of education regarding TGNC

children through the courts (Ehrensaft, 2011). Very little literature on such situations exists, with

the exception of law review articles that analyze court proceedings (Margolis, 2016; Perkiss, 2014;

Skougard, 2011). Such articles provide a glimpse into the lives of families that are experiencing

custody disputes involving TGNC children, but do not provide an in-depth understanding of fami-

lies’experiences of such conflicts or the dynamics leading up to and surrounding them or of the

impact that a family court’s response has on family members.

I. TGNC CHILDREN AND YOUTH AND FAMILY COURTS

Currently, many clinicians advocate that parents should provide a TGNC child with the “opportunity

to live in the gender that feels most real or comfortable to that child and to express that gender with

freedom from restriction, aspersion, or rejection”(Hidalgo et al., 2013, p. 286). The World Profes-

sional Association for Transgender Health has published standards of care (SOC) for gender dysphoria

since 1979 (then referred to as transsexualism) and is currently working from the seventh version of

the SOC published in 2012. The SOC advise the use of qualified clinicians with training in gender

identity to support families in providing accepting and nurturing responses and to provide assessment

for gender dysphoria. The SOC recommend supporting children in exploring gender identity, making

clear that interventions designed to steer a child’s gender identity or expression toward what is typically

expected for the child’s assigned sex at birth have not been effective and are no longer considered ethi-

cal (Coleman et al., 2012). The American Psychological Association and the National Association of

School Psychologists (2015) also “support affirmative interventions with transgender and gender

diverse children and adolescents that encourage self-exploration and self-acceptance rather than trying

to shift gender identity and gender expression in any specific direction.”This movement toward a

gender-affirming approach reflects changes in experts’understanding of the nature, cause, and implica-

tions of childhood gender nonconformity (Ehrensaft, 2011), as well as the positive findings of outcome

studies for childhood gender transitions (de Vries et al., 2014; Olson et al., 2016).

Experts have increasingly recognized that parenting has little to no impact on a child’s gender iden-

tity (Menvielle, 2004); yet, the “parenting is to blame”narrative—particularly for mothers—still exists

in relation to TGNC children (Ehrensaft, 2011; Hill & Menvielle, 2009; Johnson & Benson, 2014).

For example, for TGNC children who were assigned male at birth, “too much”mothering and “too lit-

tle”fathering was often thought to be the “culprit”(Hill & Menvielle, 2009, p. 246), reflecting bias

against those whose gender identity and/or expression is deemed to be different from expected norms.

Transphobia refers to a dislike or bias against those who have gender identities and expressions that

vary from an expected standard (i.e., gender-conforming, cisgender). Heteronormativity pervades West-

ern culture and is a valued framework that promotes and privileges, among other things, traditional

gender-related behaviors that differentiate “real”girls/women and “real”boys/men from “gender devi-

ants”(Oswald, Blume, & Marks, 2005). Cisnormativity is an ideology that perpetuates the belief that

there are only two genders and that assigned sex at birth is essentially tied to gender identity (Bauer

et al., 2009). These biases and ideologies have influenced, and are reflected in, family court custody

decisions involving the best interests of TGNC children (Minter & Wald, 2012; Perkiss, 2014).

A. JUDICIAL PRECEDENT

Custody disputes centered around whether, how, and when to affirm a child’s gender identity and

expression have begun to proceed through appellate courts. Five cases involving TGNC children

Kuvalanka et al./CUSTODY CHALLENGES INVOLVING TRANS CHILDREN 55