Transgender Family Law

Transgender people face unique issues in parentage, custody, and divorce cases. Many transgender people are raising children or wish to do so. This article examines the main legal issues facing transgender people who become parents by giving birth or impregnating a partner, through assisted reproduction, through marriage, by raising a child, or through adoption. In the past, some courts viewed a parent's gender transition as a sufficient reason to terminate parental rights. Today, the law has shifted to provide much more security for transgender parents, though significant bias still remains, particularly in divorce and child custody cases. In addition, many states have not yet fully addressed how to determine the legal parentage of children born through assisted reproduction. I analyze the legal landscape for transgender parents and spouses and offer critical suggestions to ensure that transgender people are able to protect their families and their parental rights.     

Children Exposed to Domestic Violence: Making Trauma‐Informed Custody and Visitation Decisions

This article explores the risks for young children and the challenges for courts that emerge when parents who are victims or perpetrators of intimate partner violence seek court decisions on child visitation or custody matters. We focus particularly on children age five and younger, a group that is disproportionately represented in families affected by intimate partner violence, and especially vulnerable to its traumatic impact. We examine the literature on children's response to violence between their parents and the literature on parental alienation, a counter‐charge that may arise when one parent alleges violence as a reason to limit the other parent's access to the children. We look at challenges faced by both mental health professionals and courts involved in custody determinations and make policy recommendations to help courts make trauma‐informed decisions that best serve children.     

Socializing Distrust of the Justice System through the Family in Juvenile Delinquency Court

Juvenile delinquency courts in the United States generally require parents to attend all court hearings, but little is known about how parents' experiences in the court process affect their discussions of the justice system with their court‐involved children. Using multiperspectival and longitudinal data combining observations with interviews of parents and youth in two courts, this research finds that many parents discuss the legal process in negative terms with their children when parents are outside the presence of legal authorities. This research adds to the literature on legal socialization by examining how parents' perceptions of law and their experiences with the court become part of the socializing content provided by parents to their court‐involved children. Creating a more meaningful role for parents in the juvenile justice process may potentially lead to more positive discussions of the court process between parents and juvenile defendants.     

“I WANT MY MOMMIES”: THE CRY FOR MINI‐DOMAS TO RECOGNIZE THE BEST INTERESTS OF THE CHILDREN OF SAME‐SEX COUPLES*

In child custody cases, courts will look to the best interests of a child to maintain visitation/custody rights only with the child's biological parent, not third parties. However, with a same‐sex couple, it is inevitable that one parent will not be the biological parent. Thus, when that parent is in a mini‐DOMA state, where same‐sex couples from non‐mini‐DOMA states do not have to be recognized, that parent will be viewed as a third party and lose all visitation/custody rights if the couple separates. This note advocates that mini‐DOMAs allow both the biological and nonbiological parents of a same‐sex couple to have visitation/custody rights of their children if it would be in the best interest of the children to do so.     

THE COLLABORATIVE DIVORCE PROJECT: A Court-Based Intervention for Separating Parents with Young Children

The role the legal process of separation and divorce plays in affecting outcomes for young children and their families was examined in the Collaborative Divorce Project (CDP), an intervention designed to assist the parents of children six years old or younger as they begin the separation/divorce process (married and unmarried couples). Evaluation and outcome data were collected from 161 couples, their attorneys, teachers, and court records. In addition to positive evaluations from both parents, intervention families benefited through lower conflict, greater father involvement, and better outcomes for children than the control group. Attorneys and court records indicate that intervention families were more cooperative and were less likely to need custody evaluations and other costly services. The CDP illustrates how prevention programs can be located within the courts, can be systematically evaluated, and can aid in helping the legal system function optimally for families with young children.     

Transferring custody from birth parents to foster parents – an ambiguous matter

In this study, we analyse 32 district court decisions regarding custody transfers from the birth parents to the foster parents in Sweden. When a child has been in foster care for three years, in order to enhance stability for child, the local social welfare committee considers a transferral of custody to the foster parents following an application to the district court. Although all but one of the decisions in our study favoured a custody transfer, the courts acknowledge different reasons for this. Specifically, there is vagueness about whether or not functioning contact between the child and birth parents is a hindrance in custody transfer. Our findings stress the need for clarification in the law regarding the criteria for custody transfer in order to reach a more unified judgment. Furthermore, the district courts do not sufficiently acknowledge children’s views, and we suggest that children and young people should be made more visible in the decision-making process.     

MANDATED CUSTODY EVALUATIONS AND THE LIMITS OF JUDICIAL POWER

Kelly and Ramsey are clearly correct that a shift from a “how to” approach to custody evaluations to one that asks the more fundamental question “why” is long overdue. However, in addition to assessing the efficacy of custody evaluations (which Kelly and Ramsey propose), the legal system must also clarify the justification for imposing this extensive—and often expensive—intrusion into the privacy of parents. Three possible justifications for these intrusions are examined in this article: privilege, harm, and voluntariness. Is divorce a privilege, rather than a right, and can qualifications (including intrusive and expensive ones) be attached to requesting that privilege? Are custody evaluations instead justified as a means of avoiding harm to children? If a harm justification is asserted, exactly what harm do evaluations prevent, and how do they accomplish this harm avoidance? Finally, given the high value placed on parental cooperation by the family courts, is it simply too perilous for a parent to oppose a custody evaluation if one is suggested, either by the other parent or by the court? If so, are consents to custody evaluations truly voluntary?     

HOMOSEXUAL PARENTS

This article will first examine the approaches used by the courts in making custody decisions that involve homosexual parents; second it will review the assumptions commonly made about homosexuals and the effect homosexual parenting has on a child, and how these rationales are in fact used to justify a denial of custody or the imposition of restrictions on the homosexual parent; third, it will discuss what implications the courts' treatment of this issue has for legal practice.     

Gender in the Context of Same‐Sex Divorce and Relationship Dissolution

This article identifies ways that judges, lawyers, researchers, and policy makers may attend to the role of gender and gender dynamics facing same‐sex couples upon divorce or other relationship dissolution. When same‐sex couples marry, the legal system and society at large may project conceptions of gender onto same‐sex couples, often in a manner that conflicts with couples' intentions and practices. Gender and gender dynamics may affect the bases for dissolution, the financial aspects of dissolution, and the determination of child custody. The article also suggests directions for future research on the impact of gender on the dissolution of same‐sex relationships.     

HOW JUDGES DECIDE WHETHER SOCIAL PARENTS HAVE PARENTAL RIGHTS: A FIVE‐FACTOR TYPOLOGY

Courts have issued conflicting rulings regarding the rights (e.g., custody, visitation) and responsibilities (e.g., child support) of non‐biological gay parents. This analysis establishes a typology of five factors that most commonly influence judges' decisions. These factors include: interpretation of parenting statutes, legislative intent, parental intent, legal documents establishing parenthood, and the child's best interests. Despite these common themes, there is still much discrepancy among court rulings. Based on this analysis, there are steps parents can take to protect their legal rights and living arrangements. Finally, policy suggestions are offered for courts and lawmakers. These legal actors can take steps (e.g., clarifying statutes) that would provide certainty for families in case of parental separation or the biological parent's death.     

Minors,gender, and family: The discourses in the court system of traditional Buenos Aires

The article deals with public attitudes toward family responsibility in early-nineteenth-century Bienos Aires, particularly as revealed in lawsuits occasioned by disputes over the custody of minors. The care and education of minors was ordinarily entrusted to parents, but death, incapacity, licentious conduct, poverty or abandonment often resulted in the minor being removed from parents and taken by others into custody of guardians or institutions of public welfare. The majority of the analyzed lawsuits resulted from an attempt by parents to recover their authority over their children. The lawsuits indicate that the racial, gender, social, and generational “disadvantages” of plaintiffs did not a priori determine the judgement, but rather that arguments for family stability frequently were decisive when heard by sympathetic judges. Disadvantages persons thus frequently argued sucessfully about the meaning of the family, as protagonists in the legal system that otherwise often marginalized them.     

Advisability of substance abuse testing in parents who severely maltreat their children: the issue of drug testing before the juvenile/family courts

The authors discuss the advisability of juvenile courts requiring urine testing for parents who severely maltreat (abuse and/or neglect) their children. While urine testing for substance abuse is not sufficient to ensure adequate treatment, it is important as part of the overall substance abuse treatment in a selected group of parents. An objective of this article is to offer specific urine testing guidelines in the context of child maltreatment cases in which the court considers removing children from parental custody to state custody. Although potentially useful, urinalysis to detect abused substances has limitations and is appropriate only in well-defined situations. Effective treatment of the substance-abusing, child-maltreating parent must be multimodal, with treatment of substance abuse as the first and most important step.     

The Place for Custody Evaluations in Family Peacemaking

Custody evaluations can serve the dual purpose of providing neutral, objective information to the court while also contributing to the possibility of earlier settlement, which coincides with the therapeutic jurisprudence goal of more positive outcomes for children and families. Research suggests that most cases settle after custody evaluations. However, most of the literature is focused on the use of custody evaluations for litigation. Evaluators, attorneys, and mental health consultants can influence parents to focus more on children's needs and less on their conflict as they go through the evaluation process. This article urges family courts to develop processes and require professionals to learn skills needed for an interdisciplinary process to utilize evaluations in peacemaking.

Key Points for the Family Court Community:
• All custody evaluation processes should aim to reduce and/or shorten children's exposure to parental conflict.
• Evaluators, attorneys, and mental health professional consultants should use the evaluation process to influence parents to be more aware of their children's needs and less invested in their adversarial positions.
• Evaluators should learn to write and orally present information and state opinions with consideration of the parents themselves as consumers of the custody evaluation as well as the court.
• Attorneys and mental health professional consultants should help clients review the report, process their emotional reactions, and consider their options for settlement versus litigation in terms of emotional and financial costs to the family.
• Court processes should be developed to contain the time and cost of custody evaluations and provide dispute resolution after custody evaluations.

     

EXTENDING COMITY TO FOREIGN DECREES IN INTERNATIONAL CUSTODY DISPUTES BETWEEN PARENTS IN THE UNITED STATES AND ISLAMIC NATIONS

International custody disputes involving parents and children from Islamic nations and the United States have yielded a spectrum of interpretation of Islamic Shari'a law and the best interests of the child. The lack of a determinative treaty between the United States and all but one Islamic nation has led to an inconsistency of criterion in determining whether to extend comity to a custody decree from a court of an Islamic nation. The domestic law statutes, which determine jurisdiction in these matters, have provisions for international application and recognition of foreign custody decrees. The recognition of custody decrees from the courts of Islamic nations is contingent upon the satisfying of procedural and substantive thresholds. Focusing on the substantive, the author opines that American courts have a responsibility to understand certain aspects of the law, culture, and religion of Islam in order to accurately determine if the threshold has been meet.     

A study of families in high-conflict custody disputes: effects of psychiatric evaluation

Each year approximately 2.5 million people divorce, subjecting more than 1 million children to the losses of familial breakup. Hostility in families can be greatly exacerbated by parents' repeated failures to negotiate an altered lifestyle for the family which provides for the children's best interests. Interventions with highly conflictual parents and their children must necessarily address the interface between the mental health and legal professions. How families experience this process must be carefully studied in order to create new strategies for change, not only within the families, but also to facilitate the legal system's cooperation with mental health professionals. To date, little research has been conducted which assesses the efficacy of methods used by mental health professionals to intervene in contested child custody cases. This paper describes a program at the Isaac Ray Center, Inc., designed to help parents settle their custody disputes out of court. The article presents findings based on an 18-month follow-up questionnaire and court records for 45 parents. Data concerning custody settlement, relitigation, and parents' satisfaction with the evaluation process, their attorneys, and the custody outcome are presented and discussed.     

NEVER PAINT BY THE NUMBERS

As the debate continues on ways of thinking about access between separated and never-married parents and their very young children, the authors suggest a way that child custody evaluators can integrate this discussion into their evaluations. They conclude that evaluators must pay attention to family dynamics and all of the research when making specific recommendations to parents and the courts regarding the access and residential arrangements of very young children.     

Models and methods of cost-effective child custody evaluation

Child custody evaluations (CCEs) are often seen as a necessity by the legal system when caregivers cannot find a resolution to their child custody disputes. In many instances, these evaluations are quite costly for the litigants and cost can act as a barrier to equal access to justice. Affluent families are better able to access private evaluators while families with lesser means may encounter delays in receiving services or be unable to afford an evaluation at all. This can, in turn, prolong resolution of league disputes, increasing the emotional toll on families, and hamper courts in making decisions in the best interests of the children involved. This article examines models of providing CCEs outside of an isolated individual provider private practice format. It examines the benefits and considerations for lower-cost evaluations, while discussing how to maintain high quality services that adequately assess family systems. Broader issues that impact the courts and overall access to justice through offering cost effective evaluations are also discussed.     

Justice where art thou? and do we care?: Feminist perspectives on justice for women in Canada

This paper presents a discussion of contemporary feminist perspectives on gender and justice, with attention to selected examples of women's engagements with Canadian courts. The issues discussed include sexual assault, child custody, the female offender, pornography, and the position of First Nations women. The co-effects on women of capitalism and vestigal patricharchal hegemony, the privacy dotrine as exercised by the courts, and the question of sexspecific vs. gender-neutral legislation are emphasized. In particular, the author considers the usefulness of Gilligan's popularized theory of an ethic of justice countering an ethic of care in understanding the quality of women's involvements, or lack thereof, with the legal system.     

EMPOWERING CHILDREN IN MEDIATION

The available research in the mediation arena regarding child custody disputes indicates a lack of and growing need for effective intervention techniques. The authors present practicing mediators with a specific intervention model for interviewing, safeguarding, and empowering children in the process of mediating custody disputes. The mediation model utilizes a structured, strategic, and process-oriented approach with a family systems theoretical orientation and may be used in private or court-connected settings. The model presented here goes beyond the child-centered interview norm to the inclusion of the child in the process to assist parents in decision making. The model supports the current California statute under Family Code Section 3023, which states that "if a child is of sufficient age and capacity to reason so as to form an intelligent preference as to custody, the court shall consider and give due weight to the wishes of the child in making an award of custody or modification." The model does, however, maintain the position that the final decision continues to lie with the parents or the courts and not the child.     

UNDERSTANDING DISTRESSED FATHERS' PERCEPTIONS OF LEGAL AND RELATIONAL INEQUITIES POSTDIVORCE

This study examines distressed fathers' perceptions of inequity about their experiences related to the divorce process, custody, visitation, and child support. A content analysis of men's subjective responses to an open-ended survey question revealed dissatisfactions with the legal system and emotional hardships associated with divorce. Fathers expressed strong negative feelings about discrimination from the legal system. Relational inequities centered around the ex-wife and her perceived responsibility for problems with the courts and relationships with children.