Does being transgender affect divorce? Ever since the U.S. Supreme Court recognized the right of same gender couples to marry in Obergefell v. Hodges, one might assume gender is of little or no significance in a divorce. After all, if one can marry, certainly one ought to be able to divorce. The idea of a family member being transgender, however, has broader implications.
What does it mean to be transgender? According to a variety of sources, a transgender person does not identify himself or herself with the gender assigned at birth, i.e. a male identifies as a female and vice versa. From a family law perspective, one being transgender should not matter in terms of whether a couple may marry or divorce. More likely issues arise when a child of a divorcing couple is transgender.
By statute in Florida, parents who separate in the context of divorce or a paternity action have a strong presumption favoring “shared parental responsibility.” Contrary to what many people think, the phrase refers to a method of decision making between parents for their child or children. Shared parental responsibility is unrelated to where the child or children will reside which is commonly called custody, visitation, primary residence, or timesharing. Instead, shared parental responsibility means that, although parents might reside in different households, neither person is any less the parent of his or her child or children. Thus, Florida has a strong presumption favoring each parent consulting and conferring with each other about major decisions affecting the child’s or children’s health, education, and upbringing. Ideally, the parents will make joint decisions for the best interests of their child or children.
Undoubtedly, coparents do not always agree on what is best for their child or children. One might imagine that divorcing or separated parents of a transgender child might not only disagree about decisions related to their child’s transgender issues, but also might vehemently disagree. These issues include such things as whether the child will be called by a preferred name for his or her gender identity, compared to his or her given name, or other issues such as a school preference or use of gender identified locker rooms and bathrooms at school. Parents also may disagree about more fundamental issues regarding a transgender child, such as the age at which transgender identification should be acknowledged, whether it should be accepted, or whether, when, and how to use psychotherapy or gender conversion. The possibilities are limitless.
When parents do not agree on a joint decisions of significance for their child or children, either or both parents might initiate the court’s intervention. Typically, a parent would file a motion in a pending or post-judgment case asking the court to resolve one or several issues. Depending on a number of circumstances, the court might order alternative dispute resolution or conduct a hearing. Common forms of alternative dispute resolution of these types of cases are mediation or parenting coordination. Ultimately, both parents must choose whether to make the decision themselves or have a judge make the decision.
