When a Colorado court is tasked with making a custody order for a minor child, the court is to base its orders on what is in the best interest of the child. While courts should not take transgender status into consideration regarding the best interests of a child, it would be naïve to think it never happens. Here are some ways you can protect yourself and your child.
If you are listed on the birth certificate as a dad, but your biological sex is female, does being on the birth certificate provide legal protection for you and your child? No. Having your name on the birth certificate is not sufficient to establish parentage, especially for transgender persons. A court will likely recognize you as transgender and biologically ‘female.’ Therefore, it is important you consult with family law attorneys who have an understanding of transgender legal issues.
The best course of action to protect your parental rights is through adoption or parentage judgment from a court. A parentage judgment establishes your legal responsibility for a child and can determine child support, custody and visitation (if needed). If you and your spouse/partner separate, you do not want to lose your child because the birth certificate was insufficient to establish your parental rights. Further, even though one state may recognize your parental rights does not mean other states will do the same absent a valid court order. Having a court order establishing your rights will protect you and your child should anything occur during your stay out of your home state.
If you are going through a divorce or separation and your former partner is trying to remove you from your child’s life; please consult an attorney who understands your transgender status and your rights as a parent. It is vital to protect your rights before initial custody orders are entered because once parenting time, visitation or custody is restricted, it becomes difficult to modify those orders.
There are states, including Colorado, which hold that if you are not a biological parent, but have taken care of a child or held the child out as your own, you may be able to obtain parental rights. In Colorado this is concept is known as ‘psychological parent.’ If a court determines that you are a psychological parent, you are entitled to all of the same legal rights and responsibilities as a biological parent. If you are transgender and raising a child who does not share your DNA, you may qualify for parental rights under the psychological parent doctrine. If you believe you may be a psychological parent or entitled to parental rights, please consult an attorney so you can better understand your rights and how to protect yourself and your child.
In the past twenty years, our societal understanding of gender and sexuality and its interplay in marriage and parenting has significantly evolved, but resistance and ignorance remain. A child’s love for their parent is based on the love, compassion, care and guidance they are provided; not gender, sexuality, or biology. Modern Family Law understands this and is here to help the LGBTQ and cisgendered communities understand and protect their rights.
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