When a Colorado court is tasked with making a custody order for a minor child, the court’s outcome is based on 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 clients can protect themselves and their 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 this individual as transgender and biologically ‘female.’ Therefore, it is important they consult with family law attorneys who have an understanding of transgender legal issues.
The best course of action to protect parental rights is through an 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 state.
If the opposing party 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. Once parenting time, visitation or custody is restricted, it becomes difficult to modify those orders.
There are states, including Colorado, which held that if you are not a biological parent, but have taken care of a child as your own, you may be able to obtain parental rights. In Colorado, this concept is known as “psychological parent”. When a court determines that you are a psychological parent, you are entitled to all of the same legal rights as a biological parent. As a transgender raising a child who does not share your DNA, you can qualify for parental rights under the psychological parent doctrine. Please consult an attorney if you believe you may be a psychological parent or entitled to parental rights, so you can better understand and protect your rights.
In the past twenty years, our societal understanding of gender and sexuality and its interplay in marriage and parenting has significantly evolved, ignorance remains. 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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