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. Key Points for the Family Court Community: There is no evidence that a person's transgender status affects his/ her ability to be a good parent. A transgender person may become a parent by giving birth or impregnating a partner, through assisted reproduction, through marriage, by raising a child, or through adoption. Increasingly, transgender people are counseled about their ability to preserve their reproductive capacity by preserving either sperm or eggs before undergoing medical treatments for gender transition. Many transgender people use assisted reproduction to have children. The use of surrogacy is especially important for some transgender women who are partnered with or married to a man. Transgender people who wish to use surrogacy to have a child should understand the law in their state and follow any legal requirements to ensure that surrogacy agreements will be upheld. For all transgender parents using assisted reproduction, it is important to enter into a written agreement with the other parent, if any, and with the donor or surrogate, if any, and to sign medical or legal consent forms recognizing their intent to be a parent. Transgender parents still face considerable bias in child custody cases. Even in our modern era of no-fault divorce, a court may view a transgender spouse as culpable simply for coming out as a transgender person and that perception may lead to serious adverse consequences in the divorce. Many judges continue to view a spouse's decision to undergo a gender transition as a legitimate reason to award the other spouse more marital property or spousal support. Courts also frequently disregard the negative economic impact of transitioning for many transgender people, ordering a transgender parent or spouse to pay support based on their pretransition income rather than their current earning power, which may be greatly reduced. Alternative dispute resolution may be particularly beneficial for transgender clients. As a result of the Supreme Court's ruling in Obergefell v. Hodges, transgender spouses no longer must fear that their marriages may be nullified by a court or that their parental rights may be stripped away.
