Custody cases involving transgender and gender-expansive youth: Building toward best practices using interdisciplinary and child-centered perspectives

Abstract

There is an increasing number of high-conflict custody cases involving transgender and gender expansive (TGE) youth within family courts. The current sociopolitical climate, giving rise to an unprecedented amount of anti-transgender legislation, adds further complexity to decision-making and creates a contentious and unpredictable climate for TGE youth and affirming parents in family court. Although researchers in health, child development, and well-being have generated a robust body of evidence supporting the importance of affirming family and community for TGE youth, there remains a disconnect between evidence-based best practices and actual practice in the family courts. Courts are frequently diverted by the question of whether the child is TGE, or who is “to blame” for the child's TGE identity, rather than seeking to determine which parent is better able to meet the needs of the whole child—including, but not limited to, needs related to the child's gender identity and expression. Contested custody litigation provides an opportunity for family courts to prevent harm and promote the well-being of TGE youth and families by facilitating access to care, education, and support, which can promote more effective approaches to decision-making for complex cases involving TGE youth, and better establish post-separation success for families. This paper proposes a mental map that leverages the body of interdisciplinary research on gender identity development and expression coupled with the use of a child-centered approach, and provides strategies for applying the mental map, with the goal of improving family court practices for cases involving TGE youth.