Gender identity emerges as a new front in custody battles; courts need expertise of mental health professionals in such cases, says Audra Petrolle, Rose Law Group family law attorney

By Maria Polletta | Arizona Republic

The divorced parents had joint custody of their three children and equal parenting time.

But soon after the mother began allowing their male child — identified in legal documents as “L.” — to wear a skirt to school, the father took his exwife to court.

Arguing that the mother, “through various acts, was pushing a female gender identification on L.,” the father asked for sole legal custody to make decisions about the child’s health care and schooling, according to court records.

He also requested that L. live with him full-time.

A family-court judge responded with sweeping injunctions, forbidding the mother to discuss gender-related issues at home; dress L. in female clothing; let the child have any “female oriented” toys; or refer to L. as “her,” “she” or a “girl.”

Though the injunctions were described as “temporary,” they remained in place for more than two years while the case was under review. When they were partially lifted in early 2016, they accompanied a ruling “that all three children’s best interests” would be served by granting the father sole legal custody.

A recent Arizona Appeals Court review of the case highlights the challenges of mediating custody battles between parents who differ on how to handle kids who may be transgender — a matter that LGBT experts say most U.S. family courts are poorly equipped to handle.


“Gender fluidity is not uncommon among children, and assigned gender may be incongruent with experienced gender. Compelling a child to adhere to gender normative social constructs and, similarly, penalizing a supportive parent for supporting a child’s gender identity exploration, arguably, does not serve the best interests of the child.

“In this case, the child actually began to exhibit thoughts of self-harm after being forced to conform to the child’s assigned gender. Because knowledge and understanding around gender identity is still evolving, courts may be better served by relying upon the expertise of mental health professionals when making determinations that impact a child’s ability to express gender identity. And, families going through these life events may benefit from working with a forensically-informed therapist experienced in dynamics between development and gender variance.”

~ Audra Petrolle

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April 2018