For a transgender person contemplating parenthood, it is important to be aware of several legal issues that can arise relative to parental rights. For example, you may be considering surrogacy, adoption, or having children biologically, and these are all processes that carry their own unique set of legal implications. Additionally, in cases where parents come out as transgender or transition after having children, an ex-spouse or partner may use that parent’s gender identity as a basis to challenge, restrict, or deny child custody or visitation. While some parenting challenges have been ameliorated with the Supreme Court’s legalization of same-sex marriages for transgender parents who are married, obstacles may remain for those that are unmarried or in domestic partnerships. Often judges do not have a good understanding of gender identity issues, and they also have a small body of inconsistent case law to draw upon as guidance.
Legal Issues Related to Prospective Parenthood
If you are transgender and wish to become a parent, your options may include conceiving a child with your partner, adoption, surrogacy, or adopting your spouse or partner’s children from a past relationship. Each state follows different laws related to surrogacy and it is crucial to retain an attorney experienced in LGBTQ issues to determine whether surrogacy is permitted in your state and what the particular state rules are with respect to LGBTQ couples.
When a transgender parent will not be biologically related to a child, it is especially important for that parent to adopt or obtain a parentage judgment as soon as possible after the child is born. If you are unmarried, you should also create a parenting agreement that lays out each partner or spouse’s responsibilities and rights related to the children. An agreement with your partner will not make you a legal parent, but many courts have recognized that provisions allowing someone other than a biological parent to have custody or visitation may be enforceable in court.
This type of agreement may be useful to show your and your partner’s intentions.
For some same-sex couples in which one of the partners is transgender, it is possible for the couple to conceive and both be biologically related to their child. If these partners are legally married when they conceive the child, they both should be automatically presumed to be the legal parents of the child. This means that in many states, if they get a divorce, they will remain legal parents unless a court terminates one or both of their parental rights. However, even transgender parents who are biologically related to their children may face complicated parentage challenges when they use assisted reproduction or when they remain unmarried. For example, if you are a transgender woman who has a child with a partner to whom you’re not married by using your own sperm, under some state laws, you may be considered a donor that has no parental rights. You may be able to obviate potential challenges to your legal rights as a transgender parent by obtaining an adoption or parentage judgment. As a general rule, a final adoption cannot be challenged later by either of the parties to the adoption. However, you should be aware that one state, North Carolina, has invalidated a final adoption.
Parentage judgments are less common than adoptions. However, obtaining a parentage judgment can be a good option for non-biological and non-adoptive parents that are already recognized by their state laws as legal parents because they are married to the other parent. Even transgender biological parents that are named on their child’s birth certificate should adopt or get a parentage judgment to be on the safe side. All states are required by the Full Faith and Credit Clause of the federal Constitution to recognize court orders, such as adoptions and parentage judgments. This means that if you obtain either of these as an LGBTQ parent, it should be recognized in every state, even if that state’s own laws would not permit you to adopt.
Parental Fitness Challenges
Former spouses or a judge may use a transgender parent’s gender identity or transition as a basis for limiting or even denying custody or visitation, arguing that the parent’s gender identity will adversely affect a child’s well-being.
In most states, the court looks at the best interest of the child when making its first determination about custody and visitation during divorce or separation proceedings. Each state varies as to what factors a court can look at when it determines a child’s best interests. Often the factors include the quality of a child’s relationship with each parent, each parent’s willingness to support the child’s relationship with the other parent, the parent’s ability to look after a child’s needs, and the stability of home life with each of the parents. Where a child is considered mature, the child’s own wishes will also be considered.
Generally, courts follow the rule that it is important for a child to continue to have guidance from both parents following a divorce. This means that visitation is granted liberally unless a parent is considered a threat to the child’s emotional or physical wellbeing. Even in those cases, the court usually orders supervised visitation rather than severing a parent–child relationship.
If a parent wants to modify an existing custody order, the parent has to show there is a significant change in circumstances since a prior order and that the proposed modification is in the child’s best interests. Most courts have no state case law to draw upon when determining whether a parent’s transition or gender identity has any bearing upon a child’s best interest. However, case law where it does exist varies. The unpredictability and importance of child custody proceedings means that it is crucial to retain an experienced family lawyer to represent your interests in court. In many cases where the results were favorable to a transgender parent, the transgender parent’s legal team presented testimony from expert witnesses like psychologists and psychiatrists. This allowed the court to have more information than they would have had if they relied on the other parent’s experts about the child’s best interests.
If you’re transitioning, it can help to plan the transition with the guidance of a doctor or therapist. That person can also offer testimony on your behalf. Similarly, it can help to consult a child development expert, such as a child psychologist, about how to make any necessary adjustments as smooth and easy for your children as possible.
Cooperation between parents is also helpful in making sure your child’s adjustment is easy, and this may also influence a court when it looks at the child’s best interests.
Legal Parental Status
After the death of a spouse or other serious events, transgender parents may face challenges to their legal status as parents from their spouse’s relatives, particularly if they are not biologically related to the child and their status as parents was based on a marriage. In most cases, there is a presumption that the child of two parents is their child if they are married. This presumption may be especially vulnerable to challenge in the context of same-sex marriage in states that did not recognize same-sex marriage prior to the legalization of same-sex marriage. In many states the law is not well settled with regard to when that presumption applies, particularly when it comes to transgender parents. A transgender parent who is not married to their spouse may face greater challenges than one who has children while married to a spouse, because there are some states that only allow adoption or a parentage judgment where a couple is married.
However, a transgender parent can either adopt their spouse’s children or obtain a parentage judgment in order to make their legal status clearer. Either of these will provide protection if you travel to another state with variations in case law. A judgment of parentage is a court order, which often takes less time to get than an adoption. However, adoption is a method that is better understood. You should consult with a family law attorney who is experienced in LGBTQ issues when faced with big decisions about your family so that you can comply with any legal requirements governing issues including assisted reproduction, adoption, and parentage judgments.
What Are Some Of The Ways For LBGTQ To Adopt?
There are several ways to adopt; State and Public Agency Adoption, Agency Open Adoption, Open Independent Adoption and International Adoption. How do you know which one is right for you? When wanting to adopt a child, one of the things you can do is speak with other LBGTQ adoptive parents in your community. Ask them about their experiences and if they have any agency recommendations. In the past, those who chose an agency open adoption were met with some reluctance.
There was a type of hierarchy parental preference and clearly, they were not it.
Others who pursued an independent open adoption were met with rejection from those who didn’t want to deal with them because of their sexual orientation or gender identity. While those who tried international adoption found it extremely difficult to adopt. Many countries that have children up for adoption are very prejudiced when it comes to LGBTQ. There are explicit laws/policies or implicit cultural/societal codes that are completely against LGBTQ adoption. Many of the LGBTQ welcoming adoption agencies use extreme caution about representing LGBTQ people for international adoption. The process is challenging and they are met with increased barriers. But the good news now is that more birth parents are choosing same-sex couples over different sex couples. There has been an increase in adoption placement in the community through private agencies. Even though there have been challenges, people in the LBGTQ community have had success adopting children through each of these methods. Adopting a child is one of life’s most rewarding journeys. Keep in mind that everyone’s understanding of LGBTQ parents varies greatly. Each State has its own adoption law for the LGBTQ community. It is important that you research agencies thoroughly to make sure you are welcomed and that their protocol is compatible with your needs.
How does the Adoption Process Work?
The adoption process for transgender people with an unintended pregnancy works much the same as any other adoption.
Here’s how the steps typically look:
Step 2: Choose adoptive parents. The next step is to find a family.
Step 3: Get to know the adoptive family. Once you’ve found a family, it’s time to start getting to know them. Initially, you’ll start with a mediated phone call with your adoption specialist. But afterward, you can get to know each other through phone calls, emails, video calls and more. Of course, contact is entirely up to you. We understand that you might not be in a place where you’re comfortable talking to the family, and that’s perfectly okay.
Step 4: Prepare for the hospital. Before you prepare for the hospital stay, your specialist will help you find prenatal care to make sure you and your baby are doing okay. The next step to prepare for is the hospital stay for your transgender unintended pregnancy. We know that, right now, you’re feeling understandably anxious. Trying to receive access to medical care along while looking for a professional who is inclusive can be scary and overwhelming.
But with American Adoptions, you will have a compassionate ally by your side who will treat you with the respect you deserve. We will be here to advocate for you during every part of your hospital stay and will support you in any way we can. As a prospective birth parent, all of your medical expenses are covered. So, you don’t need to worry about paying for anything. You also have full control over making a hospital adoption plan. You can decide how much interaction you have with the adoptive parents, how much time you want to spend with the baby and more. Once the baby is born, you’ll usually need to wait between 48-72 hours before you can complete your adoption paperwork. How long you’ll have to wait depends on the state you live in. Your adoption specialist and your adoption attorney will help prepare you for the legal process of placing a child up for adoption.
Step 5: Continue your open adoption relationship. If you choose to, you can continue your relationship with the adoptive family and your baby. You can continue your relationship through phone calls, emails, pictures and letters and more. Please don’t forget that this doesn’t have to be the end of your relationship with your adoption specialist, too. If you ever need someone to talk to, they are always there to listen.
Things to Know About Adoption as a Transgender Parent
When it comes to transgender unintended pregnancy and adoption, there is some important information you should know about the legal paperwork. This is something that your adoption specialist will prepare you for in more detail before they send you any forms.
In some of the legal forms you’ll be sent, you may see phrases like “biological mother” or “her.” We know that this can be extremely frustrating when the laws are lagging behind where society is. But the wording on any paperwork you come across does not reflect the view of Utah Adoptions in any way. Reading paperwork that doesn’t reflect who you are can make planning an adoption for a transgender unintended pregnancy tricky. Your specialist will advocate for you when talking to your attorney and the hospital staff to use forms that reflect your identity as much as possible.
If you’re transgender and considering adoption, please know that an attorney is always ready to help and to listen. No matter what kind of situation you’re in, an attorney will to do everything to provide the information you need to make an informed decision.
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