LGBTQ Children & Custody

A recent article in The Atlantic brings to mind the issues that may require an attorney (and the courts) to think differently about custody cases involving LGBTQ children.

There are physical/residential custody implications if a parent and child are estranged or, to a lesser degree, a parent is not supportive or in denial. This requires showing the impact of time spent together on the child’s best interests. For example, whether a child’s living two separate lives in each parent’s home is detrimental to the child.

There are legal custody implications. Therapy and selection of therapist. Medical providers if a child is interested in gender reassignment and hormone therapy and decision-making about appropriateness of embarking on this path and when. Disclosure and consultation between parents – or not – along the way, especially if one parent is supportive and the other is not.

Also, there are issues that do not neatly fall within custody. Such as a child’s name and whether to seek a formal name change. Choice of a child’s friends and dating partners. What clothes parents purchase and a child wears. How a child refers to him- or herself gender identity-wise and how that translates to registration forms, for example.

Consider also issues of confidentiality. If as a parent’s attorney, one’s client knows information about a child that the other does not. The attorney must weigh confidentiality against relevance, whether disclosure is required, and if so how.

Likewise, an LGBTQ child client may disclose information to a court-appointed child’s counsel (Best Interests, Child Privilege, or Child Advocate) that neither parent knows. However, such confidentiality is qualified, because the attorney can disclose otherwise confidential information if necessary to carry out the representation. Is disclosure required? If disclosure occurs, how should this happen to protect the child client? If disclosure does not occur, how can the attorney navigate the nuances of maintaining confidentiality while pursuing an outcome suiting the child client’s undisclosed best interests?

These cases still involve the broad custody issues of where a child lives, when a child spends time with both parents, and how decisions are made. However, we need to think more broadly – and outside our own life experience – about what the “best interests” of LGBTQ children really means.

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