Transgender Care & Custody When You and Your Ex Disagree About Your Child's Gender-Affirming Care

Posted by Joseph Lento | Jun 23, 2023 | 0 Comments

Transgender rights have become a hot-button topic in state legislatures across the country, with at least 22 states passing or targeting some type of anti-trans legislation. In contrast, others have passed laws intended to protect these children.

So, it's no surprise that parents living in the same home may not agree on their child's decision to seek gender-affirming care. Perhaps one parent believes the child is transgender and wants to support them, while the other does not believe them or thinks the child is too young to consider life-altering medical treatments and procedures. When the parents of a transgender or transitioning child are separated or divorced, the issue can muddy the waters of their child custody agreements.

What Is Gender-Affirming Care?

The World Health Organization defines gender-affirming care as a supportive form of healthcare that encompasses an array of social, psychological, behavioral, and medical interventions "designed to support and affirm an individual's gender identity" when it conflicts with the gender they were assigned at birth. Gender-affirming interventions may involve hormone therapy, "bottom" surgery, "top" surgery, facial plastic surgery, speech therapy, and psychiatric services, to name a few.

What Happens When Parents Disagree on a Child's Healthcare?

Generally, Pennsylvania law requires a parent's or guardian's consent for any type of medical treatment for any child younger than 18. If parents are divorced but have joint custody, they must make healthcare decisions on their child's behalf jointly, including decisions regarding gender transitioning. Neither parent can allow or disallow their child to seek gender-affirming care without the other's consent. So, until an agreement is reached between the two, their child cannot seek any form of gender-transitioning treatment.

Can a Judge Decide?

Parents who cannot agree on medical treatment for their child have often brought their issue to court for resolution. For example, during the COVID pandemic, many couples in Pennsylvania and across the U.S. who disagreed on whether to vaccinate their child against the virus let the court decide. In cases of medical care, courts generally rule that the parties should follow their healthcare provider's recommendations.

The great divide between states on transgender care, however, poses new complications. For example, let's say a Pennsylvania couple divorces, and the court awards the mother full custody of their transgender child. She has the sole authority to allow her child to seek gender-affirming care, and the child begins receiving hormone therapy. The father vehemently opposes his child's transitioning. Theoretically, he could move to Florida, where Gov. Ron DeSantis signed new legislation that views gender-affirming care as a form of "self-harm." Under the law, Florida judges can modify custody agreements from another state if a child is undergoing transgender care. So, the father could ask a Florida judge to grant him custody of the child.

It's too early to tell how custody disputes regarding gender-affirming care will play out, especially cases that cross state lines. But with more states introducing and passing laws strengthening their stances on either side of the issue, there's no doubt it'll remain a hot topic in family courts nationwide.

Talk With a Family Law Attorney at The LLF Law Firm

If you or a loved one is involved in matters of Family Law in Pennsylvania, contact LLF Law Firm and our Family Law Team at 888.535.3686 or online today.

About the Author

Joseph Lento

"I pride myself on having heart and driving hard to get results!" Attorney Joseph D. Lento is a veteran of one of the nation's busiest family courts with nearly 20 years' experience passionately helping families. By day, he worked in the trenches of family court, and at night, he studied the law. He helped countless families while working at family court, and he went on to become an attorney, dedicating his law practice to continuing the work he started years earlier. Mr. Lento's experience both behind the scenes and on the front lines allows him to understand a client's family law matter from all angles, and allows him to find and employ the most effective strategies to get favorable outcomes for any client. Joseph D. Lento is licensed in Pennsylvania New Jersey, and New York, and is admitted pro hac vice as needed nationwide. In the courtroom and in life, attorney Joseph D. Lento stands up when the bell rings!


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