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In the Child's Best Interests?
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At the end of February, the worldwide transgender community was elated by the news that a Florida court had recognized the rights of a transgender dad to sue for custody of his children, and that the court actually ruled in his favor by awarding custody to Michael Kantaras. This hard-fought win came after years of appallingly bad decisions, in Texas and Kansas, in which the marriages of two transgender women were invalidated because the court claimed they were not women. The Florida case achieved notoriety because Court TV carried it live during early months of 2002. And after weighing all the evidence for almost a year, the court came to the only reasonable conclusion that it could come to... that Michael Kantaras is a man, was married to his former wife, and it was in the best interests of the children to give him custody. Last year, a Cook County court was presented with a similar case. A transgender man had married his wife in 1985, had entered into a contract to raise their child conceived by artificial insemination, had subsequently divorced his wife, and was suing for custody of their 11-year-old son. The father raised the child, and the boy loves his father and wants to live with him. Yet last month Judge Gerald Bender, working with facts very much like the Florida case, not only awarded custody of the child to the mother, but also invalidated both the man's gender and his marriage. Judge Bender declared that there "was no marriage to dissolve" because Illinois law prohibits same-sex marriages. What's the difference between these cases? Why has Illinois joined the ranks of the great progressive states of Texas and Kansas? What happened in Illinois? For one thing, if you read the local newspapers about the Cook County case, you were probably left with the impression that the father had somehow not met the standard qualifications for gender change within the State of Illinois. In that case, you may have concluded that the judge did make a correct decision in ruling marriage invalid. I myself came to that conclusion based on the facts as presented in the papers. But it was a wrong conclusion. It may be true that the father had not completed surgery at the time of the marriage, and did not have the legal documentation confirming that his gender is male. But he was hormonally male at the time of marriage, and had been hormonally male since he was a teenager. And he subsequently had surgery and had his legal documentation changed to male. Also, I recently found out that there is a little known provision in marriage law in Illinois that states something to the effect that if a marriage is found to be invalid because of some legal impediment, and if that impediment is later removed, then the marriage is declared to be a legally sanctioned marriage. In this case, the minor impediment was not having legal documentation stating the father's gender, and it was resolved when he had surgery and obtained the corrected documents. In addition, there was considerable discussion in the papers about the completeness of the surgery. The father's genital configuration was a major consideration on the part of the judge when he made his ruling on the validity of the marriage. In doing so, the judge has gone against the prevailing laws and standards that allow a transgender man to obtain legal documentation with his correct gender after completing the same surgical procedures that the trans dad had completed. There are dozens if not hundreds of transgender men walking around Illinois with documentation that states they are male after completing the same surgeries. Is Judge Bender ready to say that they are not men? Is Judge Bender willing to invalidate their marriages as well? Is Judge Bender able to ruin the lives of these men as easily as he was able to ruin the life of the transgender dad in his courtroom? Furthermore, it is ridiculous that the father's genital configuration was a consideration on the part of the judge when he made his ruling on child custody. What possible difference would it make in one's ability to be a good parent whether one has genitals of one configuration or another? I thought that custody hearings were about deciding in the best interests of the child. On the one hand we have a mother who has had a long and complex history with substance abuse, but has the "correct" genitals. And on the other we have a loving father, with a child who loves him and wants to live with him, whose name is on the child's birth certificate as the father... but with the "incorrect" genitals. Where are the child's best interests in this picture? It is so glaringly obvious in this case that the child's best interests were trashed because of Judge Bender's bias against the transgender father. The judge repeatedly referred to the father with the wrong pronouns, and treated him with the utmost disrespect. The father's gender should not have been even a consideration in this custody battle, but it turned out to be the only consideration. I don't know how the decision would have been rendered if the father had not been transgender. More often than not, the ruling goes in favor of the mother. But there are enough nuances in this case that it is quite possible that the father would have been granted primary custody if gender had not been an issue. It is very likely that this custody case will be appealed. All we would ask is that the father get a fair hearing... one in which the child's best interests really are the first, foremost, and only consideration in the decision. Miranda Stevens-Miller welcomes your comments at MirandaSt1@aol.com |
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