from http://www.chicagotribune.com/news/printedition/chi-0209200392sep20(0,6387965).story?coll=chi%2Dprintmetro%2Dhed (outdated link)
By Bonnie Miller Rubin
Tribune staff reporter
September 20, 2002
Opening arguments were heard Thursday in a
highly unusual child custody case in Cook County Circuit Court
involving a 10-year-old boy, his mother who conceived him through
artificial insemination by a donor and a father who is a transgender
male.
The mother's attorney argues that because Illinois does not recognize
same-sex marriages, the 42-year-old father, who was born a female
but has been living as a male for 20 years, has no legal standing
to argue for custody.
But the father's lawyer contends
that her client is a man and the union is valid.
Cook County Public Guardian Patrick Murphy, who represents the
child, says what constitutes gender and marriage are irrelevant.
The only key issue is that the boy knows him, accepts him and
loves him as a parent.
It will fall to Judge Gerald Bender to sort out the case, which
is raising complicated--and some say new--issues for Illinois
courts.
It's doubtful that when the couple--whose names are not being
disclosed to shield the identity of their son--married in 1985
that they ever envisioned such confusion. The man first submitted
to hormone therapy at age 18, and the gender of the bride and
groom was not questioned by the minister who presided over their
ceremony and signed the marriage certificate.
A hysterectomy and oophorectomy--removal of the ovaries--followed
in 1991. Shortly after, his birth certificate was legally changed
to reflect his new male name and identity, said his lawyer, Susan
Goreczny.
In 1989, the couple entered into an artificial insemination agreement.
Both parties signed a contract agreeing that from the moment of
conception they would accept the role of parents. Their son was
born July 20, 1992, and both names are listed on the birth certificate,
according to court testimony.
But six years later, the couple separated, with the mother and
son moving in with her parents.
The father--who has visitation every other weekend and one night
on off-weeks--would like to be the custodial parent and, for the
first time, gender became paramount.
The father, who is burly, balding and was nattily attired in a
pin-striped suit, still has female genitalia, which according
to the mother's attorney, Burt Hochberg, makes their union null
and void.
"There is simply no marriage to dissolve," Hochberg
said. While the father may have a bond with the boy, "a transgender
individual has no standing to pursue custody."
Other states have granted custody and visitation rights in non-traditional
families, but it has usually involved gay and lesbian couples.
The transgender aspect, along with the contracts and the length
of the relationship, give this case an unusual twist.
And what happens on the 28th floor of the Daley Center could determine
whether these kinds of cases get heard in Illinois, experts said.
The mother, an office worker, has provided the child with a stable,
loving environment. Despite some earlier trouble with drugs, she
has been substance-free for six years, Hochberg said, and the
child is getting good grades and participates in school activities.
"He's doing better than just OK," said Hochberg, who
contends that there is no reason to disrupt the current arrangement.
But Murphy called the proceedings "hypocritical." After
10 years of a warm and loving relationship, the courts could not
now treat the father "like a total stranger," he argued.
"It doesn't matter if he's male or female, husband or wife,"
said Murphy. "What matters is that he's a parent ... and
you can't come in now and rip that apart. The only thing that
is important is that there's a 10-year-old who considers this
man his dad and wants to live with him."
"This is an unusual set of facts wrapped around the familiar
argument that the apparent father has no standing to claim custodial
rights," said Bruce Boyer, head of the ChildLaw Clinic at
Loyola University Chicago's Law School. What it shows, he said,
is that the "law still struggles to reconcile non-traditional
family arrangements with the psychological attachments of children."
The case continues Friday.
Copyright © 2002, Chicago Tribune
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