http://www.chicagotribune.com/news/local/northshore/chi-0304090232apr09,1,338030.story
By Mickey Ciokajlo and Bonnie Miller Rubin
Tribune staff reporters
April 9, 2003
A Cook County judge Tuesday denied custody of a boy to a transgender
male, ruling that same sex marriages are illegal in Illinois and
so the "father" had no legal standing to seek custody.
In a 13-page opinion allowing the father continued visitation,
Judge Gerald Bender found that the 10-year-old boy has established
a bond with his father, who was born a female and is living as
a man.
In denying the father custody, Bender cited case law that says
a child's best interest should be the controlling factor in determining
visitation rights.
Cook County Public Guardian Patrick Murphy, who represented the
child, said the boy, who has been living with his mother, wants
to live with his father. Murphy said he would appeal Bender's
decision.
"We're disappointed. It was a very complex case," Murphy
said. "One would frequently expect the trial judge to make
the ruling Judge Bender did and leave it for the appellate courts
to sort it out. And of course we will appeal it."
Bender heard about three weeks of testimony, off and on, since
opening arguments last September. Closing arguments for the case,
which was closely watched by children's rights advocates and the
transgender community, were in January.
"I know everyone waited a long time for this day," Bender
said before giving a summary of his decision. "It certainly
is unique in the law in Illinois."
The father's lawyer, Susan Goreczny, left the courthouse without
speaking to reporters. The father was not present in the courtroom.
Murphy said that although state lawmakers should have to wrestle
with the issue of whether same-sex couples may marry, the courts
should look beyond that question in cases like this and rule in
favor of the child.
"It's up to the legislature, and I agree, to say that transgender
couples can marry or not marry, and I think the judge is right
on that," Murphy told reporters afterward. "In this
case, though, two people, two adults, had a child through artificial
insemination, signed a contract to raise him as their child. And
my client, the kid who's almost 11 years old, relied upon that.
"And because the mom and dad held themselves out as parents,
he has a relationship with the alleged father, treats him as a
father, loves him as a father and I think it's unconstitutional
to cut off that relationship after 11 years."
The mother did not talk to reporters, but her attorney, Burton
Hochberg, later said, by phone, that he was "gratified"
by the ruling.
With the breakdown of the two-parent family and the advent of
new reproductive technologies, an increasingly complex network
of step-parents, surrogate mothers and egg and sperm donors has
blurred traditional family roles and responsibilities. Nationwide,
states are grappling with how to define these relationships legally.
"Gradually, the law will catch up to the social reality,"
Hochberg said. "But it's up to the legislature to make those
changes--not judges."
In the case of this Chicago couple--whose names are not being
disclosed to protect the identity of their son--the confusion
started when the couple married Aug. 10, 1985. The groom, who
started taking male hormones in the late 1970s, failed to disclose
his true gender until after the ceremony. The minister, who presided
over the ceremony and signed the marriage certificate, and the
bride's family were also unaware, despite the fact that the newlyweds
lived at her parents' home for a lengthy period of time.
The groom had a hysterectomy and an oophorectomy--removal of the
ovaries--at Grant Hospital in 1991. However, no further surgery
took place, primarily due to economic reasons, according to testimony.
At about this time, the couple was trying to conceive by artificial
insemination. After six attempts with donor sperm, a son was born
July 20, 1992. The couple is listed on the artificial insemination
agreement and the birth certificate.
Said Murphy: "Two people entered into a contract and the
contract said they would raise the child as their own, and they
would act as parents. And for 10 1/2 years now they've gone along
with the contract. And now suddenly the courts are saying well
since the marriage was illegal that contract should be set aside.
And from our point of view you're forgetting the fact that a little
boy relied on that contract. And that little boy treated this
transgendered person as his father and still does, and loves him
and, in fact, wants to live with his father and not his mother."
But the court saw it differently. "As long as female genitalia
remained, the transformation "was not complete," according
to Bender. "There is no marriage to dissolve."
Also, since the union is invalid, the fact that the mother stayed
with her partner after discovering his true sexual identity or
that they both held themselves out as married, is not relevant,
Bender declared.
The father, who is male by all outward appearances, will continue
to have visitation, which typically is alternating weekends and
some weeknights.
Some experts found the decision too narrow.
"It's unfortunate that courts are still as inflexible as
they are because it works to the detriment of kids," said
Bruce Boyer, head of the ChildLaw Clinic at Loyola University
Chicago. "There is at least some wiggle room for a judge
to say I'm going to construe the law in a way that protects an
important relationship."
Heather Sawyer, senior staff attorney for Lambda Legal, which
advocates for the gay and lesbian community, called the decision
a "very unfortunate perspective." Behavior should trump
biology, "and the child's guardian found the father to be
the better parent of the two," she said. "That relationship
should have been recognized and respected."
Copyright © 2003, Chicago Tribune