Maryland/D.C. Child Custody: Should Gender Affirmation Be Officially Considered As Part of the “Best Interests” of the Child?

LGBTQ+ youth with rainbow colored hair

In the news, California lawmakers are advancing legislation that would officially add gender affirmation to the list of factors to be considered by California divorce court judges when considering child custody and visitation arrangements.

Read on as the Maryland and D.C. family law attorneys at The Law Offices of Thomas Stahl explain more.

The bill — officially called “Assembly Bill 957” — will be known as the Transgender, Gender-Diverse, and Intersex Youth Empowerment Act if enacted. The California Assembly Judiciary Committee has advanced the bill out of committee. AB 957 has the general purpose of ensuring that parents affirm their child’s gender identity. More specifically, it provides that affirming a child’s gender identity is part of “the health, safety, and welfare of the child.” The bill would allow — not mandate — that California divorce courts to consider, as part of decisions on child custody and visitation, whether each parent has affirmed and been supportive of their child’s gender identity. Mandating this as a factor to be considered by the California divorce court was part of the original draft of AB 957, but the bill has been watered down in the Committee process.

This modification is not too important since, as currently written, AB 957 would define “abuse” to include a parent’s refusal to affirm their child’s gender identity. Abuse is always a factor to be considered by a court when awarding custody and/or visitation rights. Thus, if enacted, this provision would effectively allow courts to refuse custody and visitation rights to parents who do not affirm gender identity. Proof of abusive behavior towards a child is almost always the “death knell” to a parent’s chances of obtaining custody or visitation rights.

As in Maryland and the District of Columbia, when deciding custody and visitation, divorce courts must consider a number of factors, including such matters as the age of the children, the ability of the parents to provide care, financial capacity, and desire of the parents, etc. The legal standard is what is “in the best interests of the child.” Although AB 957 does not require California courts to consider gender affirmation as a factor, the bill does require courts to “strongly consider” that affirming a child’s gender identity is “in the best interest of the child” when one parent or the other is in disagreement about various aspects of gender affirmation, such as if a parent refuses to consent to a child’s legal name change that conforms with the child’s gender identity.

So, should Maryland and the District of Columbia consider such legislation? Yes, of course. But, the political fight might be too difficult to win. AB 957 has a vocal and active set of critics, and a similar bill failed to pass the California Assembly in 2022. On the positive side, AB 957 is about requiring courts to officially consider gender affirmation. As a matter of practice, Maryland and D.C. divorce court judges already consider gender affirmation in an unofficial manner. Courts already consider the unique circumstance of each family. If gender affirmation is an issue in a given case, the court will be apprised of those facts and, inevitably, will consider gender affirmation as part of the totality of circumstances that are used to make custody and visitation decisions.

Maryland And D.C. Family Law Attorneys

Contact the seasoned and experienced Maryland and D.C. family law lawyers at The Law Offices of Thomas Stahl for more information. We have the skills and expertise you need. We have proven experience with family law for Maryland and the District of Columbia. Schedule a consultation today or call us at (410) 696-4326 or (202) 964-7280. We have offices in Columbia, MD, and Washington, DC.

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