A few weeks ago, I had the opportunity to speak on a panel as part of a continuing legal education seminar about serving the needs of LGBTQIA+ clients. We tackled substantive legal issues that are unique in serving the LGBTQIA+ community, and we also spent a lot of time talking about how to make our practices more inclusive, including using appropriate language and terminology. Our program focused primarily on the needs of our LGBTQIA+ clients, but in many of our family law cases, the person who is part of the LGBTQIA+ community is the child, not the parent.
In most custody cases, a child identifying as LGBTQIA+ is not relevant to the custody claim, but what about cases where caregivers disagree on appropriate care for the child or where one parent is rejecting the child? How can we make sure that we are being mindful and respectful of children in the LGBTQIA+ community who are involved in our custody cases? Here are a few tips:
1. Use Discretion in Court Documents. North Carolina is a notice pleading state. That means, in most family law claims, there is no requirement that your complaint or motion have extensive detail or really say much more than the statute for your claim, brief factual allegations, and a basic statement of what you are asking for.
Your clients’ court documents are not the place to “out” a child (i.e., revealing a child’s sexual orientation or gender identity without that person’s consent). And court documents are also probably not the place to detail a child’s gender identity journey. While there are certainly times where these facts could be relevant to a client’s position in a custody claim, use some discretion in putting this information in a public document that is available to anyone…forever. There are ways to plead this information to satisfy notice pleading requirements without disrespecting the child involved or violating their privacy. If this information is necessary to your pleading and you can’t find a way to creatively draft around these issues, consider asking the court to seal the file. If the child is already “out,” still consider the appropriateness (and relevance) of including this information (and/or private medical, social, or psychological details about the child) in pleadings. Our clients’ children deserve their privacy too!
2. Use the Right Names/Pronouns. Use the child’s pronouns and the child’s name when speaking about the child with your client even if those are different than what is on the child’s birth certificate. If the names and pronouns change during your work with your client, update your notes and use the correct terms at that time. If you slip up and make a mistake (it happens…but shouldn’t happen often), apologize and move on. If your client refuses to use the child’s preferred name and pronouns, suggest that your client seek some support (see below).
3. Support your Client in Protecting the Child/ren. Although we are advocates for our clients, at the heart of our work on custody matters are children and their best interests. Often, a parent who is affirming of an LGBTQIA+ child is accused of “encouraging” or “pushing” a child to identify as part of the community [Spoiler alert: a parent can’t make a child gay, queer, transgender, etc. Conversely, a parent’s rejection of a child’s identity is more likely to make the child feel traumatized and depressed than to actually change the child’s identity.] Research also shows that when children are rejected by their families or do not feel supported, they have an increased risk of suicide, anxiety, and depression. (see, for example, https://www.cdc.gov/lgbthealth/youth.htm ). Add a custody battle on top of that for a particularly miserable childhood.
If your client is dealing with conflicting emotions about a child being gay or questioning gender identity or is dealing with a co-parent who is having difficulty being supportive, encourage your client to seek support in the form of education, support networks (there are some terrific online and local communities), or finding a therapist. Encourage your client to be a safe space for a child who is questioning gender identity or coming out…even if the other parent disagrees.
4. Seek out Experts and Appropriate Care. Beyond making sure that your client is educated and prepared to support the child, make sure that the child has the support of providers who can provide appropriate care and protect the child from psychological distress especially in the context of custody issues between the parents. In cases involving sexual orientation, these are therapists who have special expertise in working with LGBTQIA+ children. In cases involving transgender children or children exploring gender identity, these are often professionals at gender clinics. In Raleigh, we are lucky to have Duke Child Adolescent Gender Care and the UNC Pediatric and Adolescent Gender Clinic just a short drive away.
As there may be significant medical questions involved in supporting a transgender child, it’s important to seek advice from experts with medical training. Overwhelmingly, I’ve found that when parents disagree about how to address the needs of an LGBTQIA+ child, a judge will defer to the treating providers and experts involved in the child’s care or will appoint a Parenting Coordinator to help the parents resolve disputes about care. Having those experts involved early on with the family may prevent a dispute by the parents of how to address the child’s needs and may avoid a custody fight altogether.
And above all, don’t be part of the problem. As advocates, we are in the unique position of providing advice to parents who are navigating custody issues—part of that advice should be affirming LGBTQIA+ children and not letting the court system be a place where a client’s feelings play out in rejecting LGBTQIA+ children or disrespecting/victimizing them within a custody case. If the standard for custody cases is “best interests of the child,” you can explain to your client that it is never in a child’s best interests to feel rejected, ashamed, or isolated. If that’s a position your client wants to take, encourage your client to do better (this is where experts and education come in) and then move on from the client if necessary.
By Katie King