Primary Residential Placement & Discrimination

Although it is illegal for a judge to discriminate when making a visitation or placement decision in child custody disputes, it occurs nonetheless.

A recent decision is a case in point:  On Oct. 23, 2007, the Washington Court of Appeals affirmed the decision of a trial judge to place a child with its mother due to the father's transgendered status.  In re Magnuson, 2007 WL 3072435 (Wash. Ct. App. Oct. 23, 2007).  The trial court, in its finding of facts, concluded that "[t]he impact of gender reassignment surgery on the children is unknown."  Id. at *1.  Despite a case from the Washington Supreme Court admonishing that visitation rights must be determined on the basis of the best interest of the child, not the sexual preferences--or sexual orientation--of the parents, the court upheld the lower court's decision.  Id. at *3 (citing In re Marriage of Cabalquinto, 669 P.2d 886 (Wash. 1983) (remanding the case because the court was unable to determine how the lower court made its decision)). 

Granted, child placement decisions are very hard to overturn--considered on the basis of an abuse of discretion.  Id. at *2.  However, the strong dissenting opinion in the case presents an alternate view.  The dissenting opinion agrees with the court's extension of the Cabalquinto decision to cover transgendered parents.  But, the opinion points out that a judge has abused his discretion when he "applies the wrong legal standard or bases its ruling on an erroneous view of the law."  Id. at *3 (Kulik, J. dissenting).  The dissenting judge points out that the court found that the impact of the gender reassignment surgery on the children is "unknown" despite expert testimony that "transgender status does not ultimately have an impact on the parent's ability to parent[,]" the guardian ad litem report, and the advice of the court-appointed psychologist.  Id. at *3-4.  The guardian ad litem also found that Robbie, the transsexual parent, was more involved with the children on a day-to-day basis.  Id. at *4.  "Apparently, the only difference between the parents was that Robbie, the primary parent, planned to have gender reassignment surgery."  Id.

The lower court could have split time between the two parents equally or taken the advice of the guardian ad litem and placed the children with Robbie, the primary caretaker.  Instead, the court chose to focus on Robbie's transgender status and future gender reassignment surgery and placed the children with the other parent.