During a custody battle, conflicting perceptions on how to best raise the children often take center stage. These dueling views may be challenging to reconcile when the issue relates to how to support a child who claims a transgender identity. One parent may believe that supporting the child's gender identity and gender-affirming treatments is best for the child, while the other believes the opposite. In other cases, both parents may accept the child's gender identity, but one parent may be against gender-affirming medical treatments while the other supports it.

Many parents may wonder: whose views get priority in a New Jersey custody fight? Will either view make a difference in terms of who gets custody?

In April 2023, New Jersey Governor Phil Murphy signed an Executive Order confirming New Jersey as a safe haven for people seeking or providing gender-affirming healthcare. However, unlike states such as Texas, New Jersey has no laws or guidelines that prioritize one parental view over another with respect to a minor's gender identity or intent to transition. As with all child custody proceedings, New Jersey law requires courts to apply the "best interest of the child" standard to determine the best custody arrangement in this scenario.

What Does "Having Custody" Mean?

Custody has two components in New Jersey: physical and legal. Physical custody is when one or both parents' home serves as a regular residence for the child, and the custodial parent provides for the child's day-to-day needs. Legal custody describes when one or both parents have the legal right and responsibility to make major decisions for the child, including regarding their education, religion, or medical decisions.

If a parent of a transgender child has sole legal custody, they have full legal authority to decide whether a transgender child should receive gender-affirming care. However, the other parent may go to court to obtain legal custody of the child to fight the transition.

If the parents have joint legal custody, they must agree about whether the child should receive this type of healthcare before the child can receive gender-affirming treatment. If they cannot agree, if they take the matter to court, the judge will decide based on the child's best interest.

Best Interest of the Child

New Jersey law requires courts to consider several specific factors to determine the child's best interest. These include examining each parent's:

• mental fitness
• relationship with the child
• history of domestic violence
• use physical abuse toward the child or other parent, if any
• ability to meet the child's needs
• ability to provide a continuous, good quality education
• ability to provide a stable home environment
• employment responsibilities
• time spent with the child before the separation.

The court will also consider the child's age, the number of siblings, and preferences if the child is of sufficient age and rationality.

As of this writing, there are no known cases in New Jersey of parents suing for custody because their co-parent supports seeking gender-affirming care for their child. However, Sacklow v. Betts gives insight into how a New Jersey court might apply the "best interest of the child" standard in the transgender context.

In Sacklow, the court ruled that a transgender boy was permitted to change his female birth name to a male name over his father's objections. The court held that because the boy had already undergone hormone therapy, had a deepened voice, a muscular build, and facial hair, "To force him to legally keep the feminine name 'Veronica' would not be in his best interest."

Reach Out to an Experienced New Jersey Family Lawyer

Transgender issues are a relatively new area of law, particularly in family law. If you and your former spouse disagree on the best road to take with a child who has professed to be transgender, you need to speak with a knowledgeable attorney to consider the next steps. Call Attorney Joseph D. Lento and his Family Law Team today at 888-535-3686 for a consultation, or schedule one online.