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Trans Parenthood: A parent’s need to be present in their child’s life and the misconceived criterion of “stability” as a pretext for exclusion

Legal theory likes to describe our family law as ‘child-centred’. In our books, pleadings and courtrooms, arguments open and close “in the best interests of the child.” Parents, lawyers and judges act in “the best interests of the child” and whatever is decided in the special family litigation process is done in the child’s name.

In its decision of 11/04/2011, the European Court of Human Rights upheld the exclusion of a transgender mother from her minor child by the Spanish authorities. The applicant before the ECtHR invoked a violation of the right to private and family life enshrined in Article 8 of the European Convention on Human Rights and the principle of non-discrimination in Article 14 of the Convention, claiming that her racial discrimination was the reason for the restriction of her right to communicate with her child, which she had until then been exercising normally. The appeal was dismissed, adopting the reasoning of the Spanish courts: the restriction of the right of access was not due to the mother being transgender but to the best interests of the child, who was in need of ‘stability’, which was threatened by the parent’s transitioning. The Spanish courts, according to the ECtHR’s reasoning, did not rely on ‘discrimination’ against the person being trans but on the psychiatrist’s report, in the context of which the applicant was diagnosed as ‘mentally unstable’.

In January 2017 the Manchester Family Court upheld the exclusion of a trans mother from direct contact with her children, defining the concept of their best interests as follows: The children and their trans mother herself were members of Manchester’s ultra-Orthodox Jewish community prior to her transitioning. It was the parents’ common desire to raise and educate them within the strict framework of this community. Following the trans mother’s departure from the community and her transition proceeding, the court held that any direct contact between her and her children would mean their exclusion from the community with which their existence and development were intertwined. The children could not live outside the community and their best interests dictated that it was their trans mother who should be ostracised.

Two different landmark decisions on the rights of trans parents whose backgrounds are ultimately common: The best interests of the children require the trans parent to be absent.

What is really understood as the best interests of the child?

Under our law, any decision by the parents, as well as the court’s regulation of the exercise of parental responsibility after divorce or the breakdown of a marital partnership, must be in the best interests of the child. The best interests of the child is a vague legal concept which is specific to each individual case. It does not have a predetermined legal content, but rather it is the task of the judge to find what is best for the child in each case.

It is noteworthy that in making this decision the judge “must respect equality between parents and must not discriminate on grounds of sex, race, language, religion, political or any other opinion, nationality, ethnic or social origin or property”.

The protection of the best interests of the child is common ground in the international legal order. According to the New York Convention on the Rights of the Child (which was ratified by Law 2101/1992 and is now also our national law), a child has the right not to be separated from his or her parents against their will, except where such separation is necessary in the child’s best interests.

The question of when this “necessity” of separation exists, i.e. when separation can be ordered as a necessary measure, is a judgment that is subject to the principle of proportionality, as enshrined in Article 8 of the European Convention on Human Rights and paragraph 1 of Article 25 of the Constitution.

Since it is therefore common ground that it is in the child’s best interests that both ‘good’ parents remain in his or her life, the question is when separation from one parent can really be in the child’s best interests. How can the criterion of stability to which the child’s well-being is linked be interpreted in a way that excludes him from his own parent, to whom the notion of stability is axiomatically linked? In any case, what is the necessary measure, the red line which the legal order must draw and say so far, to remove a parent from his child?

Let’s look at the criterion of “stability” in more detail ﮲

A stereotypical court decision regulating the exercise of parental responsibility after the divorce or the breakdown of the parents’ marital partnership by assigning it to one parent and regulating the other parent’s right of contact states the following:

[…] in regulating the right of communication, however, the interests of the child shall be taken into account first and foremost, which exist when such communication contributes to the development of the minor’s mental world and personality. The right of communication is not negated by any fault on the part of the parent for the breakdown of the marital relationship, nor can it be excluded, except in exceptional cases where its exercise in any way would be harmful to the minor. The best interests of the child, as a criterion for regulating the parent’s right to communicate with the child, is a vague legal concept which is defined by the court in the light of the circumstances of the particular case, taking into account the facts of the case on the basis of evaluative criteria derived from the rules of reason and the lessons of common experience, taking into account the findings of evolutionary psychology and child psychiatry’.

[…] It is common knowledge, according to the findings of science, that children need emotional permanence, stability and continuity in their care, which will enable them to develop a secure psycho-emotional bond with their primary carer […]. This stability is achieved through a stable home, continuity of care, the stability of the main carer, a calm climate in family relationships, clarity of roles, spaces and relationships’.

Simply put: the child needs security and stability. Anything that threatens this stability is understood to be against his best interests and ‘left out’.

The question is, of course, what does home and stability mean to a child? A home is safe because its parents, the people who love and care for it, are there. When their cohabitation breaks down, it is a basic principle of our law that we must adhere to the best interests of the child: that the child be left as unscathed as possible by the conflict between the parents, that we find the best solution for the child regardless of fault for the breakdown and/or divorce. Hence the term child-centered. No matter who is to blame for the marriage, what went wrong, we need to look at the children.

How else is it possible to maintain that stability, if not by maintaining balanced contact with both parents? When we say that nothing should change for the child, it can only mean that the child will continue to have both parents as he/she had them before, no matter whether they are in the same home. Otherwise, we could abolish divorce in the name of stability or understand the family as a physical place, where the walls of the house matter, not the mental contact with the parents, which give the child a feeling of security and stability.

So with this in mind, when can joint custody or even communication with one parent threaten the stability of the child?

When one parent is not violent, not abusive towards the child, how can we deprive the child of that parent? Case law has held that even sex work or mere drug use and possession alone is not in itself a reason to exclude a parent from communicating with a child. According to decisions of the Greek courts, a parent who is abusive towards the other parent is not deprived of the right to communicate with his or her child, provided that no danger to the child is inferred. Even the wrongful consideration of transgenderism as “psychiatric instability” could not be a ground for restricting the right of contact, if it is not inferred that there may be any danger to the child.

Does transitioning therefore constitute a ground for exclusion? Is the transgender parent a ‘bad parent’ by definition, such that exclusion is the appropriate, proportionate and necessary measure in the child’s best interests? The question ultimately is what risk there may be to the child from contact with his or her trans parent.

The exclusion of trans people from society begins with their uprooting from its core, their own family. Law 4491/2017 makes it a prerequisite for legal recognition of gender identity that they are unmarried.

In fact, it forces even couples, for whom the transgenderism of one parent is not a reason for the breakdown of their marriage, to separate in court. Similarly, it limits the legal consequences of gender identity recognition with regard to children: for children and their official documents, their transgender parent will never be listed with their correct gender identity. Misgendering ” is essential for the legal status of children, their origin from their father and mother, “the clarity of roles, spaces and relationships”. The interest of children again stands as a wall to the right to family life of trans people, who must establish that their gender identity cannot be reconciled with parenthood, not because of transphobia but for ‘the sake of the children’. Let’s not forget the still widespread practice in many countries (and prevalent in our country before Law 4491/2017) of sterilization and mandatory gender reassignment surgeries as a prerequisite for legal gender identity recognition. Transphobia is clear: The trans parent cannot and should not exist.

This transphobic attitude can only creep covertly into the decisions of the courts. It is not his fault that he is transgender, it is his fault that he is “mentally ill”. It doesn’t matter that she is transgender, it’s not her fault that the community doesn’t want her, it’s her fault that the children will be stigmatized or frightened by their parent who “changes”. It brings to mind the familiar argument, which reverses the problem, in the case of same-sex couples having children: ‘Don’t they care about the children who will grow up in a homophobic world”? Treating transgenderism as a psychiatric instability is nothing more than covert discrimination, which ultimately reflects the judge’s and society’s own fear of the trans parent. We “fear” that something might happen to the child from “exposure to transgenderism”, which has finally imprinted itself in us like a disease.

At the same time, these court decisions invoke both the prohibition of discrimination and modern child psychiatry when regulating custody. The studies are unanimous: what is harmful to children is not the fact that they see their parent ‘changing’, since the parent is staying there and will stay there after the change, but the harmful thing is the other parent’s stigmatisation of the parent, the stigma with which the community burdens him or her and the children themselves.

Let us not forget that the estrangement of the other parent caused by the person exercising custody of the children is an element of misuse of parental authority and justifies its removal, while the failure of Member States to ensure the right of parents and children to communicate in cases of estrangement by one parent to the detriment of the other has been condemned by the European Court of Human Rights!

At the same time, the Council of Europe calls on Member States to combat discrimination against transgender parents and to safeguard their rights and those of their children.

Trans parents can no longer be forced into obscurity and their children cannot be forced away from their parents “for their own good”. Ensuring the presence of trans parents in their children’s lives, either through custody or through the right to contact, is a positive obligation of our state, and our law cannot claim the title “child-centered” until it truly puts these children at the center.

svgThe judgment of 14 December 2021 of the Court of Justice of the European Union in case C 490/20, (V.М.А. v Stolichna obshtina, rayon "Pancharevo") in dialogue with the decision 9/2016 of the of the Greek Supreme Court: the criteria for cross-border recognition of personal status and the treatment of "impaired" legal relations in the case of same-sex families
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svgJuly 2022 – As of 25.07.2022 Temporary Order of the Athens Court of First Instance - Prohibition of relocation of the children with their mother - designation of the former matrimonial residence as the place of residence of the two children and award of joint custody to the parents - rejection of the request for maintenance