A child’s right-in-trust to be treated as a person requires parents and the State to help
children grow into fully autonomous adults, as their roles as trustees charge them with this duty.
The obligation to respect a child’s choices and entrust a child with greater responsibility becomes
stronger as the child gets older and develops more characteristics of a fully autonomous adult.
In a court’s role as a trustee, it must determine which parent carries out their duty best during
custody disputes when parents disagree over what is in the child’s best interests.
172 “The parent to
whom the court does not grant custody cannot object that her rights are violated because, as a
trustee, her rights could only be used to secure the child’s best interest – a fact the court has
determined against her.”
173 As a result, when a supportive parent loses custody of their gender
nonconforming child, it is very difficult to regain custody.
In custody cases concerning a transgender child, parents should provide the court with credible
information about gender variance and commonly recommended treatments for gender dysphoria,
as well as involve a qualified therapist with experience in gender and development issues in the
174 When asking the court to order a treatment plan, parents should ask that the plan
involve thoughtful evaluation of the child’s needs, ideally under the guidance of a qualified
therapist, made in collaboration of both parents before a treatment strategy is solidified.
2. “Best Interests” Principle
When awarding custody, judges must rule in favor of the arrangement that is in the “best
interests of the child.”
176 Illinois law requires courts to contemplate all relevant factors, including
a list of enumeration factors.
177 These fifteen factors to consider include the needs and wishes of
the child (where more mature children who can express themselves independently, in reasoned
statements have more weight placed on their interests), the wishes of the parents, the mental and
physical health of all parties involved, and each parent’s ability to work together to make
178 “Determining the ‘best interests’ of the child ultimately consists of two questions:
first, what is the desirable long-term goal for the child; and second, what present arrangement is
most conducive to the child reaching that goal?”
179 The goal of a best interests analysis is not to
reinforce a particular cultural perspective or work out a social controversy, regardless of an
individual’s views regarding gender change.
In applying the medical model of transgenderism, the presence of bias in favor of
traditional gender norms and negative stereotypes about parents who promote
gender nonconformity may explain why courts favor custody with the rejecting
parent in cases involving gender-nonconforming children, where one parent is
supportive and the other is rejecting.
170 HOULGATE, supra note 163, at 46.