January 25, 2008
Sex change complicates custody battle over kids

By ANDREW BERGH
Special to the Journal

Marriages end in divorce all the time.

But they don't usually end because one spouse decides to undergo gender reassignment surgery. That's what happened in Marriage of Magnuson, which, thanks to a huge dispute over custody of the children, made a Spokane County judge really earn his pay.

Robert and Tracy Magnuson got married in 1985, and later started a family. Their son, Brian, was born in 1991, while their daughter, Meredith, arrived in 1998. Since both parents are professionals — Robert is a lawyer and Tracy is a doctor — they often relied on nannies to help raise their kids.

At some point in time, Robert announced to the world that he wanted to make the transition from male to female. (As he reportedly prefers, I'll call him “Robbie” and use female pronouns from this point forward.) After breaking the news, Robbie took a leave of absence from work and later resigned from her firm.

Following their separation in October of 2004, Tracy filed for divorce in Spokane County Superior Court.

Unfortunately, a giant bone of contention arose, as both Robbie and Tracy wanted custody of their children the majority of the time. Since neither parent would budge, the dispute had to be tried. Robbie, for unclear reasons, had not yet undergone any surgery when the matter went to trial in early 2006.

To assist with its decision-making, the trial court appointed a guardian ad litem to conduct a pretrial investigation. The GAL was certainly no slacker, as he interviewed 23 lay witnesses and 15 professional and expert witnesses, culminating in a 214-page report.

Unsurprisingly, given his thorough investigation, the GAL was an important witness at the eight-day trial, especially for Robbie.

That's because the GAL ultimately recommended that the court designate Robbie as the “primary residential parent.” His reasoning? That Robbie was the “primary parent,” given her sabbaticals and day-to-day involvement with the children; that Robbie was the “more nurturing and engaged” parent; and that Tracy had always been the “secondary parent.”

So did Robbie prevail at trial?

Uh uh.

After hearing all the evidence, the trial court entered numerous findings of fact. The court found, among other things, that both Tracy and Robbie were good and loving parents; that the children's relationship with each parent was about equal; and that given their history of being a two-professional family requiring nannies for help, neither parent could claim the historical role of primary parent. (So far, we'll call it a draw.)

The court also noted that Robbie intended to undergo gender reassignment surgery in the very near future; that the surgery could either meet her expectations or be disastrous; and that the impact of the surgery on the children was “unknown.” (Slight edge to Tracy.)

The court further found that although Robbie had left her job, Tracy still maintained her career, continued to raise the kids in the former family home, and provided an “oasis of stability” amid all the “ongoing change.” (Big edge to Tracy.)

So yes, at the end of the day, the court entered a parenting plan in the biological mom's favor. Though the margin was admittedly slim, said the court, Tracy should be the primary care giver because the children needed “environmental and parental stability,” and because Tracy's place in life was presently “more stable and predictable.”

A chagrined Robbie appealed. Her main claim? That the lower court abused its discretion by impermissibly considering her transgender status in making Tracy the primary parent.

But reasonable minds often differ. And by a 2-1 margin, a Washington appeals court recently upheld the parenting plan in favor of Tracy.

For one thing, the majority pointed out that the GAL's recommendation wasn't binding on the trial court (which only makes sense, lest trial courts become mere rubber stamps for the GAL).

The majority also said Robbie's transgender status hadn't been used impermissibly. To the contrary, the lower court had expressly recognized Robbie's “right to be happy in her chosen life ahead,” while granting her “substantial residential time” without any limitation or restriction.

But most importantly, the majority held that the trial court — consistent with the mandatory statutory factors to be considered when drafting a parenting plan — had properly focused on the needs of the children, including their need for “environmental and parental stability.”

The dissent, however, had a different take.

The proper test of parental fitness, said the dissent, is the present condition of the parent, on which Robbie had received high marks (including trial testimony from a court-appointed expert who thought Robbie was psychologically and emotionally capable of extensive parenting).

In short, the only difference between the parents, said the dissent, was Robbie's planned surgery. But by ruling on that basis alone that Robbie's life wasn't stable, said the dissent, the lower court had impermissibly considered her transgender status.

Thinking ahead, maybe Robbie will seek a modification following her surgery. For now, though, since the majority rules, she'll have to be content being the secondary parent.