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February 2, 2001

Father's sex change does not alter custody, court says

Girl, 6, calls parent Mommy and Daddy; cautious in public

Anne Marie Owens
National Post

A father's decision to change his gender from male to female does not constitute a material change in circumstances sufficient to warrant altering a child custody arrangement, an Ontario court has ruled.

The recent ruling sets out the premise in family law that a person's transsexuality is irrelevant on its own as a factor in his or her ability to be a good parent.

The custody dispute was launched by Margaret Saliba after learning Howard Forrester, with whom she had lived for three years and had one child, wanted to live his life as a woman and declared himself to be a lesbian.

The child's father has officially changed his first name from Howard to Leslie, and altered his appearance to appear as a woman. He lives his life as a woman, although there have been no surgical changes so far to accompany this transition from male to female.

Prior to the revelation about transsexuality, the couple had agreed to an equal-time custody arrangement.

In custody disputes, any parent seeking a material change in the terms of his or her custody agreement must demonstrate to the court there has been a material change in the circumstances affecting the child.

In this case, Justice Theo Wolder, of the Ontario Court of Justice in Brampton, ruled "the applicant's transsexuality, in itself, without further evidence, would not constitute a material change in circumstances, nor would it be considered a negative factor in custody determination."

Joanna Radbord, the Toronto lawyer who defended the father, said the decision could inspire other transsexuals, who often give up fighting for custody because they assume the justice system will be biased against them.

"We live in a transphobic culture ... but it's clear that the test for custody and access is always the best interests of the child," said Ms. Radbord, who described the relationship between father and child in this case as amazing.

"The best thing for a child in any custody dispute is for both parents to have equal access," the father said in an interview. "If you actually love your child, that should be the issue. You're supposed to want what's best for your child."

In his ruling, Judge Wolder said the evidence showed a happy child who has positive relationships with both parents.

"Frankly, it is remarkable how little impact all this storm swirling about the parties has had upon this little girl," he said. "It appears from the evidence that [she] is a very well-adjusted, happy, healthy little girl, who in her own way has been able to accept the changes in her father and continues to enjoy a healthy relationship with her father, now a woman psychologically."

The child, who is six, uses both Mommy and Daddy to refer to her father, although she is cautious about using Daddy in public when people might overhear.

The father says most people do not know she is genetically a man and believe she is a single mother: "I think right now it's easier for kids and society to deal with two moms than it is to deal with the whole trans issue."

Ms. Saliba and Mr. Forrester began living together in March, 1994. Their child was born in November of that year.

Ms. Saliba testified it was a "perfect situation every woman would want in a husband." She said she wanted to marry Mr. Forrester, a daycare worker who did most of the cooking, cleaning and ironing at home and was a major caregiver for his daughter.

"Leslie prepared food for [her], read to her, did the morning and bedtime routine, and shared playtime with [her]. Leslie stayed up nights with her, with the parties taking turns comforting [her] to sleep," court documents say. "Most nights, it would end up that Leslie would have [the baby] on her chest until [she] fell asleep."

The couple separated in 1996 and agreed to equal custody.

In July, 1997, the transsexuality was revealed to Ms. Saliba.

"There is no doubt that the disclosure of her transsexuality and of her wish to undergo a change of sex from male to female had a devastating impact upon [Ms. Saliba]," the judge said.

The custody case was launched in the spring of 1999, when it was clear the child's father was intent on living life as a woman.

An initial access order prohibited the father from taking the child to "neighbourhoods known to be frequented by transsexuals."

The stress in the relationship over the father's move from male to female did not appear to have an impact on the child, who was three years old when the process began, the court heard.

A psychological test found the child was free from any gender identity problems.

"She was so young that they don't really have a sense of their own gender so they're very open," said Ms. Radbord. "She's always known her father as a woman. It's all she's understood."

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