Illinois, USA
— A Cook County, Ill., judge told a
transgender father on Tuesday that he lacks the right
to seek custody of his son.
Judge Gerald Bender
acknowledged that the man, known as Sterling in court
records, had clearly been a good father, and that his
son, "has bonded with Sterling, feels comfortable with
Sterling and wants to see Sterling." But although the two
"have a good and loving relationship" in the words of the
judge, Bender nonetheless ruled that Sterling's marriage
to his ex-wife Jennifer was null and void, due to the
husband's gender at birth.
The couple's 1985
marriage was not challenged at the time. Jennifer gave
birth through artificial insemination in 1991, and the
two divorced in 1998.
"The parties' purported
marriage is invalid, because the Legislature has
determined that a marriage between two individuals of the
same sex is prohibited in Illinois," wrote Bender. "This
is not to say that there cannot be same-sex relationships
that are more stable than those of married couples, but
it is up to the Legislature, and not this court, to enact
the law."
Bender appeared to ignore
settled law that the best interests of the child take
priority over other factors in custody cases. According
to the Chicago Sun-Times, the child's public
guardian, Patrick Murphy, believed that Sterling was the
better parent, and recommended that he win
custody.
"From our
perspective," Murphy said, "the case was never about
transgender rights. I don't know if (Sterling) is a
man or a woman. I just know that he's a hell of a good
father, the kid loves him, and wants to live with
him."
Murphy plans to appeal
the ruling.
Just two months ago, a
Florida judge took the opposite position in a case
pitting Michael Kantaras against his former wife, Linda.
On Feb. 21, Judge Gerard O'Brien ruled that the Kantaras'
marriage was legal,and awarded the transgender father
primary custody for his two children, 11 and
13.
