By Advocate.com Editors
Originally published on Advocate.com April 11 2003 12:00 AM ET
A judge in Chicago has ruled that a transgendered man can't have custody of a 10-year-old because the man is a biological woman who has no standing to seek custody of the boy. Cook County circuit judge Gerald Bender on Tuesday granted the mother sole custody of the boy. In his 13-page opinion, Bender ruled that same-sex marriages are illegal in Illinois. But because the boy has established a bond with his father, whose first name is Sterling, the judge ordered that the father have continued visitation with the child, who has been living with his mother but wants to live with his father. "[The boy] has bonded to Sterling, feels comfortable with Sterling, and wants to see Sterling," the judge wrote. But he said he could not violate state law, which does not recognize same-sex marriages.
The couple, who remain unidentified for the child's privacy, married in 1985 without disclosing that the groom was born a woman and underwent hormone therapy but still had female genitals. The mother became pregnant through artificial insemination. The couple are no longer together.
Cook County public guardian Patrick Murphy, representing the child, and other advocates for the transgendered contended that gender and marriage are irrelevant to a boy who accepts and loves his father as a parent. "We're disappointed. It was a very complex case," Murphy said of Bender's decision. "One would frequently expect the trial judge to make the ruling Judge Bender did and leave it for the appellate courts to sort it out, and of course we will appeal it."
The father's lawyer, Susan Goreczny, did not comment on the judge's ruling. The father was not present in the court for the decision. The mother left the court without commenting. But her attorney, Burton Hochberg, later said he was "gratified" by the ruling.