Compassionate Guidance

Through Difficult Personal Times

Is a gender marker change in the child’s best interest?

On Behalf of | Sep 23, 2021 | Family Law

The Court of Appeals of Indiana, the state’s second-highest court, recently decided a case examining the question of whether allowing a minor to change their last name and gender marker on their birth certificate was in the child’s best interest. More specifically, the trial court had allowed the name change, but claimed that the mother, as petitioner on behalf of the 15-year-old child, had not shown that the gender marker change was in the child’s best interest. The appellate court weighed in on whether the trial court erred.

An uncontested request

In this case, both parents and the 15-year-old child agreed with the requested gender marker change. The mother also presented to the court letters of support from both the child’s physician and counselor. The trial court concluded, however, that the mother had not proven that the change was in the child’s best interest. The judge pointed to a lack of expert testimony or authenticated documents. The mother appealed.

Who bears the best interest burden of proof?

The divided Court of Appeals ultimately held that the trial court did not err. They raised the question regarding who has the burden to prove something is in a child’s best interest, and determined it is the petitioner wishing to make a change.

Courts often take many factors into account when deciding whether something is in the best interest of a child. These questions usually arise in the context of a custody dispute between parents, however. Here, both parents agreed on the change.

The mother argued that an unopposed petition should meet a presumption of best interest, but the court disagreed. The majority held that the state also has an interest in a child’s welfare and the fact that the parents agree on an action does not conclude the argument. They did not accept the supporting letters as persuasive.

Not everyone agrees with the ruling

The dissent made two arguments to the contrary. First, that the mother met the evidentiary burden by providing the letters from the doctor and counselor. Second, that the U.S. Supreme Court found in Troxel v. Granville, 530 U.S. 57, 68 (2000), that there “is a presumption that fit parents act in the best interest of their children.” Time will tell if the parents in this case will choose to appeal the decision to the Indiana Supreme Court. Either way, this may not be the end of the matter in Indiana or nationally.