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    Custody case could set precedents

    The decision over whether to grant a transsexual father custody could create wide-ranging legal precedents.

    By ALICIA CALDWELL, Times Staff Writer
    © St. Petersburg Times
    published February 10, 2002


    CLEARWATER -- It's a case that is drawing national attention mostly because of the titillating details about transsexualism.

    But Kantaras vs. Kantaras, which has occupied a Pinellas courtroom for much of the past three weeks, has the potential to be a force in Florida law long after the last satellite television truck pulls off.

    Legal experts say that if the courts afford Michael Kantaras, a transsexual, rights to the children he raised with his wife, the case could establish precedents in several arenas.

    It could provide a legal definition of gender in Florida, as well as spell out a transsexual person's child custody rights. But it could also give nonbiological parents or stepparents -- they are called psychological parents in other states -- a legal foundation to seek visitation or custody.

    "This judge has the ability to do that," said Caroline K. Black, a Tampa lawyer who is chairwoman-elect of the Florida Bar's family law section. "He could make law in Florida."

    But those who specialize in these areas acknowledge that the hurdles are many and steep. Florida has been very protective of the rights of biological parents, to the exclusion of others who may have had a substantial role in raising a child.

    "The courts, in drawing these bright line tests, aren't delineating between a person who raises the child for six years or an aunt or unrelated person," said Elizabeth Brooker, a Vero Beach lawyer who litigated a 1998 high-profile custody case between two lesbians. "If they open the door, a lot of people who didn't think they had any rights, they might have standing in court."

    In the Kantaras case, Michael Kantaras is not the biological parent of either of the two children, now ages 10 and 12, whom he helped raise. He started life as Margo Kantaras but underwent sexual reassignment surgery in 1987. Linda Kantaras, who knew about the surgery before she married him, is the biological mother of both children. Both parents, who live in Holiday, are seeking primary custody. Lawyers for both sides have said the case undoubtedly will be appealed.

    As someone other than the biological father of the children, Michael Kantaras essentially has two legal paths to getting some sort of rights where the children are concerned.

    Either the court determines he is a man, and therefore his marriage is legal as is his adoption of the older child and parental rights to the second child, who was conceived via artificial insemination during the marriage. Or, the court goes the route of according him rights based on his longstanding involvement in their lives as a de facto parent.

    The latter is a strategy most frequently invoked in custody battles between same-sex couples. While other states, such as New Jersey and Massachusetts, have recognized de facto parents, Florida legal precedents aren't very encouraging.

    "The cases in Florida are fairly against that," said Brooker, who unsuccessfully tried to assert parental rights for the nonbiological parent in a gay relationship. "What they're saying is the interest of parents in raising their children are paramount to that of a third party. Florida courts have held that only biological parents in these kinds of cases are legal parents."

    A U.S. Supreme Court opinion handed down in 2000 would seem to erase any hope that this line of reasoning could ultimately succeed.

    In its so-called Troxel opinion, the court reviewed a Washington state case in which grandparents were allowed visitation. That, the court wrote, unconstitutionally infringed on parents' fundamental right to raise their children.

    Advocates familiar with that case and the Kantaras case said a substantial difference is that the grandparents were not the primary caretakers. Michael Kantaras was the main breadwinner in the family, and the children and the public believed him to be the father of the family.

    "It's a reality that the children have lived," said James Esseks, litigation director of the American Civil Liberties Union's Lesbian and Gay Rights Project, based in New York. "That bond is not something we should lightly take away."

    But another advocate said the court ought not to move heaven and earth to give parental rights to Michael Kantaras.

    The court shouldn't, said the general counsel of an Orlando religious rights group, take on the job of defining gender, the other main line of legal reasoning in the case.

    "Even though someone has gone through a sex change, that doesn't change their gender from a legal standpoint," said Mathew Staver, general counsel of Liberty Counsel. "I think from a legal standpoint, neither of them can claim a legal marriage."

    The Kantaras case poses an issue not previously addressed in Florida courts: whether a female-to-male transsexual who has gone through a medically approved sex change process is legally a male.

    The former chair of the American Bar Association's family law section said she has been watching the trial closely and she believes it will be a key issue in the case.

    "It seems to me that what it's going to come down to is the definition of a man," said Lynne Gold-Bikin, a Philadelphia lawyer. "And whether transsexual surgery is enough to change someone's gender."

    Should gender hinge on chromosomes? Hormones? Or even body parts, the discussion of which provided the most graphic testimony in the Kantaras case?

    "There are a lot of people who are born with two sets of organs," said Gold-Bikin. "Is a man defined by his penis?"

    In other states, the answer would be, yes, in part.

    Some of the factors that have been considered by other states defining gender include sexual identity, assigned sex and sex of rearing, internal and external sexual organs, and chromosomes

    The case, being heard by Pinellas-Pasco Circuit Judge Gerard O'Brien, has taken far longer than the typical custody case, in part because of the complexity of the issues at hand and the lack of precedent in Florida law.

    It all makes for a difficult and unusual case.

    "These aren't easy issues," said Gold-Bikin, the Philadelphia lawyer. "It will absolutely make Florida law."

    -- Times researcher Cathy Wos contributed to this report.

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