No Rule That “a Transgender Parent Should Not Be Awarded Tiebreaking Authority over a Cisgender Parent on Matters of Gender Identity and Expression”

An excerpt from Turner v. Abelle-Kiser, decided Tuesday by the Maryland Appellate Court, (Judge Douglas Nazarian, joined by Chief Judge Gregory Wells and Judge Glenn Harrell):

This appeal arises from a custody dispute between appellant AshLee Smith Turner (“AST”) and appellee Blair Abelle-Kiser (“BAK”) over custody of their minor child, Z…. [AST] challenges the court’s legal custody decision, and especially the decision to grant tiebreaking authority to BAK ….

The parties are parents to Z, a minor child. They married before they had Z and were granted a judgment of absolute divorce in June 2022. AST is cisgender, and BAK is transgender…. [In its child custody decision, the trial] court awarded joint physical custody … and, most relevant to this appeal, joint legal custody with conditional tiebreaking authority vested in BAK….

The court upheld the legal custody decision, and in the process said the following:

AST argues that … because Z has begun exploring their gender identity, because BAK is trans, and because BAK has been supportive in that exploration, the circuit court abused its discretion by establishing legal custody as the court did….

Importantly, AST does not challenge BAK having tiebreaking authority generally, but asks instead that the court carve gender identity-related parenting decisions out of the tiebreaker. She contends, in essence, that allowing a trans parent to have tiebreaking authority when a child has begun exploring their gender identity is inherently an abuse of discretion. We disagree.

“[I]n any child custody case, the paramount concern is the best interest of the child.” Legal custody refers to a parent’s authority to make “long-range decisions” regarding things like education, health, and “other matters of major significance concerning the minor’s life and welfare.” …

[T]he circuit court didn’t abuse its discretion in deciding not to separate decisions relating to gender identity from the rest of the custody structure. The court had the opportunity to consider the testimony of AST, BAK, BAK’s current wife, AST’s current husband, and the court evaluator. The court received various documents admitted into evidence, including the court evaluator’s report. AST relies most heavily on the evaluator’s report on appeal, but the court was entitled to, and did, give that report the weight it thought best, and in any event the report’s conclusions weren’t so one-sided as to undermine the ruling.

It may be that the evaluator suspects that BAK might have allowed a quicker progression of Z’s gender exploration than AST would, and perhaps that they were moving too quickly. But in the same breath, the report criticizes AST for moving too quickly to integrate her new husband into Z’s life. The custody plan ordered by the court recognizes the complexities and fluidity of parenting and retains the opportunity and incentives for the parents to work together to make all the decisions Z will need them to make.

Moreover, the court evaluator interviewed multiple therapists, including those treating Z. As the evaluator noted, “[b]y all accounts, [Z] made [the decision to explore their gender identity] independently.” And Z’s therapist “recommended that the parties follow [Z]’s lead in terms of using [their] preferred pronouns and whatever name [they] wanted to be called on a daily basis.” The report never suggests that supporting Z in their gender exploration is not in their best interest. Indeed, at least according to their therapist, supporting Z’s gender identity formation and exploration is affirmatively in their best interest. The circuit court considered and weighed the report appropriately, and well within its considerable discretion, in establishing custody.

Although not in so many words, we sense from AST’s arguments on appeal that she would prefer a rule that a transgender parent should not be awarded tiebreaking authority over a cisgender parent on matters of gender identity and expression. AST has not identified, and cannot identify, any individual or specific reason why BAK is unfit or less qualified to exercise tiebreaking authority on these issues than she is, nor has she challenged the tiebreaker in any other dimension. But although our courts no longer recognize the law/equity distinction of old, custody decisions are quintessentially equitable in nature and not an appropriate setting for per se rules—especially per se rules that could be grounded in stereotypes, prejudice, and the like. Cf. Royall v. Dicks (Md. App. 2026) (rejecting argument that false statements about sexual orientation are defamatory per se). We affirm the circuit court’s decision to award joint custody with a conditional tiebreaker in favor of BAK.