Procedural Posture

Appeal against the decision of the District Court for Delta County, which granted custody to the appellant’s former spouse, contrary to the couple’s original divorce decree, because the appellant had undergone a female to male sex reassignment following the divorce.


The appellant and the petitioner were married in 1953 and had four daughters before they divorced in 1964. The divorce decree granted the mother, the appellant, custody of the children, who lived continuously with the appellant from the time of the divorce until the time of the case. After the divorce, the appellant commenced a process of gender transition. The girls’ father petitioned the District Court for custody of the girls because of his former wife’s sex reassignment.


Whether amending the couple’s original custody arrangement, following the appellant’s sex reassignment, was in the best interests of the children.

Domestic Law

Colorado Revised Statutes

Section 46-1-24(1) (listing factors to be considered regarding the best interests of the child: the wishes of the child’s parent or parents as to his custody; the wishes of the child as to his custodian; the interaction and interrelationship of the child with his parent or parents, his siblings, and any other person who may significantly affect the child’s best interests; the child’s adjustment to his home, school, and community; and the mental and physical health of all individuals involved).

Section 46-1-31(2)(a) (providing that “the court shall not modify a prior custody decree unless it finds … that a change has occurred in the circumstances of the child or his custodian and that the modification is necessary to serve the best interests of the child”).

Section 46-1-31(2)(a) (providing that “the court shall retain the custodian established by the prior decree unless (d) The child’s present environment endangers his physical health or significantly impairs his emotional development and the harm likely to be caused by a change of environment is outweighed by the advantage of a change to the child”).

Searle v. Searle, Colorado Court of Appeals, 1946 (“In reviewing an order affecting the custody of a child, appellate courts will make every reasonable presumption in favour of the action of the trial court”).

Reasoning of the Court

The Court found that the evidence strongly supported the appellant. There was no evidence that the appellant’s home endangered or impaired the children’s physical or mental health and development. To the contrary, the evidence showed that “the children were happy, healthy, well-adjusted children who were doing well in school and who were active in community activities”. Testimony from the principal of the girls’ school supported this finding, as did a report prepared by Delta County Family and Children’s Services.

The judge also visited the family and concluded the children were well cared for and that there were close relationships among the children, and between the children and the adults. Based on this evidence, the Court held that none of the statutory provisions proscribing a change in custody were triggered. Furthermore, the Court found that, even if the children would experience some sort of benefit from a change in custody, this benefit would not outweigh the confusion and anxiety that could come from such a change.

The Court noted that the record clearly showed that the appellant’s gender reassignment did not affect his relationship with his children. It also found that Colorado’s laws on child custody, Section 46-1-24(2), expressly prevented the Court from considering gender reassignment as a factor. For these reasons, the Court ruled that, in light of the evidence presented, Colorado’s custody statutes prevented the State from interfering with the original divorce decree and that in changing the custody order the Colorado trial court had abused its powers.

The Court reinstated the original divorce decree and the children remained in the custody of the appellant.

Christian v. Randall, Colorado Court of Appeals, United States (full text of judgment, PDF)

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