Divorce Law Journal

Published Opinion from Ky Supreme Court - Same Sex Partner Permitted to Intervene In Step-Father Adoption Case

A. H. V. W.R.L. AND M.L.

“Questions Presented: Family Law. Custody. Same-Sex Relationship. Step-Parent Adoption. Intervention of Right. Trial court properly
allowed the child’s biological mother’s ex-partner, who allegedly co-parented the child for seven years and has a pending custody
petition, to intervene in the step-parent adoption case that would have declared mother’s husband to be the child’s second legal parent.”

Same sex parent (“Amy”) filed a motion to intervene in a step-father’s adoption proceeding. The Appellate Court held that Amy did not have standing to intervene in the custody case appeals. The Supreme Court accepted discretionary review and reversed the Court of Appeals opinion and reinstated the trial court’s order allowing Amy to intervene.

The Supreme Court starts by noting that intervention and standing are two distinct concepts and were misapplied by the Court of Appeals. The Supreme Court does not clarify the distinction between standing and intervention as standing is not a requirement for intervention in an adopting proceeding.

The Supreme Court holds that Amy is entitled to intervention of right under CR 24.01 which allows anyone with a “cognizable legal interest” to intervene in an action. As Amy has an interest in her ongoing relationship with the child, supported by a plethora of facts about her participation in the child’s life, she clearly satisfies the requirements of CR 24.01. The Supreme Court concludes the trial court’s decision was logical and not clearly erroneous, noting courts are granted great discretion in both determining the facts in domestic cases and efficiently managing their dockets.

The Supreme Court also discuss CR 24.02 which allows permissive intervention. A trial court has the authority to allow intervention under CR 24.02 even in cases where the individual intervening fails to meet the standards set forth in CR 24.01.

See our prior post on the overturned Court of Appeals Opinion.

Digested by Elizabeth M. Howell.

 

Link to Western District of Ky Memorandum Opinion Recognizing Same-Sex Marriages Performed in Other States

Bourke v. Beshear

Standing to Pursue Child Custody- Same Sex Couples- Truman v. Lillard digest, Ky Court of Appeals

Truman v. Lillard, 2012-CA-000160-ME

Published:   Affirming   

County:  Fayette

Former life-partner of Child’s adoptive mother appealed from FC’s denial of her motion for joint custody, visitation and to set child support due to lack of standing.       

FACTS:

Truman and Lillard were in a marriage-like relationship for four years prior to Lillard obtaining temporary guardianship of her six-month-old nephew, Thomas.  Truman and Lillard had discussed plans to start a family, but at that time were waiting to do so as they were both full-time students.  However, because Thomas was her nephew and needed a healthy home, Lillard began the adoption process, which was finalized in 2008.  The couple was aware that they could not legally jointly adopt Thomas in Kentucky.  Although Truman assisted in raising Thomas as one of his “Mommies”, no steps were taken to establish parenting rights for her.  In February 2010, the couple broke up and Truman left the Mississippi home she shared with Lillard and Thomas.  After a domestic dispute in which Truman attempted to take Thomas, Lillard moved to Lexington with Thomas, obtained a restraining order against Truman, refused further communications from her,  and refused to allow her to spend any time with Thomas.  Truman filed a petition for joint custody and visitation and volunteered to pay child support.  In October 2010, the parties agreed to a visitation order.  Lillard subsequently relocated again, to Bowling Green, and sought a transfer of the case to Warren FC based on her new address, which was denied.  In November 2010, Fayette FC held a hearing based on whether Lillard had waived her superior right to custody pursuant to Mullins v. Picklesimer.  FC orally found she had not, though no written orders were entered.  In August 2011, Truman petitioned the court for a status hearing and for written orders on the waiver issue.  FC did so, finding Lillard had not waived her superior right and that Truman had no custodial rights, and denied Truman’s request for visitation and for a new trial.  Truman appealed, arguing that FC erred by:  1.  Failing to transfer the matter to Warren FC; 2.  Failing to make sufficient findings of fact on visitation; 3.  Incorrectly relying on Picklesimer regarding visitation; and 4.  Entering findings of fact not supported by the evidence. 

ANALYSIS:

CA disagreed with all of Truman’s contentions.  First, Truman’s argument regarding transfer to Warren FC was completely inconsistent with her actions in Fayette FC, and CA held she was judicially estopped from challenging FC’s action which was consistent with her requested relief. 

Regarding the sufficiency of findings on visitation, CA held that FC did make findings in this regard and that FC is not required to address every piece of evidence or argument by counsel for findings to be sufficient.  So long as FC’s findings reflect a good faith effort at fact-finding and complies with CR 52.01, the findings will be sufficient.  CA found that FC’s findings did so and were sufficient.

Next, CA addressed whether FC should have relied on Picklesimer on the visitation issue or if it should have applied the in loco parentis doctrine.  CA noted that this reliance was appropriate and that the in loco parentis doctrine has been replaced by the de facto custodian statute; thus, non-parents may attain standing to seek custody or visitation of a child only if they qualify as de facto custodians, if the legal parent has waived her superior right to custody, or if the parent is unfit. 

Lastly, CA disagreed with Truman’s contention that the findings of fact relative to custody were not supported by the evidence.  CA held, “Although we appreciate the substantial and significant relationship Truman had with Thomas, she was not his parent, she could not qualify as a de facto custodian, and he resided with his only parent, Lillard. … This case serves as an illustration of the exception to Mullins, where we distinguish a non-parent truly acting in the capacity as a parent from the many people who may love, care for and support a child . . . . Not every person who genuinely loves and cares for a child gains custodial rights; waiver requires significantly more. There was no error.

Affirmed.

Digested by Michelle Eisenmenger Mapes, Diana L. Skaggs + Associates  

Maxwell v. Maxwell, Ky Court of Appeals, Child Custody, Lesbian Mother

Maxwell v. Maxwell

No. 2012-CA-000224-ME

Published:  Opinion Reversing and Remanding

County:     Hardin

Angela Maxwell appeals the decision of the Hardin Family Court to award sole custody of her three children to their father, Robert Maxwell.

The parties were married in October, 1994 and three children were born to the marriage.  The parties separated in September, 2010 and Robert filed the petition for dissolution and moved for sole custody of the children.  Angela responded to the petition and asked for joint and shared custody.

In October, 2010, the parties entered into a “pre-temporary” agreed order providing for joint custody and alternating physical custody on a week-to-week basis.  The order also prohibited a non-family guest to stay overnight when the parent had physical custody of the children.

In March, 2011, a mutual restraining order was issued after motions were filed by both parties.  A settlement agreement was entered in January, 2011, reserving child-related issues.  A hearing on those matters was held in September, 2011. Robert requested joint custody and designation as primary residential custodian.  Angela requested joint custody pursuant to the current arrangement and that the prohibition on non-family guests spending the night during parenting time be lifted.

Witnesses included relatives, a teacher, a soccer coach, and the two older children.  The children were happy with the parenting time arrangement and both said they liked Angela’s friend, Angel.

The trial court’s order was entered January 5, 2012 awarding Robert sole custody with Angela’s visitation schedule set by the court.    The allotted parenting time was less than the minimum guidelines in the local rules.  Both parties were prohibited from cohabitating with another adult during the time they had physical possession of the children, unless they were married to that person.

The standard of review is whether the trial court’s factual findings are clearly erroneous.  The reviewing court determines whether the trial court applied the current law and whether the trial court abused its discretion.

Angela argued the family court erred by 1) considering factors unrelated to the best interests of the children, 2) the award of sole custody to Robert was erroneous and an abuse of discretion, 3) the court based its decision on inadmissible evidence, and 4) it was error to restrict the parties from cohabitating during parenting time. Robert countered that the court’s ruling was not made on Angela’s sexual orientation, was not an abuse of discretion, and was based on the best interests of the children in accordance with statutory factors.

The Court of Appeals applied the facts of the case to the statutory factors listed in KRS 403.270(2).  The focus of the family court’s decision was that Angela’s same-sex relationship was harmful to the children.  The Court of Appeals held that being a member of a same-sex partnership alone does not meet the criterion of sexual misconduct and to use her sexual orientation as a determinative factor violates Angela’s right to due process, equal protection and fundamental right to parent her children.  The trial court found that Angela’s relationship was not in the best interests of the children, but provided no factual findings in support.  Harm must have an evidentiary basis and cannot be assumed.

The issue of restricting the parties from cohabitating with a person to whom they are not married was to be retried on remand with the understanding that cohabitation of any party is a factor, but not dispositive on its own.  The family court’s decision should be based on the best interests of the children.

The order of the Hardin Circuit Court is reversed and remanded for proceedings consistent with the opinion.

Digested by Sandra G. Ragland, Diana L. Skaggs + Associates.

 

 

Mullins v. Picklesimer Opinion Modification

Mullins v. Picklesimer, The substance of the opinion remains unchanged.  The Kentucky Supreme Court modified the opinion to clarify two points:

1.   that “physical custody” of KRS 403.800 to KRS 403.880 does not require exclusive care and supervision; rather, where one renders care and supervision concurrently with another or on an equal time-sharing basis, that person would have “physical custody” of a child per KRS 403.800-403.880; and

2.   that though KRS 403.822 primarily addresses a court’s jurisdiction to make an initial custody determination, the statute also implicitly identifies those parties who may bring an action seeking initial custody of a child and so also addresses standing in initial child custody determinations. 

 Here are the inserted paragraphs:

 Page 8:

"As used in KRS 403.800 to KRS 403.880, "physical custody" means "physical care and supervision of a child ." KRS 403.800(14) . This statutory definition of "physical custody" does not require exclusive care and exclusive supervision.  Thus a person like Mullins, who for the requisite period of time performed all the traditional parental responsibilities, concurrently with another or on an equal time sharing basis, had "physical custody" under the provisions of KRS 403.800 et. seq."  

Page 9:

"Although KRS 403.822 directly addresses the issue of the court's jurisdiction to make an initial custody determination, by identifying the adult persons who must be present in the forum state for jurisdiction to arise (parent or person acting as a parent), the statute implicitly identifies those persons as parties who may bring an action seeking initial custody of the child . It would make little sense to confer jurisdiction to this state when only "a person acting as a parent" resides here, and not at the same time confer standing upon that person to assert initial custody of the child . Otherwise, the state would have jurisdiction of the matter without any resident of the state having standing to bring an action to assert initial custody in the forum. That would clearly be an unreasonable interpretation of the statute, and is one which we believe our legislature did not intend. Moreover, it would make little sense for a person acting as a parent to have standing only if there is a jurisdictional dispute about which is the proper forum state, but not to have standing when there is not a jurisdictional dispute. Again, this would produce an unreasonable result."

Family Law From Ky Supreme Court Today

There are no new published family law opinions. However, the prior opinion in Mullins v. Picklesimer was modified and a new opinion substituted. We'll have to study the new one, compare it to the prior one, and will post a revised digest if there is anything significant. We'll let you know.

Mullins v. Picklesimer, Ky. S. Ct., Waiver Of Biological Parent's Superior Right To Child Custody

Mullins v. Picklesimer, 2008-SC-000484-DGE

Issue:  Same-sex partnership custody case:  CR 60.02 relief; standing and waiver

Published:   Affirming in Part and Reversing in Part

County: Garrard

 

SC reviewed same-sex ex-partner’s standing to pursue joint custody of biological child of her former partner and former partner’s alleged waiver of superior right to custody of child.  

 

FACTS:

Picklesimer and Mullins were engaged in a 5 year lesbian relationship, during which time they lived together and decided to parent a child together.  The parties agreed that Picklesimer would be artificially inseminated.  They worked together to find a sperm donor that had characteristics closest to Mullins.  Mullins was present for the insemination of Picklesimer.  Mullins and her mother were present for the birth. The parties jointly made the decision regarding the child's surname, and the last name Picklesimer-Mullins was listed on the birth certificate.  Their child was born in 2005, and their relationship ended in 2006.  It is undisputed that both parties provided for the care and financial support of Child. Before the parties broke up, they entered an agreed order and judgment that established Mullins as a de facto custodian of the child and provided that the parties would share joint custody.  After the parties separated in February 2006 and until their relationship disintegrated even further in September 2006, the parties shared equal parenting time with the child.  Some time in September 2006, Picklesimer refused to allow Mullins to have any further contact with Child unless Mullins visited him at Picklesimer's home.  

 

PROCEDURAL HISTORY:

Picklesimer appealed a TC judgment that awarded joint custody of her minor son to Mullins.  Picklesimer argued to CA that the TC lacked jurisdiction and venue to enter custody orders, that Mullins lacked standing, and the TC erred in holding Picklesimer waived her superior right to custody.  On cross appeal, Mullins argued that the TC erred in invalidating the agreed judgment of joint custody entered by the two parties.  CA rejected Picklesimer's argument that TC lacked jurisdiction and venue. CA also rejected Mullins’ argument that TC erred in setting aside the agreed judgment of custody, agreeing with TC that the agreed judgment was invalid because Mullins did not qualify as a de facto custodian under KRS 403.270. However, CA reversed TC's finding that Picklesimer waived her superior right to custody of Child. Because CA adjudged that Mullins was not Child's de facto custodian and Picklesimer had not waived her superior right to custody, CA concluded that Mullins did not have standing to pursue custody of Child.

 

SC HOLDING AND ANALYSIS:

“We adjudge that the trial court properly granted CR 60 .02 relief regarding the parties' agreed judgment of custody on grounds that it was based on falsified evidence and fraud. We further adjudge that the trial court properly found that Appellant had standing to seek custody of the child and that the natural mother waived her superior right to sole custody of the child in favor of a joint custody arrangement with Appellant. Hence, we affirm the Court of Appeals in part as to the parties' agreed judgment of custody, and reverse in part as to its finding of no waiver and reinstate the judgment of the Garrard Circuit Court.”

 

STANDING

Prior to 2004, standing to bring a custody action was limited by KRS 403.240 to a parent, a de facto custodian of the child, or a person other than a parent only if the child is not in the physical custody of one of the parents.  However, the since-adopted UCCJEA grants standing to a nonparent who, acting as parent to the child, has physical custody of the child.  It therefore permits standing in a shared custody co-parenting situation, since there is no longer a requirement of physical custody to the exclusion of the parent, if the nonparent can meet one of the requirements of subsection (b) of KRS 403.800(13) - she has been awarded legal custody or claims a right to legal custody under Kentucky law.

 

In the present case, the child was conceived through artificial insemination and brought into the world upon agreement of the parties to parent the child together. It was undisputed that Mullins physically cared for and supervised Child from birth throughout the period the parties were together and for the five months thereafter when they shared custody. And she did so in the capacity of a parent, which is evidenced by her living as a family with the child and Picklesimer, the child calling her "momma," the child's hyphenated surname (Picklesimer-Mullins), the parties' attempt to confer parental rights on Mullins with the agreed judgment of custody, and Picklesimer continuing to allow Mullins to co-parent to the child for some five months after the parties' relationship dissolved. This would distinguish the nonparent acting as a parent to the child from a grandparent, a babysitter, or a boyfriend or girlfriend of the parent, who watched the child for the parent, but who was never intended by the parent to be doing so in the capacity of another parent. Further, Mullins claimed a right to legal custody of Child under both the agreed judgment of custody and pursuant to a waiver theory, satisfying the requirement of KRS 403.800(13)(b). Accordingly, we adjudge that Mullins has standing in this case to seek custody of Child.

 

AGREED JUDGMENT OF CUSTODY

SC agreed with CS that the assertion in the agreed judgment that Mullins was the child's primary caregiver and primary financial provider constituted both falsified evidence and fraud affecting the proceedings warranting relief from the judgment.

SC did not agree with Mullins that Picklesimer was not entitled to relief under CR 60.02 because she was a party to the fraud and thus had unclean hands. SC noted that the doctrine will not be applied to all misconduct, as when "the plaintiff has engaged in conduct less offensive than that of the defendant." While the evidence established that Picklesimer signed the agreement, voluntarily and clearly intended to confer custody rights on Mullins, it was Mullins' idea to have the agreed judgment drawn up by her attorney, and Picklesimer signed it without the benefit of her own counsel. Moreover, because the agreed judgment pertained to child custody, the equity of the parties was subordinate to the welfare of the child, and the judgment could not be permitted to stand if based on fraud or falsified evidence.

 

WAIVER

Mullins argued that CA erred in reversing TC’s finding that Picklesimer waived her superior right to custody. She maintains that CA substituted its findings for TC’s and misinterpreted the law relating to waiver.  Because Mullins could not qualify as the child's de facto custodian, the only way Mullins could establish custody rights to Child is if Picklesimer waived her superior custody rights.  Proof of waiver must be clear and convincing. Statements and supporting circumstances must be equivalent to an express waiver to meet the burden of proof.  These cases should be viewed on a case-by-case basis and no specific set of factors must be present in order to find there has been a waiver.  There can be a waiver of some part of custody rights demonstrating intent to co-parent a child with a nonparent. In this case, Picklesimer waived her superior right to sole custody of the child in favor of a joint custody arrangement with Mullins.  Specifically, Picklesimer waived her right to be the sole decision-maker regarding her child and the right to sole physical possession of the child. This is an absolute waiver of part of her superior custody rights as the natural parent of the child.  The recognition of the applicability of the doctrine of waiver in a child custody situation is legally justified as well as necessary in order to prevent the harm that inevitably results from the destruction of the bond that develops between the child and the nonparent who has raised the child as his or her own. The bond between a child and a co-parenting partner who is looked upon as another parent by the child cannot be said to be any less than the bond that develops between the child and a nonparent to whom the parent has relinquished full custody.

Picklesimer argued that because the agreement was declared invalid due to Mullins not having de facto custody status it cannot be considered by the court as evidence of waiver. SC disagreed. Even though the agreement was properly found to be invalid, it was relevant to show Picklesimer's intent to confer parental rights to Child on Mullins.

 

CUNNINGHAM, J., CONCURRING IN PARTAND DISSENTING IN PART:

KRS 405.020 and KRS 403.270, our custody statutes, provide standing in child custody claims only for parents and de facto custodians. Under the statutory scheme passed by our legislature, Appellant had neither standing nor the right to make a custody claim in this case. Neither did she have a claim under the long standing judicially imposed principle of waiver. Surrender of custody and separation are the critical lynchpins of the waiver concept. By not requiring separation from parent as a requirement of waiver, the majority introduces a new principle in custody cases which amounts to a partial waiver. This judicial engineering undermines the statutory protection of the parent and opens the door wide for all third parties who can show shared participation in child rearing. This new found rule of law will - in an age of working parents and shared nurturing - equally fit as many grandparents, uncles, aunts, neighbors, and even babysitters, as it does Appellant and others who may "co-parent" a child. We cannot, by judicial edict, just open wide the door and wave everyone in who wishes to parent a child .  The Due Process clause does not permit a State to infringe on the fundamental right of parents to make child rearing decisions simply because a state judge believes a better decision could be made.  

 

SCOTT, J., CONCURRING IN PART AND DISSENTING IN PART:

The new of theory of “waiver”— now "unhinged" from the former requirement of the child's significant physical separation from the parent—will ultimately enable step-parents to contest for custody of their step-children, even in short term marriages.

 

Digested by Michelle Eisenmenger Mapes, Diana L. Skaggs + Associates  

Kentucky Supreme Court Publishes Two Family Law Opinions Today

A deeply divided court, in Mullins v. Picklesimer, holds that mother waived her superior right of custody, thus permitting her same sex partner to have joint custody. The dissents worry that this "new found rule of law" will pave the way for grandparents, step-parents and other non-parents to seek custody.

Commonwealth, Cabinet for Health & Family Services, et al v. T.N.H, et al  concerns termination of parental rights of minor in CHFC custody. 

Digests of both to follow.

More On Stepparent-like Adoption

CLE: "Representing the Gay Client In Kentucky" Seminar Sponsored by Fayette County Bar Association, ACLU of Ky, and JustFund KY Education Project for Sept. 20, 2008. Details at Kentucky Law Review. Wonder what case they are going to be speaking about?

An editorial in this morning's Courier-Journal, Homophobia's victims is online here.

An AP report published in the Lexington Herald-Leader is here. It references step-parent like adoption in Indiana, which Marcia Oddi already posted about, of course, in her post at Indiana Law Blog Kentucky appeals court rejects adoption by lesbian couple.

Meanwhile, what about those missing court documents? Their omission from the file has nothing to do with the outcome of the case, but it certainly was unfortunate fodder to the lambaste of the lawyers. Hopefully there will be follow-up to get to the bottom of that.

Meanwhile, I continue to believe the law could have evolved to envelop the claims raised in this case without legislative action. I am mulling over a paper written by Naomi Cahn of George Washington University - Law School and June Carbone of the University of Missouri at Kansas City School of Law, Red Families v. Blue Families available at ssrn which I found through the Family Law Prof blog post Red State/ Blue State Conference. A quote from the abstract:
Finally, the article concludes that differences between red family and blue family systems are not frozen in place, but in transition, albeit at different speeds, from an older traditional (or red state) model to a newer system likely to reflect the blue states' later age of family formation. Family courts, whether they wish to be or not, are on the front lines of the culture wars. The legitimacy of their role depends on judicial ability to guide, diffuse, and manage cultural conflict, a role which is increasingly threatened by the partisan identification of cultural conflict.

S.J.L.S. v. T.L.S., Ky COA Stepparent-like Adoption

S.J.L.S. v. T.L.S., Kentucky Court of Appeals Opinion by Judge Acree, Judge Lambert concurring and Judge Keller concurring in result only, affirming in part, reversing in part and remanding.
As part of the life plan of two women, S gave birth to a child named “Z” by artificial insemination from a donor selected by T. Six weeks after the birth of the child in 2001 T filed a petition for permanent joint custody. S was unrepresented, signed a waiver and acknowledgement and an agreed order of permanent custody was entered.

In 2003 S and T split up and 6 months later T filed an adoption petition. On a family court case information sheet T represented she was a stepparent. Although unnecessary in a stepparent’s adoption, a guardian ad litem was requested and appointed and S and T entered into an adoption agreement that recited that it in no way terminated the parental rights of S. Although no pre-petition involvement of the Cabinet for Families and Children was obtained, the court clerk notified the cabinet upon filing the petition. The Cabinet objected by letter and the court and counsel were aware of the objection. The letters were removed by someone from the court record although a copy of one had been scanned by a court clerk and was part of the record in the court of appeals. Neither party nor the Cabinet took an appeal from the judgment of adoption.

In July 2005 S filed a CR 60.02 motion to vacate the custody and adoption judgment. The court acknowledged it lacked subject matter jurisdiction when both judgments were entered but believed that KRS 199.540(2) is an absolute bar to an attack on a judgment of adoption more than one year after its entry. Because the adoption could not be set aside, custodial arrangements were necessary and thus the trial court denied the CR 60.02 motion.

All of the following issues were addressed by the Court of Appeals in the 61 page opinion and each question was answered in the negative. Quotes from the opinion are in italics.

• Is T the stepparent of Z as indicated in the judgment of adoption?
In Procrustean fashion, the lawyers and family court in this case
tortured the facts of the relationships among T, S and Z to make them fit the
requirements of KRS 199.470(4)(a) and KRS 199.520(2), and then proceeded to
cut off the legs upon which such cases stand – the approval of the Cabinet, the very
agency delegated by our Legislature with authority to carry out its statutes and
underlying public policy regarding adoption....What occurred here amounted to “reinstituting by judicial fiat
common law marriage which by expressed public policy is not recognized....We cannot ignore – and the family court should not have
ignored – the fact that the parties' relationship “simply does not exist as a
‘marriage’ of any kind.”
• Does T’s relationship with S and Z present circumstances sufficiently extraordinary as to justify application of the legal fiction that T was Z’s stepparent?
“Legal fictions” have been frowned upon generally in Kentucky,
particularly when they are misused. They have been called “charades,”....Only where a statute is clearly ambiguous or where its operation leads to an absurd result, may a court use such legal devices as “legal fictions,” and then only for the purpose of carrying out the intent of the Legislature.
• Did the family court properly order the retention of S’s parental rights vis-à-vis Z contrary to the parental rights termination provision of KRS 199.520(2)?
More distressing to this Court than either the recognition of the
parties' relationship as a de facto common law marriage, or the legal
fictionalization of a stepparent-like status, is the universal failure in this case to
properly consider the effect that carrying through with such a ruse could have on
the relationship between Z and his biological mother, S. By pretending during the
adoption proceeding that T was S's spouse and therefore Z's stepparent, the family
court and the parties' original lawyers, including Z's guardian ad litem, put at risk
Z's only familial relationship legally recognizable in this record – the relationship
between himself and the woman who gave birth to him.
Was it proper or lawful for the family court to order the retention of
S's parental rights in direct contravention of KRS 199.520(2)? The question
answers itself, and the answer, clearly, is no....
Since enunciation of public policy is the domain of the Legislature,
any desired change in a legislatively expressed public policy must originate there
and not with the Judiciary....
By what artifice then, and to what end, may this Court sanction grants
of adoption by non-spouses and also avoid the operation of KRS 199.520(2)?...
Despite our agreeing with the notion “that the more familial bonds a
child has is generally better for the child, this court is not in a position to add
words and meaning to a statute that is clear on its face. We can only enforce the
statute as it is written.”...
Therefore, affirming the Judgment of Adoption will mean
that if S is to retain her parental rights with regard to Z, that retention must have a
legal basis other than the words contained in KRS 199.520(2).
• May a party waive the parental rights termination provision contained in KRS 199.520(2)?
The adoption and its effect on S's retention of parental rights are
inextricably related. Even if we held that S waived her right to object to the
adoption, we cannot treat S's reservation of parental rights as a waiver. The subject
statute, KRS 199.520(2), does not create a right personal to either party so as to
allow its waiver by either of them....
We find, as a matter of law, that S cannot waive the public policybased
requirement of KRS 199.520(2) that “[u]pon granting an adoption, all legal
relationship between the adopted child and the biological parents shall be
terminated[.]”
• Does estoppel apply here to maintain S’s parental rights contrary to the parental rights termination provision of KRS 199.520(2)?
The family court should have dispensed with the estoppel argument
by citation to Nussbaum v. General Acc., Fire & Life Assur. Corp., Ltd., of Perth,
Scotland, 238 Ky. 348, 38 S.W.2d 1 (Ky. 1931). Nussbaum holds that “[a]n
estoppel too is only available to a person who is h[er]self innocent and mislead
[sic] by the other party.”...
Additionally, where parties enter into an agreement with the intention
of avoiding the operation of “clear, legislative requirements, the legal
consequences of the statute cannot be avoided by estoppel.”
• Does the concept of “stepparent-like adoption” exist in harmony with Kentucky’s adoption laws?
No, no, and no.
The parties have used the term “stepparent-like” adoption in this case
to mean the adoption of a child by the same-sex partner of that child's biological
parent without the termination of the biological parent's parental rights.11
Philosophically speaking, if “stepparent-like” adoption, as a comprehensive and
acceptable extension of Kentucky's adoption laws, could somehow be incorporated
into our jurisprudence, the specific operation of KRS 199.520(2) terminating S's
parental rights could be avoided. In essence, the family court determined precisely that – that stepparent-like adoption can exist in harmony with our adoption laws,
specifically KRS 199.520(2). We disagree.
After discussing and dismissing all the foreign cases raised in support of the propriety of stepparent-like adoptions without termination of S's parental rights, the court concluded: However, we also find,
within the context of these unique facts, that S's parental rights were not terminated
by operation of KRS 199.520(2).
• Could a valid judgment of adoption be entered in this case without Cabinet consent?
While the court said initially that all these issues are answered in the negative, there was no separate discussion of this issue. However at the end of the opinion the Court said, We trust that this opinion has eliminated the possibility of future attempts at stepparent-like adoptions under our current law. However,
should similar circumstances ever present themselves again, it is our hope that the
Cabinet would exercise its right to intervene in the action for the proper purpose of
establishing the proceeding as adversarial and presenting its relevant position on
the law and the facts of the particular adoption case. Had the Cabinet done so in
this case, a timely appeal could have remedied the numerous errors in this case
before they became indelible.
• Is KRS 199.540(2) – the limitations statue relative to adoptions inapplicable where a judgment of adoption is void ab initio because the family court lacked subject matter jurisdiction to enter it?
Again, while the prelude says all that "no" applies to each of these issues, the opinion upheld the adoption only because of the one year limitation to contest it.
• If the adoption stands, are S’s parental rights terminated as required by KRS 199.520(2)?
In the discussion the court frames the issue and resolution as A Balancing of Competing Public Policies Necessitates S's Retention of Parental Rights
An erroneous judgment, once final, is no less binding than one that is correct in every way....Among the errors in this judgment is the family court's determination,
contrary to KRS 199.520(2), that S retained her parental rights as to Z. “The
strong and sensible policy of the law in favor of the finality of judgments has
historically been overcome only in the presence of the most compelling equities.”
Bishir v. Bishir, 698 S.W.2d 823, 826 (Ky. 1985). That policy was properly
expressed by our judicial branch19 to preclude parties to a judgment, and those in
privity with them, from relitigating the same issues. We believe that, by enacting
KRS 199.540(2), the Legislature intended not only to ratify this judicial expression
of policy, but to expand it in adoption cases, as a matter of public policy, to be
effective as to all persons without regard to their lack of participation in the
adoption proceeding itself.
However, the public policy expressed in KRS 199.540(2), as applied
to S's retention of parental rights in this case, directly conflicts with the public
policy expressed in KRS 199.520(2) that those same rights must terminate.
Resolution of this case, then, necessarily requires a balancing of these competing
public policies. We will do so, however, we also believe that a third public policy,
expressed in KRS 402.040(2) and Section 223A of Kentucky's Constitution
prohibiting same-sex marriage, has no place in our analysis. Our analysis would
result in an identical outcome if T had been S's heterosexual male partner.
While both expressions of public policy are equally significant, we
conclude under the facts of this case that equities weigh in favor of allowing this judgment of adoption, as erroneous as it is, to stand....
This opinion should not be interpreted as an invitation by other
practitioners, nor authorization of the family courts, to intentionally evade any
aspect of the adoption laws by replicating the facts or practice of this case. We
believe we have made it clear that this case should never have proceeded as far as
it has and trust that no others will.
• Did the family court properly deny S’s CR 60.02 motion in the custody case?
We have already held that S's CR 60.02 motion in the adoption case is
untimely because of the operation of KRS 199.540(2). But KRS 199.540(2) does
not apply to custody orders. Our consideration of the family court's denial of CR
60.02 relief in the custody matter remains.
The basis for that denial was “[S's] failure to file her motion in a
reasonable time; [her] full knowledge of all facts at the time the agreed order was
entered; and clean hands doctrine.” As previously noted, we review a lower court's
denial of relief pursuant to CR 60.02 for abuse of discretion.... In the custody
case, we believe the court abused its discretion.
The family court's order acknowledged that it lacked subject matter
jurisdiction when it entered the custody order. For reasons set forth in the family
court's order denying CR 60.02 relief, we agree.
A judgment entered by a court without subject matter jurisdiction is
void ab initio.... It is “a legal nullity, and a court has no
discretion in determining whether it should be set aside.” Foremost Ins. Co. v.
Whitaker, 892 S.W.2d 607, 610 (Ky.App. 1995). In addition, since subject matter
jurisdiction concerns the very nature and origins of a court's power to act at all, it
“cannot be born of waiver, consent or estoppel[,]” Nordike v. Nordike, 231 S.W.3d
733, 738 (Ky. 2007)(internal quotation marks and citation omitted).
Because “the question of subject matter jurisdiction may be raised at
any time and is open for the consideration of the reviewing court whenever it is
raised by any party,” Gullett v. Gullett, 992 S.W.2d 866, 869 (Ky.App. 1999), S
was entitled to challenge it when she did. And, since the family court had no
discretion with regard to setting that order aside, Foremost at 610, the exercise of
any discretion declining to do so was an obvious abuse of the court's discretion.
We therefore reverse the Jefferson Family Court's order denying S's motion to set
aside the custody order.
Upon remand Though
utilization of KRS 403.270 and the rest of Chapter 403 is not mandated, it provides
the family court with the best guidance for determining appropriate custody,
visitation and support, even in this unusual, we pray unique, case. The family
court may entertain a motion to modify the original petition in this case, or one or
both of the parties may initiate a new action in which to seek these determinations.
The courts concluding words were meant to be heard:
Legal Questions versus Political Questions; Justice in the Abstract versus Justice According to Law
We pause at this juncture to highlight the common element that runs
through all of the cases from the various jurisdictions addressing the general issue
of stepparent-like, second-parent, or similar adoptions. It is the same “elephant in
the room” in this case. The function of the Judiciary is to answer the legal
question whether “stepparent-like” adoptions are permitted under Kentucky law.
Courts are constitutionally prohibited from addressing the political question, “Why
not?” Furthermore, judges sitting on those courts are prohibited from allowing
their own abstract view of the political question to affect in any degree the proper
determination of the legal question.
It is not this or any court's role to judge whether the Legislature's
prohibition of same-sex marriage, or common law marriage, or bigamous marriage,
or polygamous marriage, is morally defensible or socially enlightened. Nor is it
this or any court's role, in the absence of constitutional repugnance, to craft any
means by which the legal consequences of such a prohibition may be negated or
avoided. It is simply the law. Nor does the fact that T and S are homosexual have any bearing
whatsoever on the void nature of this joint custody order and this judgment of
adoption.The merits and defects of both order and judgment exist regardless of
the parties' relationships, genetic makeup, pre-dispositions or personal choices.
The lawyers in this case obviously desired to affect the public policies
at play in this case that, in their view, negatively impact their clients. They would
have been perfectly justified in petitioning the Legislature, or encouraging their
clients to do so, for an amendment to the adoption laws that would permit an
unmarried person to adopt a non-spouse's child without terminating the nonspouse's
parental rights. But rather than taking this proper route to change, they
sought to achieve their goal through this branch of government. Their stratagem,
so clearly contrary to statute and public policy, could only succeed in a receptive
environment. The record tells us that Zeller found such an environment.
As the family court acknowledged, “stepparent-like” adoption had
been embraced by three or four divisions of Jefferson Family Court. According to
Zeller, judicial acceptance of her efforts came with a knowing “wink-wink, nodnod,
and look around[.]”Wherever this legal fiction has been used, its supposed benefactors were misled. Its proponents simply applied the fiction to evade, for a
single segment of our society, the public policy of the People of this
Commonwealth. To do so is constitutionally impermissible, regardless of the
identity of the group.
We take issue with any legal professional, and will reverse any court,
for exempting any person or group from the uniform application of our laws
merely because of their membership in a particular subset of society. Ky. Const §
1 (“All men [and women] are equal[.]”); Ky. Const § 3 (“All men are equal and no
grant of . . . privileges shall be made to any man or set of men[.]”). In short,
however, that is exactly what occurred here.
The fact that T and S are homosexual should have had no bearing on
the lawyers' representations of their clients, nor on the family court's application of
the law, at any stage of this proceeding. Unfortunately, the parties' sexuality
preference or some other unidentified factor such as sympathy for their plight,
impaired the way the legal professionals viewed the law.
Zeller, Gatewood and Kellerman unwisely participated in an adoption
by two people who were not even living together, to say nothing of the fact that
they were not married, or even committed, to one another. Would Gatewood have
thought it prudent to permit his client to consent to this adoption if T were actually
S's former husband? Would Kellerman also have failed to question Z's adoption
by a former stepfather who had already divorced her client's mother, thereby
risking the termination of the legal relationship between Z and S? We think not. It is significant that the legal professionals were all on the same page
here. Because these proceedings were carried out in “friendly suit” manner,
without the presentation of a countervailing legal position, and without even the
objective participation of the Cabinet, the parties lost all benefit of an otherwise
adversarial system. The court alone was left to question the legality of what the
parties and their lawyers sought. To the extent the family court did challenge
Zeller's theory, that challenge was inadequate.
However, with crowded dockets and limited resources, and relying to
a large degree on the attorneys to present the law and facts in conformity with CR
11, we tend to understand how the family court let down its guard. It may not have
been until attorney Zeller thanked the “family court judges who have so graciously
given to gay couples these rights” that the judge below realized what had occurred
in her court. When asked what Kentucky adoption law said about stepparent-like
adoption, too many professionals relied on the punchline of an old and bad
attorney joke and responded, “What do you want it to say?”
The Order Overruling Appellant's Motion
to Set Aside the Judgment of Adoption was AFFIRMED, and the Order Overruling
Appellant's Motion to Set Aside Custody Judgment was REVERSED. The order
awarding permanent joint custody of Z to S and T was VACATED as void ab initio.
The case was REMANDED for further orders.
Digested by Diana L. Skaggs, Diana L. Skaggs + Associates

Here Are The Facts Of S.J.L.S.; Full Digest To Follow

As part of the life plan of two women, S gave birth to a child named “Z” by artificial insemination from a donor selected by T. Six weeks after the birth of the child in 2001 T filed a petition for permanent joint custody. S was unrepresented, signed a waiver and acknowledgement and an agreed order of permanent custody was entered.

In 2003 S and T split up and 6 months later T filed an adoption petition. On a family court case information sheet T represented she was a stepparent. Although unnecessary in a stepparent’s adoption, a Guardian ad Litem was requested and appointed and S and T entered into an adoption agreement that recited that it in no way terminated the parental rights of S. This time S was represented by counsel. The GAL and both lawyers convinced the court in this non-adversarial proceeding the "stepparent-like" adoption was permissible, based on law from other jurisdictions. Although no pre-petition involvement of the Cabinet for Families and Children was obtained, the court clerk notified the cabinet upon filing the petition. The Cabinet objected by letter and the court and counsel were aware of the objection. The letters were removed by someone from the court record although a copy of one had been scanned by a court clerk and was part of the record in the court of appeals. Neither party nor the Cabinet took an appeal from the judgment of adoption.

In July 2005 S filed a CR 60.02 motion to vacate the custody and adoption judgment. The court acknowledged it lacked subject matter jurisdiction when both judgments were entered but believed that KRS 199.540(2) is an absolute bar to an attack on a judgment of adoption more than one year after its entry. Because the adoption could not be set aside, custodial arrangements were necessary and thus the trial court denied the CR 60.02 motion.

The end result was that the adoption was not set aside and S's parental rights were not terminated. The custody issue was remanded.

A full digest of the opinion of this case will follow. Meanwhile, the decision is online here.

Pick Your Headline: "Same-Sex Adoption Case Affirmed In Ky" or "Lawyers And Family Courts In Ky Better Not Ever Again Attempt Second Parent Adoption Without Legislative Change" (UPDATED)

Today the Kentucky Court of Appeals affirmed a trial court's refusal to set aside a same-sex adoption in S.J.L.S. v. T.L.S., but it is quite clear that is not the way the court would like the headline to read. In the exceedingly well-written 61 page opinion, like any great legal thriller, you don't learn until toward the end what the real result will be. But the message is loud and clear: do NOT try to do this in another case.

A first reading of the decision has left me with some very strong opinions. Some concern the role of advocates in advancing the law. You'll see a lot about CR11 in the opinion but little to nothing about the permissible "good faith argument for the extension, modification or reversal of existing law." Granted, there were ugly assertions of misconduct by counsel cited by the court, but upon a first reading I am not convinced they really impacted the outcome. It seemed they were highlighted to discourage other lawyers from ever pursuing such a cause of action.

Another angle of interest is the entire second parent adoption dimension. While the court emphasized that the opinion and rationale would have been the same had the parents been heterosexual I am not so sure. I have long believed that the best fact scenario to take to an appellate panel on the issue of second parent adoption would be a heterosexual adoption.

Beyond these words, I really need to reflect on this case. Reading it again will be a pleasure, it is that well crafted. I may even change my mind and not stick with any original notions. My bet is we'll be talking about this case for a long time. I doubt either mom will seek discretionary review; each has too much to lose with further review.

UPDATE:
I guess I was THINKING Rule 11 as I read the opinion, but upon second reading I have to tell you I was wrong about seeing a lot of that in this opinion. Advancing the law was mentioned but summarily dismissed as being without merit on these facts. After rigid adherence to the statutes, is interesting how S's parental rights were retained by a "balancing of public policies." A digest and discussion will follow. This case is not just a same-sex case, it hits home with heterosexual implications as well.

California To Permit Same-Sex Marriage (at least for now)

Click In Re Marriage and you'll see the 172 page opinion from the Supreme Court of California today. Marcia Oddi at Indiana Law Blog posts:

Here is a report by Bob Egelko of the San Francisco Chronicle on this morning's ruling. The story begins:

10:31 PDT SAN FRANCISCO -- Gays and lesbians have a constitutional right to marry in California, the state Supreme Court said today in a historic ruling that could be repudiated by the voters in November.

In a 4-3 decision, the justices said the state's ban on same-sex marriage violates the "fundamental constitutional right to form a family relationship." The ruling is likely to flood county courthouses with applications from couples newly eligible to marry when the decision takes effect in 30 days.

More:
The celebration could turn out to be short-lived, however. The court's decision could be overturned in November, when Californians are likely to vote on a state constitutional amendment banning same-sex marriages. Conservative religious organizations have submitted more than 1.1 million signatures on initiative petitions, and officials are working to determine if at least 694,354 of them are valid.

If the measure qualifies for the ballot and voters approve it, it will supersede today's ruling. The initiative does not say whether it would apply retroactively to annul marriages performed before November, an omission that would wind up before the courts.

Family Law Prof Blog highlighted this quote from the opinon, "In the present case, it is readily apparent that extending the designation of
marriage to same-sex couples clearly is more consistent with the probable
legislative intent than withholding that designation from both opposite-sex couples
and same-sex couples in favor of some other, uniform designation. In view of the
lengthy history of the use of the term “marriage” to describe the family
relationship here at issue, and the importance that both the supporters of the 1977
amendment to the marriage statutes and the electors who voted in favor of
Proposition 22 unquestionably attached to the designation of marriage, there can
be no doubt that extending the designation of marriage to same-sex couples, rather
than denying it to all couples, is the equal protection remedy that is most
consistent with our state’s general legislative policy and preference."

Picklesimer v. Mullins (Ky)

Picklesimer v. Mullins, __ S.W.3d. __ (Ky. App. 2008)
2007-CA-000086-ME and 2007-CA-000101-ME

Picklesimer and Mullins were engaged in a 5 year lesbian relationship, during which time they lived together and decided to parent a child together. The parties agreed that Picklesimer would be artificially inseminated. Their child was born in 2005, and their relationship ended in 2006. Before the parties broke up, they entered an agreed order and judgment that established Mullins as a de facto custodian of the child and provided that the parties would share joint custody. The order was entered in a neighboring county to avoid publicity in their own community. The TC entered the order without taking any evidence. No summons was issued, but neither party challenged the lack of notice. After the parties separated in February 2006 and until their relationship disintegrated even further in September 2006, the parties shared equal parenting time with the child.

Picklesimer appealed a TC judgment that awarded joint custody of her minor son to Mullins. Picklesimer argued that the TC lacked jurisdiction and venue to enter custody orders, that Mullins lacked standing, and the TC erred in holding Picklesimer waived her superior right to custody. On cross appeal, Mullins argued that the TC erred in invalidating the agreed judgment of joint custody entered by the two parties.

TC’s jurisdiction and venue to enter custody orders: CA held that Picklesimer had notice of the proceedings since she filed an entry of appearance and never challenged the agreed order establishing Mullins as a de facto custodian. CA also held that venue was waived when both parties filed pleadings with no objection to venue.

Mullins’ standing to pursue joint custody/ Picklesimer’s waiver of her superior right to cusody: A nonparent, who does not qualify as a de facto custodian, may seek custody of a child if the nonparent shows that 1) the parent is unfit by clear and convincing evidence, or 2) the parent has waived his/her superior right to custody. A finding of waiver requires a voluntary and intentional surrender or relinquishment of a known right. A court order granting a nonparent visitation does not constitute a waiver of the parent’s superior right to custody. As Picklesimer did not waive her superior right to custody of the child, Mullins had no standing to pursue custody.

TC error in invalidating the agreed judgment of joint custody: The judgment establishing Mullins as a de facto custodian was entered based on incorrect evidence. Mullins was never the primary caregiver and the primary financial provider for the child, as the statute requires. The pleadings were drafted to convince the TC that a hearing was not necessary on the matter. CA held that the pleadings and conduct constituted a fraud upon the court. The CA found that had the TC held a hearing, the TC would not have signed the order. The judgment declaring Mullins a de facto custodian is invalid.
Digested by Sarah Jost Nielsen, Diana L. Skaggs + Associates

Maryland Rejects Same Sex Marriage

All 224 pages of Maryland's highest court decision in Conaway v. Deane that there is no fundamental right to marry someone of the same sex, that same sex orientation is not a suspect or quasi-suspect class, that denial of same sex marriage is not a violation of equal protection and that denial of the right to marry someone of the same sex served a legitimate governmental objective can be found here.

Maine Supreme Court Rules Lesbian Couple May Adopt

The Family Law Prof Blog reports:

The Maine Supreme Judicial Court ruled unanimously today that state law does not preclude unmarried couples from jointly petitioning to adopt a child. The case involved a lesbian couple who had petitioned to adopt a 10-year-old girl and her 6-year-old brother, for whom the couple had been foster parents since 2001.

The court decided the case solely as a matter of statutory construction, reasoning that if it read the statute to prohibit joint petitions by unmarried persons, the statute would still clearly allow successive petitions by unmarried persons, leading to the same end result. "With this in mind, construing section 9-301 as prohibiting a joint petition by unmarried persons elevates form over substance to an illogical degree." In terms of reading the statute to effectuate the purposes of adoption law, the court noted that joint petitions serve the best interests of children in a variety of ways, by insuring continuity of care should one parent die, by enabling access to broader range of benefits from two parents rather than one, and "Most importantly, a joint adoption affords the adopted children the love, nurturing, and support of not one, but two parents."

Adoption of MA (Maine Supreme Court August 30, 2007)

The opinion is online.

I recently met with Christine Sun, an ACLU staff attorney, about our firm doing some pro bono appellate work and this was one issue we would like to see addressed in Kentucky. Same-sex adoption is legal in Indiana as we reported here, linking to an Indiana Law Blog post.

Divorce In Same Sex Marriage And Attack On No-Fault Divorce Laws

How states will deal with divorces between same-sex partners legally married in another state or country is an issue family lawyers are watching and busy planning strategies. I doubt anyone thought that meant dealing with an attack on no-fault divorce as advanced by "the nationally known conservative lawyer, James Bopp Jr., who received $15,000 in public money to write the friend-of-the-court brief" in a Rhode Island case, as reported by Providence Journal Staff writer Edward Fitzpatrick, online here.

More On Whether Same Sex Relationships Terminate Maintenance

New York Divorce Report directs us to posts about recent decisions in Virginia, Oregon and California.

Birth Certificate Does Not Require Name Of Mother In Md. Surrogacy Case

The 56 page Maryland decision in In Re Roberto d B. rendered last week can be found here. KRISTEN WYATT, Associated Press, Wednesday, May 16, 2007 writes:

A surrogate mother who has no genetic connection to the baby she is carrying
does not have to be listed as the mother on a birth certificate, Maryland's
highest court ruled Wednesday.

The case arose from twins born in the Washington suburbs in 2001. The woman
who carried the twins for a father used an egg donor and had no genetic
relationship to them. Both she and the father did not want her listed as the
mother.

In a 4-3 decision, the Maryland Court of Appeals ruled that the babies are
not required to have a mother listed on birth papers.

"Maryland's breaking ground here," said Dorrance Dickens, a Washington
lawyer who argued the case for the father and the surrogate mother.

Though judges routinely allow blank spaces for mothers on birth certificates
in surrogate cases, Dickens said Maryland's court is the first to use a
state Equal Rights Amendment to make the decision.

Court Orders Sperm Donor To Pay Support

In an article by Paula Reed Ward today, the Pittsburgh Post-Gazette reports Court orders sperm donor to pay support, Death of father complicates complex case.
Some quotes:

The Pennsylvania Superior Court, in a recent decision, ordered that a sperm donor who had a close relationship with the two children he fathered must pay child support.

It is an interesting decision for a number of reasons.

First of all, Pennsylvania has no laws that address reproductive issues such as this, which resulted in a first-ever court ruling that recognizes three adults as parents and having financial responsibilities for the same children.

In addition, the sperm donor was not anonymous but a friend of the biological mother, and he eventually sought partial custody of the children.

To further complicate matters, the donor died while the court case was pending.

The article goes on to report these comments from attorneys:

Cases like these -- and others involving surrogacy and similar issues -- could more easily be settled, all the lawyers said, if the state Legislature would write laws to address them.

Pennsylvania is one of only a handful of states that do not have laws to address the parental rights of sperm donors.

Harry Tindall, a family law attorney in Houston, who helped write the Uniform Parentage Act, was outraged by the Superior Court's decision in the Jacob case.

"Donors are not parents. Why should we hurt someone for trying to do good?" he asked.

But more than that, he was frustrated, like the others, at the lack of legislation.

"Pennsylvania won't pass laws on this issue, so courts don't have any guidance," he said. "Shame on a legislature that doesn't have the values to address this issue."

Mr. Kalikow, who chairs the subcommittee on assisted reproductive technologies under the Joint State Government Commission, hopes state lawmakers will soon do that.

He noted that the state does have laws related to reproductive issues in dog breeding.

Mr. Kalikow believes there are no state laws related to these questions with humans because the issues are too emotional.

"It implicates these very sensitive, social, religious and then, political, issues," he said.

Those include the idea of extraordinary conception -- like sperm donation and in vitro fertilization -- as well as encouraging single parenthood and the possibilities of same-sex couples adopting, Mr. Kalikow said.

"There is no way to isolate from religious and social conservatives concerns that this is promoting unconventional family building," he said. "You're going to get a lot of heat."

Thanks to Marcia Oddi of the Indiana Law Blog for letting me know of this article.

Same Sex Cohabitation Terminates Maintenance Notwithstanding Gay Marriage Ban

One of the questions we pondered as states passed DOMAs and constitutional amendments banning same-sex marriage was what effect such would have on divorces between heterosexuals. Larry O'Dell,
Associated Press Writer, Richmond, Va. wrote about a recent Virginia Court of Appeals ruling, Stroud v. Stroud in which same-sex cohabitation terminated a contractual obligation to pay maintenance. His story is here. Some excerpts:

University of Richmond law professor Carl Tobias said the appeals court seemed to be treating same-sex couples the same as heterosexual couples--but only in the narrow analysis of contract law, not the broader public policy context.

Chris Freund, spokesman for conservative Family Foundation of Virginia, said the ruling proves that opponents of last year's constitutional amendment prohibiting gay marriages and civil unions were wrong in claiming the measure would interfere with private contract rights.

"Today's decision is simply about a contract between two people and has nothing to do with how the Commonwealth of Virginia defines or recognizes marriage," he said.

But David Spratt, former chairman of the Virginia Bar Association's Domestic Relations Section, said the ruling could have more far-reaching consequences depending on how this area of the law evolves.

"The legislature certainly does not recognize same-sex relationships as anything--they don't even recognize the capacity of same-sex couples to contract," said Spratt, now a legal rhetoric professor at American University, Washington College of Law. "So the fact that a court is saying a relationship between same-sex couples can be analogous to marriage is important."

He noted that Virginia law defines adultery as sexual intercourse between a married person and someone of the opposite sex. By recognizing same-sex cohabitation, the court could provide the impetus to change the adultery law to cover homosexual acts, Spratt suggested. Such legislation died in the session that ended Saturday.

The gay-rights group Equality Virginia, which opposed the so-called "marriage amendment" that was approved by voters in November, had no immediate response to Tuesday's ruling.

Italian Government Approves Bill to Grant Legal Rights to Cohabitants

From The Family Law Prof Blog: Italian Government Approves Bill to Grant Legal Rights to Cohabitants. Whether their parliment will pass it appears to be a coin toss.

Legal Rights Of Three Parents Over One Child Recognized By Ontario Court of Appeals

The Court of Appeals in Ontario ruled that three parents can have parental rights over one child . Between A.A., Appellant and B.B. and C.C., Appellees. The background of the case is reported in Jurist.

A Canadian child can legally have three parents - two mothers and a father. The case before the court involved a lesbian couple, together since 1990, one of whom was the biological mother of the five-year-old child, and a biological father who was listed on the child's birth certificate. All three individuals were active in the child's life and the women were not simply willing to adopt the boy because it would mean the father would lose his legal status as a parent. Ontario Justice Marc Rosenberg said depriving all three from legal parental roles would be "contrary to (the child's) best interests" and stressed the importance of giving the non-biological mother authority to make decisions for the child in the event of the biological mother's death.

Reuters has more.
Hmm. The non-bio mom could not adopt in Kentucky if she wanted, and the bio dad on the birth certificate would be on the hook even if he had no interest in the child.

Same-Sex Custody Jurisdiction

In an important decision last week, Janet Miller-Jenkins v. Lisa Miller-Jenkins, the Virginia Court of Appeals held that Virginia must give full faith and credit under the federal Parental Kidnapping Prevention Act to a custody determination made by a Vermont court growing out of a Vermont civil union. The opinion determined that DOMA did not create an exception to the PKPA and that both statutes must be given effect.

B.F. v. T.D., 194 S.W.3d 310 (Ky., 2006)

Issue and Holding:
Whether one who is not a parent but who has nevertheless participated substantially in the support and rearing of a child for a significant period of time has standing to claim a right of custody or visitation upon discontinuance of the cohabitational relationship with the parent. The Court held no, such person has no standing.

Facts:
B.F. and T.D. were in a cohabitational, same-sex, relationship for about eight years. They adopted a daughter, but only T.D. was the adoptive parent due to the parties’ uncertainty of the law with respect to same-sex couples jointly adopting a child. The child lived with the couple for six years, after which the couple discontinued their relationship.
B.F. asserted that she was a de facto custodian of the child; however, the trial court found that B.F. did not meet the requirements of Kentucky law for de facto custodian status. The Court of Appeals affirmed. The Supreme Court granted discretionary review.

Analysis:
KRS 403.420 limits standing to claim a right of custody to 1) a parent, 2) a de facto custodian, and 3) a person other than a parent only if the child is not in the physical custody of one of the parents. Since B.F. is not a parent and the child remained in the custody of her mother, T.D., at the time the custody proceeding began, B.F.’s only option was to claim de facto custodian status.
KRS 403.270 defines de facto custodian as someone who has been shown by clear and convincing evidence to have been the primary caregiver for and financial supporter of a child. B.F. was the primary financial supporter of the child. However, T.D. was the child’s primary caregiver.
The Court held that the trial court’s ruling that B.F. was not the primary caregiver was not clearly erroneous. Testimony by B.F. confirmed that T.D. was the primary caregiver. As a result, B.F. did not meet her burden of proof. Therefore, the Court affirmed the decision below.

Gay Men, Lesbians and the Kids They are Making and Raising, Sort of Together

Gay Donor or Gay Dad? by John Bowe is The New York Times Magazine November 19, 2006 cover story under the headline An Extended Nuclear Family? . "Gay men and lesbians are having babies - and redefining fatherhood, commitment and what a family can be." The entire article is online and worth a read.

New Jersey Same Sex Marriage

What concerned me when I read the news stories about the New Jersey same-sex marriage case was that it was a 4-3 decision. I was worried that the court was so split on the rights due gay partners, that any change in balance of the composition of government would easily upend the decision. I am pleased to report that my angst was misplaced. Here's the decision, Mark Lewis and Dennis Winslow, et al. v. Gwendolyn L. Harris We have posted on many same-sex issues on this blog (check categories for all), but our most in-depth one is here.
The Family Law Blog reports, "New Jersey's highest court on Wednesday guaranteed gay couples the same rights as married heterosexuals, but left it up to state lawmakers to decide if such unions can be called marriage. "Times and attitudes have changed," the New Jersey Supreme Court said in a nuanced 90-page ruling certain to fuel America's culture wars ahead of November 7 elections, when eight states will vote on same-sex marriage laws. Advocates on both sides declared varying degrees of victory and disappointment on the latest twist in a battle that has divided the country over issues of gay culture and morality."

Same-Sex Marriage

UPDATE:
TRENTON, New Jersey (CNN) "The New Jersey Supreme Court ruled Wednesday that the state's constitution gives gay and lesbian couples all the rights of married heterosexual couples.
But the court left it to the state legislature to decide what to call the relationship.
It gave lawmakers 180 days to either include gay and lesbian couples in the state's existing marriage laws or grant those rights under the title civil unions."
Forbes:"New Jersey's highest court opened the door Wednesday to making the state the second in the nation to allow gay marriage, ruling that lawmakers must offer homosexuals either marriage or something like it, such as civil unions.
In a ruling that fell short of what either side wanted or feared, the state Supreme Court declared 4-3 that homosexual couples are entitled to the same rights as heterosexual ones. The justices gave lawmakers 180 days to rewrite the laws.
The ruling is similar to the 1999 high-court ruling in Vermont that led the state to create civil unions, which confer all of the rights and benefits available to married couples under state law."
The Family Law Prof Blog, posted last week on Same-Sex Marriage Ballot Questions from a New York Times Article by Kirk Johnson, "The debate over same-sex marriage was a black-or-white proposition two years ago when voters in 11 states barred gay couples from marrying. But this year shades of gray are everywhere, as eight more states consider similar ballot measures. Some of the proposed bans are struggling in the polls, and the issue of same-sex marriage itself has largely failed to rouse conservative voters. In some cases, other issues, like the war in Iraq and ethics in Washington, have seized voters’ attention. But the biggest change, people on both sides of the issue say, is that supporters of same-sex marriage this year are likely to be as mobilized as the opponents."
Today, there will be a New Jersey court ruling on the issue:
By THE ASSOCIATED PRESS
Published: October 25, 2006
MOUNT LAUREL, N.J. (AP) -- New Jersey could become the nation's gay wedding chapel should the state's highest court rule in favor of same-sex marriages, adversaries on the issue agree.
The New Jersey Supreme Court is poised to release its highly anticipated decision Wednesday in a case brought by seven gay couples who say the state constitution allows them to marry, said Winnie Comfort, a spokeswoman for the state judiciary.
New Jersey is one of only five states with neither a law nor a state constitutional amendment blocking same-sex marriage. As a result, the state is more likely than others to allow gays to wed, said advocacy groups on both sides.
Only Massachusetts -- by virtue of a 2003 ruling from that state's top court -- allows gay marriages.
Proponents and opponents from across the country are watching the case closely.
''New Jersey is a stepping stone,'' said Matt Daniels, president of the Virginia-based Alliance for Marriage, a group pushing for an amendment to the federal Constitution to outlaw same-sex marriage. ''It's not about New Jersey.''
From a practical standpoint, the Massachusetts court decision made little impact nationally because the state has a law barring out-of-state couples from wedding there if their marriages would not be recognized in their home states.
New Jersey has no such law.
People on both sides of the issue expect a victory for same-sex unions would make New Jersey a destination for gay couples from around the country who want to get married. Some of those couples could return home and sue to have their marriages recognized.

Partnership Packages To Protect Gay Couples Are Complicated and Expensive

Law.com reports partnership packages to protect gay couples are complicated and expensive.

ABA Finally Opposes Discrimination On Basis Of Gender Identity

At the ABA meeting in Hawaii last week the following resolution was passed:
"RESOLVED, That the American Bar Association urges the Federal
government, the states and territories, and local governments to enact
legislation prohibiting discrimination on the basis of actual or
perceived gender identity or expression in employment, housing and
public accommodations."
The passage of the resolution means that the ABA can now advocate on
this issue.

Same-Sex Adoption Legal in Indiana

Same-sex adoptions are legal in Indiana, as Indiana Supreme Court declines to review an Indiana Court of Appeals decision. The Indiana Law Blog has an extensive report on the issue.
Comment: In Kentucky we are reduced to encouraging our "brain drain" by advising clients to move across the river.

Civil Union Partners' Custody Dispute To Be Decided in VT per PKPA and UCCJA; DOMA Does Not Trump

The Vermont Supreme Court decided a jurisdictional custody dispute between partners to a Vermont civil union, which revolved around the Parental Kidnapping Protection Act and the Uniform Child Custody Jurisdiction Act. The court rejected the argument that the federal Defense of Marriage Act might supersede either of those laws. Boston.com reports "The unanimous ruling in Vermont conflicts with a series of decisions in Virginia courts, which held that that state's anti-gay marriage laws controlled the case. Vermont Justice John Dooley wrote, though, that it's Vermont's laws that control the case because the women involved in the dispute were legally joined in a civil union in 2000 and that means Vermont family law governs their 2003 separation and subsequent child custody disagreement. A lawyer representing opponents of same-sex marriage said the dispute undoubtedly will have to be resolved by the U.S. Supreme Court."
UPDATE:
Law - Washington Post editorial provides clarity on Vermont-Virginia dispute is the headline from the Indiana Law Blog."A Washington Post editorial today cuts to the essence of the Vermont-Virginia visitation dispute. A paragraph: As the Vermont Supreme Court understood, this dispute isn't about whether Virginia is bound to honor same-sex unions. (The federal Defense of Marriage Act protects Virginia from that supposedly frightful consequence.) It's about the application of a federal law designed to help states -- and children -- avoid the sort of ugly tug of war that has ensnared Isabella here. Once one state's court has properly started hearing a case, the law provides, other states should stay out. Otherwise, parents who don't like the custody deal they got the first time could shop around for friendlier courts."The Indiana Law Blog also links to the August 5th NY Times report, written by Adam Liptak, on the Vermont Supreme Court ruling, and to the blog, How Appealing, whioh links to the Vermont Supreme Court ruling.

Same Sex Marriage Ban Upheld in Washington State

Jeanne Hannah posted an article about the Washington State supreme court's 5-4 decision today banning same-sex marriage on Updates in Michigan Family Law. This article contains links to the majority opinion, 2 concurring opinions, the dissent and 2 opinions concurring in the dissent.

UPDATE: Indiana Law Blog also posts on the case and links to one of its prior posts giving a state-by-state on where same-sex marriage battles stand throughout the country.

More Family Court News From Last Week

Add Nebraska and Tennessee to the list of states whose courts have upheld same-sex marriage bans. Source: Family Law Prof Blog.

Kentucky Supreme Court Rules Same-Sex Mom Cannot Be Defacto Custodian Because She Was Not Primary Caregiver Under KY Statute

The same-sex custody case decided by the Kentucky Supreme Court is front page, headline news in the Courier-Journal. The Court of Appeals decision in B.F. v. T.D was digested here, and we will post yesterday's Supreme Court Opinion and a digest of it shortly.

Update: Here is the linked 7-0 Opinion of the Court by Chief Justice Lambert in B.F. v. T.D., 2005 SC 000557-DG.

Update: Brief for Appellant, Brief for Appellee, and Appellant's Reply Brief.

Update: I have decided not to digest this case just yet. It is not final. It is a short opinion that has been digested many other places on the web. You can read the opinion at the link above. The facts have already been posted here. I will wait to follow all the discussion and any motions that may be filed, and then we'll talk about what it means not only for same-sex parents, but grandparents and others who consider themselves to be defacto parents.

Blonde Justice Includes Louisville Divorce Same Sex Marriage Post in Blawg Review #61

"A lucidly written, intelligent analysis of the legal issues implicated in the debate over same sex marriage on Louisville Divorce" caught my eye at Online Guide to Mediation. That led to the site hosting this week's Blawg Review #61, Blonde Justice, where our posting Same Sex Marriage Issue in Congress, Again was included as part of the review of the week. Don't you have to love a name like "Blonde Justice"? And, when writing about such a divisive and emotionally charged issue as same-sex marriage, especially in a state that quick-triggered a constitutional amendment, I can't tell you how good it feels to have someone call the analysis "lucid" and "intelligent."

Same-sex issues have been posted frequently here, but not for ideological reasons; I'm as straight as straight can be. The definition of family is evolving, however, and it is highly important that society consider the numerous types of families that are raising children, and that our law protect both partners in these relationships as well as their children. And, these issues are in the news constantly. Glad others outside the state appreciated the message.

It will be fun taking future looks at the Blonde Justice Blog as well as her collaborators on the Blawg Review, Woman of the Law and Not Guilty.

Finally, we'll be hosting Blawg Review on November 27, 2006. We're looking forward to having all our planned work in place well before then, and making the Blawg Review over-the-top outstanding (or at least as great as a blawg which will be nine months old at the time can be)!

State Constitutional Amendments Banning Same-Sex Marriage May Impact Domestic Violence Statutes and Unmarried Women

From The Family Law Prof's Blog: Commentary: Do State Constitutional Bans on Same-Sex Marriage Impact Domestic Violence Statutes and Unmarried Women?
and
Another Ohio Appellate Court Holds Domestic Violence Statute Unconstitutional under Ohio's Defense of Marriage Amendment

Same Sex Marriage Issue in Congress, Again

The discussion of same sex marriage to date has focused on religious based preservation of the family, claims of gay bashing, threats to families, and accusations that a few judges and opportunistic mayors have decided they were above the law. The issue of same sex marriage is far more complex and before more polls are taken, votes cast in our legislatures or congressional action taken, we need to consider thoughtfully many more facets of the difficult problems facing families.
The American Bar Association adopted a resolution urging Congress to oppose a federal constitutional amendment. The ABA has not taken a position pro or con on whether gay marriage should be recognized, to my knowledge. The American Academy of Matrimonial Lawyers discussed the issue, and what position, if any should be taken, at its mid-year meeting in March, 2004 and decided that further research and debate was needed before adopting a position. Subsequently, it has taken the position that same sex marriage should be permitted. As a family lawyer who is a member of both organizations, I have been privileged to observe, participate in, and be enlightened by the critical analysis of the law and the principled positions articulated. When the hysteria is removed from the

"Gay Marriage Looms as 'Battle of Our Times'"

Look at today's Christian Science Monitor for a perspective on this issue. As Congress takes it up this month, we will post more.

More On Same Sex Adoption in Indiana

More on Same Sex Adoption from the Indiana Law Blog:

 

Ind. Decisions - More on: AG asks Supreme Court to hear same-sex adoption question

Same Sex Custody in Kentucky,B.F. v. T.D.; 2005 WL 857093

No wonder I couldn't find this case in a prior post; it was still in the draft stage pending ruling by the Kentucky Supreme Court on discretionary review, although we did refer to it in a story on the Supreme Court elections in Kentucky. As a general rule, we intend only to publish cases that are final with S.W.3d cites. With the U.S. Supreme Court rulling in Britain v. Carvin,___S. Ct. ___(2006) 2006WL271809, May 15, 2006, its pending status is again newsworthy:

B.F. v. T.D.; 2005 WL 857093
Not final - discretionary review granted by Kentucky Supreme
Court in custody case between same sex parents, qualification
as de facto custodian and constitutional right to cross-examination.

This case involved same sex parents. Because Kentucky law does not permit joint adoption by same sex couples, T.D. alone adopted the child. T.D. became the sole "natural parent" but both mothers raised the child and contributed to the child's financial, emotional and physical care. B.F provided the majority of the financial support while T.D. was more involved with the child's daily activities. When the relationship dissolved, T.D. left the home taking the child with her and refused to allow B.F. to have contact. B.F. filed a petition seeking joint custody and visitation.

Judge Garvey granted B.F. temporary, supervised visitation and scheduled a hearing solely on the issue of whether B.F. qualified as a de facto custodian. The court limited the hearing to two hours and refused counsel's request for cross-examination.

The Court of Appeals affirmed that two hours was sufficient to establish de facto custodianship because of the limited elements outlined in KRS 403.270.

Similarly, the Court of Appeals affirmed the judge's refusal of her request for cross examination, holding that the constitutional rights for confrontation is only guaranteed in criminal cases, CR 43 does not mention the right to cross-examination and KRE 611 only states that a party "may" be cross-examined.

The Court of Appeals also affirmed the trial court finding that B.F. did not qualify as a de facto custodian because Consalvi v. Cawood held that to qualify as a de facto custodian an individual must be the primary caregiver.

Same Sex Parents Custody Standing in U.S. Supreme Court

We first saw the BIG news of the day at The Art of Divorce blog which linked to an AP story reporting on the U.S. Supreme Court's refusal to block a lesbian woman from pursuing a custody claim to a child conceived by her partner through artificial donor insemination. The case arises from Washington state, and the state court opinion holding there is a common law right of defacto parents to pursue custody is linked here. We don't yet have the U.S. Supreme Court opinion, but it's all over the news, the International Herald Tribune, Seattle Post Intelligence, and you can subscribe to the latest with Google Alerts.
It was interesting to see that Courtney Joslin wrote an amicus brief at the Washington State Supreme Court level. She is with the National Center of Lesbian Rights and is counsel, pro hac vice, in the case pending before the Kentucky Supreme Court, which we digested previously and which is posted below. Maybe now that the U.S. Supreme Court has issued its opinion, the Kentucky pending matter will be rebriefed or reargued? We'll report more after reviewing the U.S. Supreme Court case.

Same Sex Adoption and Joint Adoption by Unmarried Couples in Indiana

The Indiana Law Blog posts thoughtful excerpts from an editorial in today's Fort Wayne News Sentinel concerning adoption by same sex couples.
The Indiana Law Blog also reports today that the Indiana Supreme Court has been asked to review a decision permitting joint adoption by an unmarried couple, citing conflicting lower court rulings