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

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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.

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