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.       


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. 


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
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.


Digested by Michelle Eisenmenger
, Diana L. Skaggs + Associates