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

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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 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.


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

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