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

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

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.  



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.  



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.



“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.”



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.



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.



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.



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.  



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  

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