Same-sex parents, after separation, had joint custody and an agreed parenting-time schedule for their two minor children, twins with autism. Appellee moved the trial court to allow her to move from Lexington, Kentucky to St. Joseph, Missouri area. The court granted her motion allowing relocation finding Missouri had better services for autistic children.

The Court of Appeals remanded the case for further proceedings, concluding that the trial court failed to address whether or not the relocation would serve the children’s best interests. While the trial court looked to services that might be available in Missouri it did not consider or compare the services the children are actually utilizing in Lexington. Moreover, the evidence presented about services available to the children did not relate specifically to them, was from varying counties in Missouri, and did not identify the actual benefit of the service to the children. Additionally, while the court found that relocation would benefit the Appellee, there was no finding it would benefit the children themselves.

Digested by Elizabeth M. Howell

The post Published Child Relocation Opinion from Ky Court of Appeals appeared first on Goldberg Simpson - Family Law Group.

“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

The post Published Opinion from Ky Supreme Court – Same Sex Partner Permitted to Intervene In Step-Father Adoption Case appeared first on Goldberg Simpson - Family Law Group.

Bourke v. Beshear

The post Link to Western District of Ky Memorandum Opinion Recognizing Same-Sex Marriages Performed in Other States appeared first on Goldberg Simpson - Family Law Group.

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 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  

The post Standing to Pursue Child Custody- Same Sex Couples- Truman v. Lillard digest, Ky Court of Appeals appeared first on Goldberg Simpson - Family Law Group.

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.

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.

The post Maxwell v. Maxwell, Ky Court of Appeals, Child Custody, Lesbian Mother appeared first on Goldberg Simpson - Family Law Group.

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."

The post Mullins v. Picklesimer Opinion Modification appeared first on Goldberg Simpson - Family Law Group.

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.

The post Family Law From Ky Supreme Court Today appeared first on Goldberg Simpson - Family Law Group.

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  

The post Mullins v. Picklesimer, Ky. S. Ct., Waiver Of Biological Parent’s Superior Right To Child Custody appeared first on Goldberg Simpson - Family Law Group.

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.

The post Kentucky Supreme Court Publishes Two Family Law Opinions Today appeared first on Goldberg Simpson - Family Law Group.

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.

The post More On Stepparent-like Adoption appeared first on Goldberg Simpson - Family Law Group.