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January 28, 2010

Kentucky Supreme Court recognizes nonbio mom in stunning opinion

By Nancy Polikoff

In one of the best and most straightforward court opinions I have ever read on the subject, the Kentucky Supreme Court last week ruled, in a 4-3 decision, that a nonbiological mom was entitled to joint custody of the son she planned for and raised with her former partner. The opinion, Mullins v. Picklesimer, reads as a beacon of light shining through the obfuscation courts all too often bring to the actual lives of lesbian couples and their children.

Arminta Mullins and Phyllis Picklesimer had a baby. They selected a semen donor who resembled Mullins, and Picklesimer was inseminated and bore the child. Mullins and her mother were present at the child's birth. The child was premature and spent two months in neo-natal intensive care. Both moms attended him. They named him Zachary Alexander Picklesimer-Mullins. Once Zachary came home, both moms took leave to care for him, and when they both returned to work, Mullins' mother cared for him while the moms were at work. Both women provided care and financial support. The child called Mullins "momma." He considered both women his parents, even according to Picklesimer's testimony.

When the child was less than a year old, the couple filed custody papers granting a judgment of custody to Mullins on the basis that she was the child's de facto custodian. The couple split up a few months later, and they continued to co-parent for several more months, until Picklesimer refused to allow Mullins to see the child. Mullins filed a petition for joint custody.

So. It turned out that Mullins did not meet the statutory criteria for a de facto custodian because Kentucky does not recognize that status if the parent and de facto parent are actually parenting together. Therefore, the court order the couple had obtained was invalid. Nonetheless, the Kentucky Supreme Court found that Mullins was entitled to joint custody.

First, she had standing to file because the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA), adopted in Kentucky and almost all states, allows "a person acting as a parent" to file, and it defines that to mean a person who "has [or within the last six months has had] physical custody of the child and .... claims a right to legal custody under the law of this state." The court interpreted this to permit standing in a shared custody situation; Mullins did not have to have physical custody to the exclusion of Picklesimer. Because so many states have the UCCJEA, this portion of the case has the potential for impact beyond Kentucky. The court was clear that the specific facts in this type of family situation differed from circumstances involving nonparents such as a grandparent, babysitter, or boyfriend or girlfriend of the parent.

Turning to the statutory standard for awarding custody to Mullins, the court said that a parent has a superior right unless the parent is unfit (not relevant here) or "has waived [her] superior right to custody by clear and convincing evidence." And, in the most significant part of the opinion, the court ruled that the law of waiver of superior custody rights includes partial waiver that gives a child "another parent in addition to the natural parent." "In this case," the court wrote, "Picklesimer waived her superior right to sole custody of the child in favor of a joint custody arrangement with Mullins....What Picklesimer waived...was her right to be the sole decision-maker regarding her child and the right to sole physical possession of the child."

The court continued with what might be some of my favorite sentences ever in an opinion on this subject. It said the doctrine of partial waiver was both legally justified and "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." The focus, according to the court, should be on "whether the legal parent has voluntarily chosen to create a family unit and to cede to the third party a sufficiently significant amount of parental responsibility and decision-making authority to create a parent-like relationship with his or her child."

The Kentucky trial court had awarded Mullins joint custody. The intermediate appeals court had reversed. The effect of the Kentucky Supreme Court's decision reversing the appeals court is that the trial court order goes into effect. Zachary has his two moms back.

This opinion is stunning. The first obvious reason is that it is from Kentucky, a state not known for being gay-friendly. Beyond that, however, it seems to me that the majority totally understood the family this couple created, and it understood it without the friend-of-the-court briefs customarily filed in such cases by LGBT legal groups and mainstrean mental health organizations like the American Psychological Association. The biological mother created a two-parent family; she did cede part of the right she gets from her biological connection to the child to her partner. She did it every bit as much as a married woman who has a child with a husband using donor sperm. The court specifically said that Mullins cared for Zachary "in the capacity of a parent." The child, although only 18 months old when the trial took place, knew he had two parents. And so did the majority of the Kentucky Supreme Court.

In other cases, even when the non-bio mom has been successful, the courts often hedge. They come up with a list of factors the non-bio mom must meet. They act squeamish, ever guarding against the possibility of opening the door too wide to actual non-parents. Sometimes they qualify the victory by allowing only visitation rights, not custody. This court saw exactly how this family was created and functioned and was not at all concerned about its ruling going beyond a family so obviously created in this fashion. One of the dissenting judges expressed the fear that step-parents, even after short marriages, would be able to contest custody of their step-children. I don't see that at all. The majority describes this family first by the couple's decision to bring a child into the world through donor insemination and to parent that child together. The majority makes its ruling seem like simple common sense. Which it is.

cross-posted from Beyond (Straight and Gay) Marriage



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