The Bench & Bar magazine is published to provide members of the KBA with information that will increase their knowledge of the law, improve the practice of law, and assist in improving the quality of legal services for the citizenry.
Issue link: https://kentuckybenchandbar.epubxp.com/i/245872
Pivotally, the court also specified that the threat of teasing or bullying of the children on account of one parent's sexual orientation is not a basis for denying that parent custody. Id. at 899 (citing Palmore v. Sidoti, 466 U.S. 429 (1984)). The court admonished Kentucky's family courts that the U.S. Constitution does not tolerate a custody determination based on the private biases of others. Id. In both analyses – Angela's alleged "misconduct" in her committed relationship to another woman and the alleged harm to the children by potential teasing – the Court of Appeals' message was clear. "Harm to these children must have an evidentiary basis and cannot be assumed." Id. at 899. For the trial bench and for practitioners, this is key. Of course there will be cases in which the specific conduct of a parent who happens to be gay or lesbian warrants sole custody to another parent or party under the appropriate factors in KRS 403.270(2). But more often those factors will suggest – as they do in the majority of all custody cases – that the child's best interests require that he or she maintain a custodial relationship with both parents, regardless of their sexual orientations. Practitioners must make their case with specific, admissible evidence, and trial courts must determine custody in the children's best interest, as determined by the relevant factors, with factual findings supported by ample admissible evidence. After Maxwell, both bench and bar must do so without sole regard for one party's sexual orientation. Note that while the court in this case only addressed custody, the visitation statute is one of several that employ the "best interests of the child" standard analyzed in the court's opinion. KRS 403.320(3). See also Drury v. Drury, 32 S.W.3d 521, 524 (Ky.App. 2000). Thus, the Maxwell analysis – that a parent's sexual orientation is not relevant absent proof of specific harm to the child – should apply to visitation and timesharing determination. CUSTODY DISPUTES BETWEEN FORMER SAME-SEX PARTNERS Less clear is the path to a child custody determination in a dispute between former same-sex partners. This is true regardless of whether the couple ever entered into a legal marriage, civil union, or other similar legal relationship. Of course, same-sex partners cannot presently marry in Kentucky. Ky. Const. § 233A; KRS 402.020(1)(d). Likewise, the prevailing view of judges and practitioners is that these provisions prevent Kentucky courts from dissolving same-sex marriages entered into in other jurisdictions. No published case law addresses this point, and a case testing the proposition was recently filed in Jefferson County.7 However, that case involves no minor children, and even an appellate opinion addressing the court's ability to dissolve that marriage will leave unanswered questions about the legal rights of the spouses to custody of children born to either parent during the marriage. Despite the availability of an out-of-state divorce for some married same-sex couples, child custody determinations for those couples will continue to be made in Kentucky. A handful of states and the District of Columbia retain jurisdiction over the same-sex marriages of non-residents for the limited purposes of dissolving those marriages, should such dissolution not be possible in the state of the parties' domicile.8 However, even in those states the dissolving court probably lacks jurisdiction to enter a child custody order. The Uniform Child Custody Jurisdiction and Enforcement Act (U.C.C.J.E.A.), 9 enacted by all fifty states and the District of Columbia, is the "exclusive jurisdictional basis for making a child custody determination." KRS 403.822(2). U.C.C.J.E.A. jurisdiction hinges upon the child's "home state," as defined by statute. Unless the parties are recent transplants, Kentucky will be deemed the child's home state for U.C.C.J.E.A. purposes. KRS 403.800(7). This grants Kentucky exclusive child custody jurisdiction. Kentucky likely cannot decline this jurisdiction under the strict standards articulated in KRS 403.822(b). Moreover, even if Kentucky could properly decline jurisdiction, the state of the couple's marriage lacks the significant connections to the family and the substantial evidence about the case necessary to acquire jurisdiction. KRS 403.822(b). See Gullett v. Gullett, 992 S.W.2d 866 (Ky.App. 1999) (unborn child's pre-natal presence in the state does not constitute "significant connection" for purposes of acquiring U.C.C.J.E.A. jurisdiction); Graham & Keller, West's Kentucky Practice, Domestic Relations § 14.27 (3d ed. 2008) (examples and discussion of "significant connection" and "substantial evidence"). Some states, such as Delaware, require parties entering into a marriage or civil union to consent to the dissolution of the marriage or union in that state.10 Even in those states, though, the U.C.C.J.E.A. is the sole mechanism for acquiring child custody jurisdiction. See 13 Del. Code § 1920(b). The parties' consent to divorce jurisdiction does not alter the home-state analysis of the U.C.C.J.E.A., because personal jurisdiction over a child and/or his parents is "not necessary or sufficient to make a child custody determination." KRS 403.822(3). Accordingly, former same-sex partners in Kentucky seeking a court order on custody and timesharing11 will be litigating here and applying Kentucky law. A perfect storm of three state laws ensures that the parties will always be on unequal footing. The marriage prohibitions cited above, the lack of second-parent adoption,12 and the outmoded provisions of our 1964 Uniform Paternity Act13 ensure that one partner will legally be a non-parent to any children raised by the couple. Regardless of any psychological or emotional bonds the child forms with the partner of his or her legal parent, that person will be a non-parent for purposes of custody and timesharing.14 As non-parents, the first hurdle these litigants face is standing to seek custody. "Under our current statutory scheme, non-parents may attain standing to seek custody or visitation of a child only if they qualify as de facto custodians, if the parent has waived her superior right to custody, or the parent is conclusively determined to be unfit." Truman v. Lillard, 404 S.W.3d 863, 868 (Ky.App. 2013) (citing Mullins v. Picklesimer, 317 S.W.3d 569, 578 (Ky. 2010)).15 The claimant must also be "a person acting as a parent" as defined in the U.C.C.J.E.A. Mullins, 317 S.W.3d at 575. In this context, that means the person must have physical custody of the child or have had it for a period of six months16 within the year immediately prior to the filing of the petition. Id.17 The same-sex partner of a child's legal parent is unlikely to meet the criteria to be declared de facto custodians. This is primarily because that statute requires that the claimant have acted in place of the child's legal parent(s) and not as a co-parent with the child's legal parent(s). Mullins, 317 S.W.3d at 574; Brumfield v. Stinson, 368 S.W.3d 116 (Ky.App. 2012). This is simply very unlikely to occur during any intact relationship. Unfitness is similarly unlikely to help the same-sex partner of the child's legal parent attain standing to pursue custody or visitation. Only in extreme cases will the proposed custodian have the proof necessary to allege unfitness, and even then he or she will have to overcome logiB&B; • 1.14 9 dren." Id. The court's use of the phrase "sexual orientation" in addition to "same-sex relationship" makes it clear that trial courts cannot hang a custody determination upon a parent's homosexuality, regardless of that parent's relationship status.6