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FEATURE: LGBT cal questions about his or her role in the parent's unfit life. Moreover, in cases of true unfitness, the parties are likely to find themselves litigating in dependency, neglect, and abuse court rather than resolving their private differences as to child rearing. 10 So, to acquire standing to pursue custody and timesharing, the nonparent will most likely need to prove that the biological or adoptive parent has waived his or her superior right to custody. Crucially, the biological or adoptive parent need not waive the entirety of his or her parental rights. Mullins, 317 S.W.3d at 579. Unlike the de facto claim, facts showing the co-parenting and cooperation of the parties actually enhance rather than preclude a waiver claim. The party seeking standing must prove that the biological or adoptive parent waived his or her "right to be the sole decision-maker regarding [the] child and the right to sole physical possession of the child." Id. The Supreme Court's opinion in Mullins is a road map of the proof required. The parties' attempts to convey legal rights upon the non-parent during their relationship – such as signing a co-parenting agreement, seeking a joint custody order, or nominating one another as the child's guardian in an estate plan – will be relevant to show the legal parent's intent waive his or her custody rights. Id. at 581 Day-to-day facts about the child's life - such as financial support, a hyphenated last name, or calling the non-parent "momma" – are also relevant and admissible. Id. at 580. Ultimately, the trial court will look for evidence that the child considers the non-parent his or B&B; • 1.14 her parent and that the child's legal parent played an active, integral role in forming this relationship. Once the former partner of the child's legal parent has established standing to seek custody, the court must then determine custody and timesharing/visitation in accordance with the child's best interest. As outlined above, this must be done without undue regard for either party's sexual orientation. Note that even this exhaustive process does not make the non-parent a legal parent of the child. For instance, the child will not inherit from the nonparent custodian under the laws of intestacy. However, the non-parent is able to maintain a parenting relationship with the child by exercising custody and timesharing. Mullins also did not address the possibility of a child support obligation between former samesex partners. In Truman v. Lillard, supra, the party seeking standing offered to pay child support to the child's legal parent, but she failed to prove waiver as discussed above, so that issue did not reach the Court of Appeals. The family court's authority to order the non-parent partner to pay child support to the legal parent is not at all clear. No statutory or common-law authority requires a non-parent to financially support the legal children of another, absent perhaps an enforceable contract to do so. Perversely, the legal parent has a duty to support his or her child and can be ordered to pay child support to the child's custodian, regardless of whether that custodian is a parent. See Graham & Keller, West's Kentucky Practice, Domestic Relations § 14.27 (3d ed. 2008). This further illustrates the inequity and frustration caused by a system of laws that continues to treat one partner as "parent" and one as non-parent custodian. Ross T. Ewing is an attorney at Gess Mattingly & Atchison, P.S.C., and focuses his practice on domestic relations law and estate planning. He received his J.D. from the University of Kentucky College of Law and served as a law clerk for the recently retired Judge Jo Ann Wise in Fayette Family Court. Ewing is past chairperson of the Fayette County Bar Association (FCBA) Domestic Relations Section and was recognized in 2010 as Attorney of the Year by the FCBA Pro Bono Program. He is also a member of the National LGBT Bar Association's Family Law Institute. 1 CONCLUSION Recent developments in case law have made it easier for trial courts to respect and maintain the parent-child relationship for gay and lesbian parents in child custody litigation. However, those changes do not permit both members of a same-sex couple to be legal parents of a child they raise together. Serious legislative reform will be needed to make that happen. Until that occurs, family law practitioners and judges must tread carefully through several chapters of KRS to preserve these children's emotional and psychological bonds with both their legal parent and that parent's samesex partner. 2 3 4 5 6 Note that no published case law addresses a custody determination involving a parent who explicitly identifies as bisexual. The court in Maxwell spoke of the constitutional impressibility of making a determination solely on the basis of "sexual orientation." Id. at 888-89. Black's Law Dictionary defines "sexual orientation" as "A person's predisposition or inclination toward a particular type of sexual activity or behavior; heterosexuality, homosexuality, or bisexuality." Black's Law Dictionary 653 (3d. pocket ed. 2006). A selfidentified bisexual parent should be able to successfully argue the irrelevance of his or her sexual orientation in making a custody determination. The Opinion is silent as to the issue of child support. The dubiousness of this designation after Pennington v. Marcum, 266 S.W.3d 759 (Ky. 2008), and the implementation of the Family Court Rules of Practice and Procedure is outside the scope of this article but worth noting. When parties share joint custody, each of them has "timesharing" with the children; when one party has sole custody, the other party has "visitation" with the children. Pennington v. Marcum, 266 S.W.3d 759, 768 (Ky. 2008). The "best interest of the child" standard applies in numerous other statutes. See, e.g., KRS 403.320 (visitation); KRS 199.520 (adoption); KRS 620.140 (disposition of dependency, neglect, and abuse cases); KRS 625.090 (involuntary termination of parental rights). In some instances, such as in termination of parental rights, other factors are listed. Whether they are additional or alternative is not clear. More often, the phrase appears on its own. For transgender parents, the impact is not as clear. M.B. v. D.W., 236 S.W.3d 31 (Ky.App. 2007) (upholding father's gender transition as basis for