Bench & Bar

JAN 2014

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.

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years, three years, and three months. Suppose all three children have the same adoptive parent, and suppose that parent frustrates the non-parent's access to the children immediately upon their break-up, depriving the non-parent of physical custody of the children. The non- parent would have standing to pursue custody and timesharing of the two older children but not the youngest. FORENSIC PSYCHOLOGY SERVICES EXPERTISE • • • • Criminal responsibility • • Disability Evaluations EXPERIENCE • • • Competence to stand trial Personal injury evaluations Independent psychological examination 35 years experience Over 50 court appearances Special interest in criminal cases involving mental condition at the time of the incident Ha well F. • Performed more than 500 of t , .D. these evaluations Expert opinion offered to defense or prosecution Board Certified Clinical Psychologist 343 859.276.1836 Ave., #300 Lexi gto , KY 40504 11 finding emotional injury to children and terminating his parental rights), is only five years old and has not been addressed on this issue in any other published opinion. Moreover, the Maxwell court spoke only of "sexual orientation," a concept that is distinct from "gender identity," a term developed in anti-discrimination legislation and litigation. 7 Andrew Wolfson, First 'Gay Divorce' Attempted in Kentucky, Louisville Courrier-Journal, Nov. 2, 2013, http://www.courier-journal.com/article/20131102/NEWS10/311020032. 8 At the time of this writing, they are: California, Cal. Fam. Code § 2320(b); Delaware, Del. Code Ann. tit. 13, § 216; Minnesota, Minn. Stat. § 518.07; Vermont, Vt. Stat. Ann. tit. 15, § 592(b)-(c); Washington D.C., D.C. Code § 16-902(b). Canada has as similar rule. Civil Marriage Act, SC 2005, c 33, s 7. Some states with civil unions or domestic partnerships maintain a similar rule. They are: Colorado, Colo. Rev. Stat. § 14-15115; Illinois, 750 Ill. Comp. Stat. 75/45; Vermont, Vt. Stat. Ann. tit. 15 § 1206(b). 9 KRS 403.800 et seq. 10 Del. Code Ann. tit. 13 § 216; see also 750 Ill. Comp. Stat. 75/45 (applies to civil unions). 11 The U.C.C.J.E.A. determines jurisdiction for visitation as well as custody. KRS 403.800(3) and (4). 12 See S.J.L.S. v. T.L.S., 265 S.W.3d 804 (Ky.App. 2008), a thorough discussion of which is outside the scope of this article. 13 KRS Chapter 406. Kentucky is one of only five states not to have adopted any iteration of the modern Uniform Parentage Act. Id. at Table of Jurisdictions. 14 This is further exacerbated by the gender-specific language of KRS 213.046 et seq., which operates to prevent the issuance of a Kentucky birth certificate to two parents of the same gender. 15 As the Court of Appeals clarified, "the in loco parentis doctrine is no longer applicable in these matters," having been superseded by the de facto custodian statute. Id. at 868. 16 The application of this six-month rule is currently before the Kentucky Supreme Court in Coffey v. Wethington, 2012-CI-721-DE. The court heard oral arguments on Nov. 13, 2013, on the construction of 403.800(13). The Court of Appeals ruled that the all persons relying on this provision to seek custody of a child must have had physical custody of that child for six months prior to filing a petition. The appellants in this case urge that the more natural reading of the statute requires the petitioner to either have physical custody at the time of filing or have had it for six months within the past year but lost it prior to filing. Interested readers should look for an opinion in 2014. 17 KRS 403.800(13). This six-month rule exemplifies the difficulty in calling one partner a non-parent. Consider, for example, a committed same-sex couple splitting after 10 years together, with three children ages six B&B; • 1.14

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