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GAY AND LESBIAN PARENTS IN KENTUCKY FEATURE: LGBT 8 By: Ross T. Ewing, Esq. B&B; • 1.14 INTRODUCTION As Kentucky and the nation discuss and debate same-sex marriage, many family law practitioners find themselves facing a more immediate issue. A growing number of Kentucky same-sex couples raise children together, and like their heterosexual counterparts, a significant percentage of these parents will find themselves litigating child custody and/or timesharing at some point. This article will address two issues important to these parents and Kentucky attorneys: the sexual orientation of parties in custody disputes generally and the procedural hurdles to making a custody determination upon the dissolution of a same-sex partnership. Both issues have seen significant recent developments in case law, and more may be on the way. SEXUAL ORIENTATION OF A PARENT IN CUSTODY DETERMINATIONS Gay and lesbian Kentuckians may find themselves in custody litigation in a variety of settings, and their sexual orientation should be not a dispositive factor in any of them. A gay or lesbian parent1 may find his or her sexual orientation alleged to be relevant to determining custody in an action to dissolve his/her heterosexual marriage, in a dispute with a former samesex partner, or in an action by a third party, such as a dependency, neglect, or abuse action or an action by a relative to be declared a de facto custodian. In any of these instances, recent Kentucky case law makes clear that the parent's sexual orientation cannot, on its own, form a legal basis for denying that parent custody of his or her child(ren). In Maxwell v. Maxwell, 382 S.W.3d 892 (Ky.App. 2012), Robert and Angela Maxwell divorced after a 16-year marriage that produced three children. Id. at 892. At some point unspecified in the record, Angela entered into a committed relationship with another woman. Pending a final trial, the parties, by agreement, shared joint custody of the children and shared time with them equally, on a week-to-week basis. Id. The parties resolved all of their property issues outside of court but adjudicated the issues of custody and timesharing in a final hearing involving nine witnesses.2 Id. at 893-94. Robert asked the court to award joint custody and name him the children's "primary residential custodian."3 Id. at 894. Angela asked the court to award the parties joint custody and to continue the parties' previously agreed-to week-toweek timesharing. Id. After extensive testimony by the parties, their two older children, and other acquaintances and family members, the trial court awarded sole custody of the children to Robert, set a mini- mal visitation4 schedule for Angela that fell below the guidelines set by local rules, and enjoined both parties from cohabiting with another adult outside of marriage during their time with the children. Id. at 895. Angela appealed, and the Court of Appeals reversed, finding that the family court erred in relying exclusively or excessively on Angela's sexual orientation when making its custody determination. Using Angela's sexual orientation as the sole determinative factor violated her constitutional rights to due process and equal protection, as well as her fundamental right to parent. Id. at 899. Any custody determination must be made after evaluating all relevant factors, including those outlined in KRS 403.270(2).5 The delineated factors are not an exclusive list. However, the court "shall not consider conduct of a proposed custodian that does not affect his relationship with the child." KRS 403.270(3). Moreover, the court must give equal weight to both parents. KRS 403.270(2). In Maxwell, the family court cited to the factors listed in KRS 403.270(2) but did not make specific findings as to any of them. Instead, the family court focused on Angela's same-sex relationship and determined that it was harmful to the children. Id. at 897. In so doing, the family court relied not upon specific testimony but upon prior case law suggesting that the court may consider the misconduct of a proposed custodian if the court concludes "that such misconduct has affected, or is likely to affect, the children adversely." Krug v. Krug, 647 S.W.2d 790, 793 (Ky. 1990). The Court of Appeals found the family court's reliance on Krug misplaced. Ultimately, the court concluded "that being a member of a same-sex partnership alone does not meet the criterion for sexual misconduct." Id. at 898. Stated differently, "KRS 403.270(3) does not allow sexual orientation to be a determining factor unless there is a direct negative impact on the chil-