Catching Up, II: Kentucky Lesbian Custody Case

While I am in catch up mode and while I am discussing lesbian custody cases, I figured I should reach back and note this one from Kentucky.   As is so often the case, you can also read about this case on Professor Art Leonard’s excellent blog.

This case is from Kentucky.   Where yesterday’s case is currently pending, this one is decided (at least by the mid-level appeallate court).   It’s not a decision that makes me happy.

Ernestine Tilley and Michelle Kilgore were a lesbian couple.   (I just hate the cases about parental status that begin this this invocation.)   They began living together in the mid-1990s.   They wanted to raise children.  They used IVF.  As a result,  Kilgore gave birth to two children who are now ten and six.

The couple separated in 2007 and Tilley went to court in order to maintain her relationship with the kids.   Kilgore responded that Tilley had not recognizable legal relationship with the children and hence, was not entitled to be in court at all.   In this opinion, the appellate court agrees. 

The court begins by observing that Kilgore gave birth to both children and is the biological mother of both.  (I assume what the latter phrase means is that Kilgore is genetically related to the children as well as having given birth to them.)  Tilley, by contrast, is a “non-parent.”      The only ways she can gain access are by showing that she is a de facto parent, by showing that Kilgore is unfit, or by showing that Kilgore waived her rights.

The court concludes that Tilley cannot qualify on any of these grounds.   To her credit, Tilley does not assert that Kilgore is unfit.   The court finds Kilgore did not waive her rights as a parent and that Tilley does not meet the Kentucky test for de facto parent.

The de facto discussion is important to examine.    At its core, a de facto argument is one in favor of legal recognition of a person who has functioned as a parent.   De facto arguments have been critical for lesbian co-mothers who are otherwise without legal rights–essentially those who do not complete second-parent adoptions.   The law on de facto parentage varies from state to state in several regards–whether the courts recognize such a doctrine, how an individual qualifies for that status, and what rights the status brings, for example.

The Kentucky court concludes that Tilley is not a de facto parent.   Under Kentucky law, a de facto parent must be both the primary caretaker and financial supporter for a child.   The children in question had no primary caretaker at all, since both women raised the children.    Hence, there was no way for Tilley to be a de facto parent.

Neither did Kilgore waive her superior claim to parental rights.    Again, the fact that the women were parenting together ends up undermining Tilley.   Kilgore did not cede her place.  And the execution of a power or attorney allowing Tilley to make certain medical decisions was seen simply as a limited permission.

It’s clear, after this case, that the doctrine of de facto parent in Kentucky is a cramped one.    It’s unlikely to be of much use to future lesbian mothers.   The opinion does suggest that an agreement showing the necessary waiver of rights could be drafted and signed, however.


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