News in Brief: Lesbian Mothers Win One in Kentucky–

On January 21 the Kentucky Supreme Court decided an important  new case, awarding joint custody to a lesbian non-biological mother.   You can read the actual opinion as well as this news account or the report of it on Professor Nancy Polikoff’s blog. 

The facts are typical of a lot of the de facto parent/functional parent cases I’ve discussed.  Phyllis Picklesimer and Arminta Mullins lived together in a lesbian relationship.  They wanted to have a child. 

They chose a sperm donor who resembled Mullins.   Picklesimer was inseminated, became pregnant and gave birth to Zachary Picklesimer-Mullins on May 31, 2005.   Mullins and her mother were present at the birth and the women chose to use the hyphenated last name on the birth certificate.

Zachary was born prematurely and so spent a couple of months in the hospital, during which time both women cared for him.  Both women used parental leave to help care for him in his infancy.   When they both went back to work, Mullins’ mother cared for him.     When Zachary started to talk, he called the women “mommy” and “momma.” 

Mullins had no legal status in Kentucky and this worried her.  In January, 2006 they went to a lawyer.  They signed documents recognizing Mullins as a de facto custodian.   The lawyer also prepared a petition for custody and an agreed judgment of custody.  A Kentucky trial court entered that judgment in February 2006.  (The point of all this was to secure Mullins’ relationship with the child, not to divest Picklesimer of her right to custody.)    

The parties split up in April of the same year, though they continued to share custody of Zachary until September.  At that point, Picklesimer refused to allow further contact between Zachary and Mullins.   Litigation soon followed.  Although the law in Kentucky is somewhat different from what I’ve written about in other states, in essence Picklesimer asserted that Mullins had no right to seek custody of the child. 

Under Kentucky law, a de facto custodian cannot be co-parenting with a legal parent.   She or he must be the sole parent.  Since it was quite clear that Mullins and Picklesimer co-parented, Mullins could not be a de facto custodian.  Thus, the prepared documents turned out to be ineffective.   Picklesimer contended that this should be the end of the matter.

The Kentucky Supreme Court disagreed.  First, the court found that the Uniform Child Custody Jurisdiction  and Enforcement Act (UCCJEA)  conferred standing on Mullins, because she was “a person acting as a parent.”  This gave Mullins the right to go to court to seek custody.   This holding alone is significant, because the UCCJEA has been enacted by 48 states, though other state’s won’t be bound by the Kentucky court’s interpretation of the statute.    

The court went on to discuss Mullins claim for custody.  Because Picklesimer was a parent and Mullins was not, Picklesimer began with a superior right of custody.   The only way Mullins could prevail would be by showing Picklesimer had waived her superior right.  

The court concluded that Picklesimer had waived her rights as it was clear from the evidence that the parties had agreed to jointly raise the child.   The court justified its decision in order to prevent harm to the child.  

“The recognition of the applicability of the doctrine of waiver in a child custody situation is legally justified as well as necessary “in order to prevent the harm that inevitably results from the destruction of the bond that develops” between the child and the nonparent who has raised the child as his or her own. [citation omitted.] The bond between a child and a co-parenting partner who is looked upon as another parent by the child cannot be said to be any less than the bond that develops between the child and a nonparent to whom the parent has relinquished full custody.”

The court’s reasoning joins two strong arguments together.   Picklesimer and Mullins planned for and created a family together.   Thus, recognizing Mullins’ relationship with Zachary is justified by equity (it’s fair to hold Picklesimer to the agreement she made, on which Mullins relied) and also by the state’s concern with the  interests of the child (because Zachary bonded with both women.)   These are separate but obviously related arguments–in carrying out their plan, the women both demonstrated their agreement and created the child’s reality.      

I’ll stop for now with one parting note:   While the case is clearly a victory for Mullins and ensures her continuing relationship with the child, she is not recognized as a legal parent.   I’m not sure what to make of that.


18 responses to “News in Brief: Lesbian Mothers Win One in Kentucky–

  1. as both of the parties in the lawsuit were lesbians, the “lesbian mothers” win is a bit of a misnomer. Clearly at least one of them had to lose.

    • True enough, but I was actually trying to make (rather too subtly, perhaps) a larger point. I think when the rights of a woman in the position of Mullins are recognized, lesbian mothers (speaking generally) win. The families they form with their partners are recognized and respected. It’s true that Picklesimer lost, but I think lesbian mothers everywhere won.

      • Since the law tends to be applied specifically in cases of conflict, it seems to me that more lesbian mothers will lose than win…
        since official recognition is far less necessary or signficant when everybody’s getting along

      • There is a win for lesbians in that they are equated with heterosexual non-biological parents.

        However, is any and all equations between lesbian and heterosexuals necessarily a win for lesbians in general? Can we speak “general” lesbian interests in an issue that pits the interests of some lesbians against others?
        (Note that in a case of this type, for EVERY lesbian that wins, there WILL be a lesbian that loses.)

    • Brenda Picklesimer

      Julie this is about your comments on the case of Mullins vs Picklesimer. You marked this down as a win for gays. But both parties are gay so there was no winners. the child is the one that loses. I througth you should know that now Mullins has filed for full cusdody of the child. Who wins there for a child to be taken from his biological mother and family. If you don’t know everything about a case it easy to judges. This is not or every been about there gay rights it has been what was best for the child. It didn’t have anything to do about there relationship it was about every issue in his life being a tough of war. There is no comprimse on anything. Hey when you go to court because one party calls him by one of his names and the other party refer to him by his other name thats going a little far so you might want to check back into the case and check all the fact and thank about the child not whats you consister as a feather in the gay society hat. I’am for equal rights for everyone. But whats inportant in this and any case that pretant to a child is whats best for that child. I know that it’s good to have people in your life thats loves you and you love them but in the end if it hurts them is that the best thing. I hope you comment back .

      • First off, I fully concede that I do not know the facts of the case beyond what is published in the opinion. It is always important to keep in mind that what ends up in a legal opinion is someone’s version of the facts. In contested cases, there are other versions of the facts.

        My criteria for determining whether the opinion is a win for gays isn’t whether the winner is a lesbian. There are many cases discussed on the blog that feature litigation between lesbians, so necessarily if one lesbian wins another lesbian loses. And, to go back to that first point, since I don’t know the real facts, I really cannot/shouldn’t say much.

        But I can (and do) comment on the law a case establishes and whether that law is generally good for lesbians/gay men. As I read this case it affirms the ability of two women (or two people, really) to plan a family together and then rely on the agreement. That holding is good for lesbian families, which is why I counted the case as a win.

        • Julie this is a win for non-biological parenthood, not for homosexuals in general and certainly not for gays (who if they are the biological parent, may still be pushed aside in favor of the mother’s partner, as they did not conceive via intercourse).

          It is true that their is an overlap, in that lesbians are most likely to find themselves in this type of situation. But it is not the same thing.

          The only way it can be considered a win for all homosexuals is if one considers a theoretical recognition of the relationship as equal to a heterosexual relationship, to be a win, regardless of how it actually affects the people involved.

          Maybe for some member’s of the gay community the need for recognition overrides all other needs. If so I don’t see that as a point in favor.

        • Brenda Picklesimer

          Julie this case only open the door for whoever want to take a mother’s right away. If the only way a case can be won is by using lies and ones position, than it not much of a win. If it had been won on merits than it would have been a win for lesbain. I just think that people should know there facts before declaring someone a winner. that only adds to the diffaculty of the case, for the judge to rule. Who loses here the child.

          • I don’t think I can have any opinion about the particular facts in this case or any other, really. Courts must (and do) reach conclusions about facts and I recognize that sometimes courts get those right and sometimes they get them wrong. But then courts–especially appellate courts–go on to announce rules of law. These rules say ‘if the facts are X, then the law says Y must follow.” That I do feel qualified to comment on. And I like the statement of law that this court offered–I think it serves the interests of those trying to create families in non-traditional ways.

            This is not to say that the law cannot be misused. Law can always be misused. One has to think about the risk of misuse before one decides of one likes a particular rule. If there’s too high a risk of misuse, then perhaps a rule is a bad one. But as I said, I like the statement of law–the particular rule–this court announced. I see the risk you refer to, but I do not that that the risk is unacceptably high and I think there is substantial benefit. Of course other people will have a different analysis and reach a different conclusion.

            One thing this exchange makes clear–and it’s an important thing to remember. When courts make law they do so by deciding specific cases. That being so, each of the cases I discuss here can be considered on two levels. One is the justice or correctness of the specific and particular result in the case at hand. This requires knowledge of and opinions about the underlying facts.

            The other level is as a statement of law–the above-mentioned “if the facts are X then Y follows.” To consider it on this level you do not have to know the real facts of the case. You only have to know what the court says the facts are.

            This means it is theoretically possible to say both that the outcome in the particular case is wrong (because the facts are not as the courts says they are) and that the rule announced by the court is right (because if they facts were as the court syas they are, then the court has the right result following.) That’s just the way that judge-made law works.

            Ultimately I do not agree with you about opening the door to take mother’s rights away. That isn’t how I read the rule the court announced.

  2. Ill point out that this case is different than the one you discussed a couple days ago in that these two women entered into a written agreement which was submitted and accepted by the court. A legal, binding document. The Ohio case that you presented last week relied on the notion that one can relinquish custody through assumed intent. Very different. I agree with the courts outcome in both cases. And both are a win for lesbian mother’s in that they protect parental rights.

    • On one level you can read the two cases as being similar–in both instances the courts are concerned with what the intention of the women were at some time before they separated. It’s pretty clear in the CA case the two women intended to co-parent, and the court finds that important. Perhaps if the Ohio court had been equally satisfied with the evidence of intention, it would have reached a different conclusion.

      But I can also look at these cases as being quite different. In this case the judges attended to the reality of the child’s life. In the Ohio case, the reality of the child’s life was remarkably similar to the pattern here. But the judge placed greater emphasis on a formal legal document–the one the co-mother did not sign. So in terms of the particular sorts of facts that impressed the judges, it seems to me they are rather different cases.

      It’s true that the two cases are different in terms of their facts. The intention of the women to co-parent is pretty undeniable in this case. The thing , and perhaps it is more questionable in the Ohio case.

  3. This is tragic for the child who will grow up with his mother having to cede parental rights to a stranger who is completely unrelated to the child. I can only imagine the ongoing disputes in relation to this between these two warring women. Only genetically related parents make sense to me, unless the non-genetic related person has been awarded an adoption order.

    • It’s remarkable to me that you would describe Mullins as a “stranger.” She was not a stranger to the boy who called her “momma.” She was not a stranger to Picklesimer, either.

      It’s true that it’s a pity the two parents cannot get along better and one can only hope in time they will be able to. But that’s just as true whether parents are biologically related or not. Biological parents do, on occasion, fight bitterly over a child.

      I would guess that Kentucky would not have allowed Mullins to adopt without terminating Picklesimer’s rights, which left the women few alternatives.

  4. Note: “They chose a donor who resembled Mullins.”

    I also know of cases where the lesbian partner manually inserts the sperm into her partner at home. (Medically speaking, totally unnecessary. Especially in cases of using banked sperm, where medically assisted inseminations actually have far superior results).

    If these are not attempts to create an illusion of a biological connection well than I don’t know what is. These are people who should think twice before insisting that biology is not important.

    • It’s funny, because I read these choices differently. Inserting the sperm looks to me like an effort to be as involved as possible, or perhaps to make the entire thing less clinical. (Surely that’s why some women would choose to inseminate at home.) It’s hardly trying to replicate biology.

      Choosing a donor who resembles the partner (male or female) is somewhat different and does implicate biology in a way, but I hardly think it proves that biology is the determinant of parenthood. I think people generally expect that children should look like their parents. It’s not surprising to me that some people want to try to get close to that expectation.

  5. After hearing about this case, I reviewed the courts’ opinions, including that of the Ky Appellant Court. One thing people seem to be overlooking is that the “written agreement” had been dismissed on all levels of the courts. Due to it being obtained under “fraud and manipulation”. Mullins’ attempt to have it reinstated at all levels of the court was denied. And she indeed was not awarded the title of defacto custodian. With that being said, the Ky courts based a decision on an agreement they themselves determined to be invalid.

    The prevention of harm you mention based on the child referring to Mullins as “momma” and the relationship that had developed between Mullins and the child, One would have to assume that the relationship was established based on the courts’ decisions, since the child was less than a year old when the couple seperated.

    • where did you read about the fraud and manipulation bit?
      I suspected as much but did not want to be presumptious…. it seemed quite odd to me that they should finalize the papers in February and all of a sudden split up less than two months later, unless Mullins was carefully timing her exit all along? Was that the reason for the allegations of fraud and manipulation?

      On another note, I would really like to see how this turns out, with Zachary being so young at the time of the breakup, are he and Mullins really going to maintain a parental relationship over time?
      Did the longitudinal study focus on any cases like that?

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