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.