Kentucky Appeals Court Finds Second-Parent Adoption Illegal, But Rejects Ex Post Facto Challenge by Birth Mother While Remanding Custody Question

In a complicated ruling issued on September 12, the Court of Appeals of Kentucky, an intermediate appellate court, ruled that Judge Eleanore Garber of the Jefferson Family Court erred when she granted joint custody and a second parent adoption at the behest of a lesbian couple in 2004, but that the birth mother’s attempt to have the adoption ruling nullified was barred by the statute of limitations.  However, the appeals court found that there is no statute of limitations barring reconsideration of the joint custody ruling, so it returned the case of the Family Court for reconsideration.  S.J.L.S. v. T.L.S., 2008 Westlaw 4181994 (Ky.App., Sept. 12, 2008).

According to the opinion for the court by Judge Glenn E. Acree, which identified all the parties by initials, the two women, S and T, began their relationship in 1997, and by 2000 had formulated their “long-term plan” to be life partners and form a family with children.  They decided S would become pregnant, and T undertook the responsibility for selecting a sperm donor.  S became pregnant late in 2000 and gave birth to Z in June 2001.

Within a few months of Z’s birth, T retained an attorney who filed a petition in the Family Court seeking a joint custody order, which was granted in a routine manner on August 16, 2001, without any hearing having been held.  According to Acree, “There is nothing in the entire record indicating any legal basis upon which joint custody was either sought or granted.”  Indeed, the opinion notes that the Family Court lacked jurisdiction to make a custody award, since the relevant statute authorizes the Family Court to make custody decisions when a marriage is breaking up and the child has resided in the county for at least six months, neither condition of which was present.   

“Notwithstanding the irregularity of the family court’s order,” wrote Acree, “and for a time at least, T, S and Z enjoyed the benefits attendant to a familial lifestyle.  Sadly, as in too many relationships, the parties’ common love for the child was not enough to sustain them as a couple.  In May 2003, the romantic relationship between T and S came to an end.  S moved out and T and S established separate households.”

But this changed circumstance did not deter them from the next step on their plan, which was to solidify T’s relationship to Z by having a second-parent adoption.  Since there was no statutory or judicial precedent supporting such a proceeding, when T presented her adoption petition, she urged the family court to conceptualize her as a step-parent, since the adoption statute authorizes adoptions by a step-parent without terminating the parental rights of the birth parent to whom the step-parent is married.

Under Kentucky law, when a person unrelated to a child is seeking to adopt, notice must be sent to a state agency, which is charged with conducting a study and making a recommendation to the court.  In this case, the family court clerk sent the requisite notice, and two letters eventually came from the state, in both cases opposing the adoption on the ground that there was no legal authority for it.  Mysteriously, those letters are missing from the court files and the family court judge, who had also appointed a guardian ad litem for the child who advocated for the adoption, ignored the state letters and granted the adoption in February 2004, noting that courts in some other states had creatively reinterpreted their adoption statutes, in some cases by treating a birth parent’s same-sex partner as comparable to a step-parent, and that the Kentucky adoption statute provided that no state approval was necessary for an adoption by a step-parent.

Since the state took no action to appeal the adoption ruling, of which the agencies that sent the letters may have been unaware, there things sat legally for a time, while the relationship between T and S continued to deteriorate as they quarreled about visitation and “other issues related to Z’s upbringing and mental health.”  T filed a motion with the family court on June 13, 2005, seeking increased visitation, leading S to hire a new attorney to represent her.  The new attorney reviewed all the court files in the case, determined to his satisfaction that the original family court orders were invalid, and filed new motions on July 13, 2005, seeking to vacate the original joint custody order and the ordering granting T’s adoption petition.

Responding to the arguments by S’s attorney, the Family Court Judge Garber “acknowledged erroneously entering the tendered Agreed Order without making an independent judgment as to whether it had the subject matter [jurisdiction] to do so,” finding that since T was not a legal parent of Z,  Z was in the custody of its birth parent, and T had not become a de facto custodian of Z because at the time the custody petition was filed, Z had not been residing with T for at least six months (as Z was then two months old), the family court lacked jurisdiction to grant custody.  Similarly, Judge Garber admitted on the record that the court had also lacked requisite jurisdiction under the statutes to make the adoption order.

However, T’s lawyer successfully argued that another provision of the statute raised an “absolute bar to any attack on the judgment of adoption whether collateral or direct, procedural or substantive, because more than a year had passed since its entry.”  Judge Garber decided that since the adoption order could not be challenged this long after it had been granted, T’s status as a legal parent was fixed and there was no reason to reopen the joint custody ruling either, because of S’s “failuire to file her motion in a reasonable time; [her] full knowledge of all facts at the time the order was entered; and the clean hands doctrine.”  That is, the family court found that the one exception to this time bar – fraud on the court – had not occurred.

S appealed, but was only partially successful.   While expressing some consternation at the family court’s actions in granting the joint custody and adoption orders in blatant violation of Kentucky statutes, the court of appeals agreed with the trial court that the state’s policy determination that adoption orders are final and not subject to challenge when they have been in effect for a year, so long as there was no fraud in the original proceeding, had to prevail in this case, blocking S from challenging the adoption.  Since T had been very open with the court about the fact that the petition involved a same-sex couple, and all parties went into the proceeding fully informed of the facts, the court could find no basis for applying the fraud exception.

However, the court noted that the one-year statute of limitations only applies to adoptions, not to custody determinations.  The court of appeals agreed with the family court judge’s conclusion that family court lacked jurisdiction to issue the joint custody order, but took the analysis the next step.  “A judgment entered by a court without subject matter jurisdiction is void ab initio,” wrote Judge Acree.  “A void judgment is not entitled to any respect or deference by the courts.  It is ‘a legal nullity, and a court has no discretion in determining whether it should be set aside.’  In addition, since subject matter jurisdiction concerns the very nature and origins of a court’s power to act at all, it ‘cannot be born of waiver, consent or estoppel.’” 

In the case of the adoption, the family court had jurisdiction, but T was not qualified to adopt under a strict construction of the adoption statute.  But in the case of the custody award, the family court did not have jurisdiction of the subject matter, because the petition was not filed on the break-up of a marriage.  The court pointed out that no matter how S and T regarded their relationship in 2001 when Z was born, it was not a marriage, and to treat it as if it was violated the state’s public policy, as announced in its Defense of Marriage Act (DOMA).  Kentucky later added an anti-same-sex-marriage amendment to its constitution, but that was not in place until later in 2004.

But the court of appeals indicated that in its view, the question of subject matter jurisdiction over the custody order did not turn on the fact that the parties were a same-sex couple.  No unmarried couple could seek joint custody over a child under Kentucky statutes.

The court of appeals concluded that since the family court lacked jurisdiction to make the custody award, S was entitled to challenge it at any time, and it was an abuse of discretion for the family court to decline to set aside the custody order.

However, this leaves the situation that both T and S are legal parents of Z.   T was not Z’s legal parent when T filed the original petition for joint custody, which is why the court lacked jurisdiction at that time.  But now, since T is a legal parent of Z, T can seek custody.  Thus, the court of appeals sent the case back to the Jefferson Family Court, with instructions to consider the custody issue anew.  Since this custody issue does not arise out of the dissolution of a marriage, the custody statute does not apply, said the court, but the Family Court retains general common law jurisdiction to decide a custody issue between two legal parents who were never married to each other.   The court decided that the Family Court could apply the standards of the custody statute, even though it did not technically apply, in order to have some legal guidelines on determining the custody issue.

Judge Acree concluded the opinion with a rumination about the role of the courts in times of social change.  “It is not this or any court’s role to judge whether the Legislature’s prohibition of same-sex marriage, or common law marriage, or bigamous marriage, or polygamous marriage, is morally defensible or socially enlightened,” Acree wrote.  “Nor is it this court’s role, in the absence of constitutional repugnance, to craft any means by which the legal consequences of such a prohibition may be negated or avoided.  It is simply the law.”

“Nor does the fact that T and S are homosexual have any bearing whatsoever on the void nature of this joint custody order and this judgment of adoption.  The merits and defects of both order and judgment exist regardless of the parties’ relationships, genetic makeup, pre-disposition or personal choices.  The lawyers in this case obviously desired to affect the public policies at play in this case that, in their view, negatively impacted their clients.  They would have been perfectly justified in petitioning the Legislature, or encouraging their clients to do so, for an amendment to the adoption laws that would permit an unmarried person to adopt a non-spouse’s child without terminating the non-spouse’s parental rights.  But rather than taking this proper route to change, they sought to achieve their goal through this branch of government.  Their stratagem, so clearly contrary to statute and public policy, could only succeed in a receptive environment.”

In this case, they found a receptive Family Court Judge, but the court of appeals preferred to fault the state government rather than the judge for what happened in this case.  Judge Acree expressed the court’s hope that if anyone tries a similar court strategy in the future, the government should “exercise its right to intervene in the action for the proper purpose of establishing the proceeding as adversarial and presenting its relevant position on the law and the facts of the particular adoption case.”  Had the government done so in this case, “a timely appeal could have remedied the numerous errors in this case before they became indelible.”

Concluded Acree, “Failures to strictly adhere to the adoption laws have resulted in some painful decisions in Kentucky.  The decision in this case was destined to join their ranks.  Lawyers succeeded in satisfying their clients’ initial desires, but at what price?  The integrity of the law has taken a blow.  May we take solace in the hope that, in the end, Z has benefited by our decision.”

Of course, this may not be the end of the story, since both parties might seek state supreme court review of the portion of the ruling that went against them.