Retro Kentucky Appellate Decision Denies Standing to Lesbian Co-Parent in Custody Dispute

In a decision showing the uneven progress that has been made in establishing parental rights for same-sex co-parents, the Kentucky Court of Appeals ruled in Tilley v. Kilgore, 2009 Westlaw 485063, that a lesbian co-parent lacks standing to seek joint custody of the children she and her former partner were raising.  The unanimous February 27 ruling means that the court will never consider whether the best interests of two young children would be served by preserving a parental role for both of the women.

 

According to the opinion for the court by Judge Denise Clayton, Ernestine Tilley and Michelle Kilgore began living together in the mid-1990s.  They decided to have and raise children together, and Kilgore used in vitro fertilization to bear two children, who are now 10 and 6 years old.  The women raised the children together until “the relationship deteriorated and the couple separated.”  Tilley sought to preserve her parental status through a lawsuit filed in May 2007, but the trial court held that she was not a legal parent and lacked standing to seek joint custody or visitation rights.

 

Tilley’s primary documentary evidence, quoted in full by the court, was a document that Kilgore signed in August 2000, authorizing Tilley to act as “custodian” of one of the children, with authority to make decisions about medical care and to administer reasonable discipline.  The document also stated Kilgore’s agreement to “reimburse Custodian for any reasonable expenditures required for the proper care of said Child.”  The opinion provides no explanation why there was no similar document concerning the other child.

 

The court found that under the relevant Kentucky statute, somebody who is neither a biological or adoptive parent of a child can only seek custody in one of three ways: by proving she is a de facto parent, by showing that the child’s legal parent is unfit, or by showing that the legal parent has expressly waived her “superior right to custody.”

 

The court found none of these exceptions applicable.  To be a de facto parent, Tilley would have to meet the statutory requirement that she had served as the primary caregiver for the children.  In this case, Judge Clayton observed, “Since both Kilgore and Tilley raised these children, there was no single primary caregiver.  Tilley cannot be a de facto custodian because she provided for the children next to the biological parent and not in place of the biological parent.”

 

Tilley did not argue that Kilgore was an unfit mother, so her only other way of seeking custody would be to show a waiver.  The statute, as construed by the Kentucky Supreme Court in an important 2003 decision, Moore v. Asente, requires “proof of a ‘knowing and voluntary surrender or relinquishment of a known right,’” although Kentucky courts have also found that a waiver can be found by implication based on “a party’s decisive, unequivocal conduct reasonably inferring the intent to waive,” as long as “statements and supporting cirucumstances are equivalent to an express waiver.”

 

The court was unwilling to find such a waiver in this case, characterizing the 2000 document as merely a medical power of attorney.  The court also found that the factors listed by the Kentucky Supreme Court in Moore v. Asente could not even be applied to find an implied waiver, because they all related to a situation where a parent voluntarily gives up custody of her child to an unrelated person.  “Up until the separation and filing of the custody petition,” wrote Judge Clayton, “Kilgore did not relinquish physical custody to Tilley.  In fact, they shared physical custody.”

 

The court also rejected Tilley’s argument that she was standing in the place of the biological father, whose custodial rights had been relinquished upon donation of sperm.  Clayton pointed out that “since this was an in vitro fertilization, the father contractually had no rights from the very beginning.  This means that there were no parental rights to waive in favor of Tilley.  Because Tilley is not a de facto custodian and there is not clear and convincing evidence that Kilgore waived her superior right to custody, we find that Tilley’s case was properly dismissed as she has no standing to bring a custody action.”

 

Reading this opinion is like reading something out of the 1990s, similar to the New York Court of Appeals’ unfortunate decision of Alison D. v. Virginia M., an relic that continues to haunt same-sex partners in New York who did not get around to doing a second-parent adoption, a process that is nowhere mentioned in the Kentucky opinion as an alternative for same-sex partners. 

 

The one bright spot in the opinion is that same-sex partners in Kentucky contemplating having children can take action to avoid this result, by executing an agreement in which the contemplated biological mother expressly waives her superior right to custody and agrees in advance that in the event that the parties terminate their relationship, the biological mother consents to joint legal custody with her partner.  But few contemplate break-ups at the time they plan to have children, resulting in court proceedings where the “best interest of the child” test, the official standard for deciding contested custody and visitation cases, never gets applied.