GAY & LESBIAN COUPLES,
BISEXUAL AND TRANSGENDERED
PARENTS
 Kentucky does not recognize
common law marriages contracted within this state. Neither does Kentucky
recognize same-gender marriages (KRS
402.045. Many legal rights issues and problems arise when people have
significant others or life partners and live together without a legal marriage.
Traditionally, unmarried domestic partners (whether of opposite sexes or of
same sex) have not enjoyed property rights that resemble those available to
married persons.
Kentucky Revised Statute 403, et seq., defines rights and duties for married
couples, but there is no such governing law for unmarried parties. Generally, if
there is no agreement, you will need a lawyer to protect your rights.
However, with respect to children
born to non-heterosexual couples:
The Kentucky Supreme Court made a
landmark decision on January 21, 2010 in the case of Mullins
v. Picklesimer. The case involves two women who were previously a
lesbian couple. One of them gave birth to a child through artificial
insemination. The women filed a joint custody agreement the following year
(2006) but split up two months later. Several months later, the birth
mother denied her former partner contact with the child, giving rise to several
years of legal action.
This 2010 decision reverses a
Kentucky Court of Appeals ruling saying that the non-birth mother "lacked
standing" to pursue joint custody of the boy, who will be 5 in May 2010,
because she was not technically a parent.
The high court of Kentucky's ruling
is significant to same-gender couples as well as to family members such as
grandparents and also non-related persons who have been significantly involved
in raising children as it may give them legal standing to seek custody even if
they are not a biological parent if doing so is in the best interest of the
child.
In Mullins
v. Picklesimer, the majority of the Kentucky Supreme Court ruled that the
former couple made multiple decisions about the child before and after his
birth, with the non-biological person caring for the boy while the women were
together and for five months after they split up. "This would
distinguish the nonparent acting as a parent to the child from a grandparent, a
baby-sitter, or a boyfriend or girlfriend of the parent, who watched the child
for the parent, but who was never intended by the parent to be doing so in the
same capacity of another parent," wrote Justice Wil Schroeder in the
majority opinion.
The dissenting minority of the
Kentucky Supreme Court expressed concern that this decision opens the door for a
host of people to petition for joint custody, so long as they can show shared
participation in child rearing, and threatens to destabilize some families.
Kentucky has now joined at least 17
other states in recognizing "de facto" parents over the
objections of "fit" biological parents.
Biological or de facto
parents in Kentucky, whether straight, gay, lesbian, bisexual, transgendered or
otherwise, do have rights in Kentucky. If you are concerned about
protecting or enforcing your rights as a LGBT parent, please make an appointment
with my office for an initial consultation. But first, you may want to
read:
 The
American Bar Association has published
Gay, Lesbian and Transgender Clients - A Lawyer's Guide which may be
useful in addressing legal issues which arise out of same-gender unions
as well as transgendered individuals. The ABA sells this book for
about $90, but it may be available for less from other vendors, such as
Amazon.com.
This book provides an introduction
for lawyers and their clients to
the legal landscape as it relates to lesbian, gay and transgendered (LGT)
persons today and provides the opportunity to look at legal issues from
their perspectives. In addition to case law, statutes and a discussion
of legal issues, this book also introduces the reader to people who make
up the lesbian, gay and transgender community and their common issues.
It can assist in developing new ideas of what is possible in local
jurisdiction, and identifying legal issues which may be successfully
challenged. Some of the topics covered include:
-
LGT relationships
-
Children
-
Adoption
-
Parenting rights
-
LGT students and schools
-
LGT elders
-
Estate planning
-
Immigration
 Estate
Planning for Same-Sex Couples is another important issue which
must be considered and the ABA has published a book with that name,
available from the ABA for $59, but also available from other vendors,
such as
Amazon.com.
See, also, our section on
Domestic
Partnerships
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