Adopting a narrow construction of the Kentucky Supreme Court’s historic same-sex co-parent ruling, Mullins v. Picklesimer, 317 S.W.3d 569 (Ky. 2010), a three-judge panel of the Court of Appeals of Kentucky, ruling on November 30, reversed a decision by Jefferson Circuit Court Judge Deana D. McDonald, and ruled that Teri Whitehouse, the former union partner of Tammie Delaney, is not entitled to joint custody and parenting time with a child born to Delaney during the women’s relationship. From comments in concurring opinions, it seems clear that this Kentucky Court of Appeals panel deems the U.S. Supreme Court’s marriage equality decision, Obergefell v. Hodges, 135 S. Ct. 2584 (2015), to require a bright-line test, under which it will be extremely difficult for unmarried partners to claim parental rights. The opinion confirms the fears of some critics of the marriage equality movement who predicted that achieving same-sex marriage could undermine the interests of LGBT parents who chose not to marry.
The case is Delaney v. Whitehouse, 2018 WL 6266774, 2018 Ky. App. Unpub. LEXIS 844 (Ky. Ct. App., Nov. 30, 2018). The court designated the opinion as “not to be published,” which means it is not supposed to be cited and argued as precedent for any other case, although Kentucky court rules say that an “unpublished” decision may be cited for consideration by a court if there is no published opinion that would adequately address the issue before the court. The whole idea of “unpublished” decisions is archaic, of course, when such opinions are released and published in full text in on-line legal services such as Westlaw, Lexis, and Bloomberg Law, and readily available to practicing lawyers and the courts.
The opinion for the panel by Judge Robert G. Johnson (whose term expired after he wrote the opinion but before it was released by the court) accepts Judge McDonald’s factual findings, but disputes their legal significance. McDonald found that the parties were in a romantic relationship and participated jointly in the decision to have a child, including the insemination process. “The parties treated each other as equal partners and clearly intended to create a parent-like relationship” between Whitehead and the child, found Judge McDonald, who also found that “they held themselves out as the parents of this child since before conception. They engaged in the process of selecting a [sperm] donor together, they attended appointments prior to insemination together, [Whitehouse] was present for the birth, and she has been known to the child as Momma. The parties participated in a union ceremony, after the birth of the child, and they held themselves out as a family unit with friends and family.”
Judge McDonald referred to Mullins v. Picklesimer, finding that some factual distinctions between the cases were not significant enough to compel a different result, and concluded that Whitehead met her burden of establishing under Mullins that Delaney had waived her “superior right to custody” as the biological mother, and thus had conferred standing on Whitehouse to seek joint custody and parenting time after the parties’ relationship terminated.
The Appellate Court disagreed. Johnson found that in Mullins, a case decided by the closely divided state supreme court voting 4-3, the court stated that “legal waiver ‘is a voluntary and intentional surrender or relinquishment of a known right, or an election to forego an advantage which the party at his option might have demanded or insisted upon.’” Also, he noted, the Kentucky Supreme Court “emphasized that although there need not be a written or formal waiver, ‘statements and supporting circumstances must be equivalent to an express waiver to meet the burden of proof.’”
“While it is indisputable that some of the factors set out in Mullins are present in this case,” wrote Johnson, “we are persuaded that those factors fall short of the clear and convincing proof required to establish waiver. It seems clear that both parties agreed to artificial insemination for the purpose of having a child, that both parties shared parenting responsibilities to some extent, and that for a relatively short period of time they held themselves out as a family unit. However, ‘no specific set of factors must be present in order to find there has been a waiver.’” The court in Mullins found “a myriad of factors” supporting waiver, including that the women in that case gave their child a hyphenated last name, which was placed on the birth certificate, that they made a formal written agreement bestowing custody rights on the co-parent, and that even after the parties separated, they continued to share custody for a period of five months. “In contrast,” wrote Johnson, “Delaney and Whitehouse made no efforts to formalize the custody status of the child at any point and the child bore only Delaney’s name. Although the parties did participate in a union ceremony after the child was born, that was not a legally cognizable marriage ceremony. Neither did the parties attempt to formalize their relationship after the decision of the United State Supreme Court in Obergefell v. Hodges.” (One of the concurring judges noted that Obergefell was decided about a month after the parties had their union ceremony.)
“It is also telling,” Johnson wrote, “that the family court found that the parties intended to create a ‘parent-like’ relationship between Whitehouse and the child, not that Delaney specifically intended to confer parental rights on Whitehouse. Finally, upon the deterioration of her relationship with Whitehouse, Delaney did not allow Whitehouse to continue to participate in parenting responsibilities with the child,” pointing out that the Mullins court had specifically pointed to the continued five months of shared parenting in that case as tending to show that the co-parent was more than merely a friend or caretaker.
“Because we reverse the trial court’s finding that Whitehouse had standing to seek custody and parenting time with Delaney,” wrote Johnson, “we need not address the family court’s best-interests analysis.” This, of course, demonstrates clearly the inhumanity of the court’s decision. The trial court, in a ruling as to which the Appellate Court finds no reason to question that court’s factual findings, deems totally irrelevant the trial court’s conclusion that it is in the best interest of this child to order joint custody and parenting time. This is to be totally ignored, and a situation that is not in the best interest of the child is to be perpetuated, mainly because, as Johnson intimated and as the concurring judges made clear, these women did not formally marry when the opportunity created by Obergefell presented itself.
Concurring Judge Glenn Acree urged that the Kentucky Supreme Court reconsider Mullins in light of Obergefell, arguing that because same-sex couples can marry, there is no longer any need for Kentucky law to recognize parental rights in unmarried co-parents. “Obergefell changed everything for same-sex relationships,” wrote Acree. “Necessarily, it changed how we assess whether a parent has partially waived her constitutional right to raise her child, partial waiver being the theory invented in Mullin. This case is an illustration.” He noted that Obergefell was decided within thirty days of the parties’ non-legal union ceremony, so “they had the right and opportunity to legally marry. They chose not to do so. Considering the Supreme Court’s emphasis in Obergefell on the importance of the marital relationship, legal significance must be given to a decision not to marry. Electing not to marry when the opportunity is available should be deemed to fully contradict all allegations by anyone seeking rights to another person’s child based on the Mullins partial waiver theory. Otherwise, marriage means far less than Obergefell indicates.”
Judge Acree goes on to quote Justice Anthony Kennedy’s flowery description of marriage, stating that this “sentiment permeates the opinion and uplifts the institution of marriage as few opinions have. In my view, it is not an insincere capitulation to social pressure. The opinion signals new the judiciary’s recognition of the majesty of marriage.” Acree advocates a bright line test based on Obergefell, leaving out in the cold all unmarried same-sex partners, regardless of the quality or depth of their relationship with the child. He argued that failure to adopt such a bright line test “will invite other individuals, and even groups, whether they cohabit with a biological or adoptive parent or not, to claim the partial waiver Mullins invented.” And, as his parting shot, he wrote, “Although ‘it takes a village’ is a catchy cant, the nucleus of a family is not made up of loose threads of casual affection. It is a tightly woven fabric of unifying love amongst two parents and their children.
Concurring, Judge Gene Smallwood, Jr., joined with Acree in encouraging the Kentucky Supreme Court to “revisit” the Mullins decision and overrule it, asserting that the dissenting opinion in Mullins had “proven true” and, quoting from a dissenting opinion in another case, wrote, “Mullins was decided as it was because of, and as a way of avoiding the pre-Obergefell prohibitions” on same-sex marriage. “The conceived basis for the court’s opinion in Mullins no longer exists,” he insisted, urging that the state’s high court “reaffirm all prior precedence on this issue and return the legal standing of parenthood to the safe mooring of the law as guaranteed by the Supreme Court of the United States in Troxel v. Granville, 530 U.S. 57 (2000).” Troxel held unconstitutional a state law that allowed third parties, such as grandparents, to seek visitation rights with children over the protest of their biological parents, affirming strong constitutional protection for the right of legal parents to exclude other adults from contact with their children. Many state courts have distinguished Troxel from cases involving same-sex parent presenting facts similar to those in this case of Delaney v. Whitehead.
Teri Whitehouse is represented by Hugh W. Barrow of Louisville. Tammie Delaney is represented by Louis P. Winner and Kristin M. Birkhold, also of Louisville. One would anticipate an appeal to the Kentucky Supreme Court, and the case cries out for LGBT rights movement participation, since an overruling of Mullins could endanger the parental rights of numerous unmarried co-parents in Kentucky.