The Kentucky Supreme Court unanimously ruled on February 18 in A.H. v. W.R.L. & M., 2016 Ky. LEXIS 14, that the lesbian co-parent of a child had a right to intervene in an adoption proceeding that had been initiated by the new husband of her former same-sex partner. Facing a case of “first impression” for the Kentucky courts, Justice Bill Cunningham wrote that the Kentucky Court of Appeals had incorrectly reversed the trial court’s decision to grant the co-parent’s motion to intervene and to dismiss the step-father’s adoption petition.
Justice Cunningham’s opinion refers to all the parties only by their first names in order to protect their privacy, as is common in family law proceedings.
Amy and Melissa began their relationship in Ohio in 2005 and decided to have a child together. Melissa conceived through donor insemination and gave birth to Laura in September 2006. Amy was present throughout the delivery, and the women agreed that Laura would have Amy’s last name. Until Melissa and Amy separated in 2011, they lived together with Laura as a family, Amy taking a full share of parental duties.
After the split-up, Melissa moved with Laura to Kentucky. Amy continued to visit Laura after the move. The next year Melissa married a man named Wesley. Almost two years later, in 2014, Wesley filed a step-parent adoption petition in the Kenton County, Kentucky, Family Court. When Amy learned of this, she filed a Petition for Shared Custody and Visitation in Hamilton County, Ohio, Family Court, as well as a motion to intervene in the Kentucky adoption case. She sought to have the adoption petition dismissed in light of her custody petition pending in Ohio.
The Ohio Family Court does not have jurisdiction over Laura, a resident of Kentucky, so the two cases were consolidated in Kentucky, where the trial judge granted Amy’s motion to intervene and dismissed Wesley’s adoption petition. In effect, the Kentucky trial judge decided to reorient the case away from Wesley’s adoption to Amy’s action for shared custody and visitation.
Wesley appealed and the Kentucky Court of Appeals reversed. It held that Amy did not have “standing” to seek to adopt Laura and thus was not entitled to intervene in Wesley’s adoption case, and it ordered the Family Court to reinstate the adoption proceeding.
This time Amy appealed.
Supreme Court Justice Cunningham prefaced his discussion of the legal issues with his assertion that the case “is not about same-sex relationships, changing social mores or notions about definition of family, or life styles.”
“This case is about people and their ability to participate in a lawsuit in which the outcome may adversely affect their interest,” he continued. “What we write here today applies equally to a myriad of human relationships including heterosexual parenting, boyfriends, girlfriends, grandparents, and others. Most importantly, this case is about Laura. Sometimes the emotions which envelope these types of cases cause this primary concern to be overlooked.”
At its heart, wrote Cunningham, was the Court of Appeals’ mistaken conflation of the concepts of intervention and standing. “Standing to seek adoption is not a condition for intervening in an adoption proceeding,” he wrote. “Our analysis is concerned only with Amy’s right to intervene in the adoption proceeding.”
As to that, he found that a Kentucky practice rule on “intervention of right” in pending cases, Rule 24.01, applies to this situation. The rule states that “anyone shall be permitted to intervene in an action . . . when the applicant claims an interest relating to the property or transaction which is the subject of the action and is so situated that the disposition of the action may as a practical matter impair or impede the applicant’s ability to protect that interest.” Indeed, if Wesley’s petition was granted, he and Melissa might have the power as Laura’s legal parents to exclude Amy from Laura’s life.
In this case, wrote Cunningham, “the subject of the adoption action is Laura, and Amy is claiming a cognizable legal interest – i.e., maintaining a relational connection with the child, either through custody or visitation.” Granting Wesley’s adoption petition “could impair or impede Amy’s proffered custodial interest since, absent her intervention, the adoption proceedings would have concluded before her custody rights were determined.” On the other hand, if she gained joint custody before the adoption proceeding was concluded, she would “share the right to make decisions concerning the major aspects of Laura’s upbringing.” Thus, the Supreme Court found that Amy had satisfied the requirements set forth in Rule 24.01.
Thus Amy was entitled to intervene as a matter of right. The court pointed out that another Rule governs permissive intervention, which would give the trial court discretion to allow her to intervene even if she did not have a strict right to do so.
When Melissa and Amy planned to have a child they executed a written agreement with their sperm donor which made clear that they contemplated that Amy and Melissa would raise the child together as parents. Justice Cunningham noted that the parties in this case have argued about whether that document is an enforceable contract. He found that question not “dispositive” of the outcome of this case, but rather considered the document to be “instructive evidence demonstrating the intent of Amy and Melissa to raise Laura as co-parents,” thus bolstering Amy’s claim to have a legal interest for purposes of intervening in the adoption proceeding.
The Supreme Court also found that the trial judge made a “logical decision” that Amy’s custody claim should be resolved before addressing Wesley’s adoption petition, and that the Court of Appeals should have deferred to the trial court’s judgment on this as a matter of judicial efficiency. The Supreme Court sent the case back to the trial court, reinstating its order granting intervention and dismissing the step-parent adoption petition.
Amy is represented by attorneys Margo L. Grubbs, Jennifer Blain Landry, Camilla B. Taylor, Kyle A. Palazzolo, Christopher R. Clark, Gregory R. Nevins and Lisa T. Meeks. Taylor, Palazzolo, Clark and Nevins are staff attorneys with Lambda Legal. Counsel for Wesley are Jacqueline S. Sawyers and Amy Howard Anderson.