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EQUALITY IN THE COURTS: KY Court Awards Joint Custody to Non-Biological Lesbian Mother

In the Equality in the Courts blog series, HRC attorneys discuss news and break down the legal theories related to the U.S. and state supreme courts as well as other significant federal cases.

Yesterday, in Mullins v. Picklesimer, the Supreme Court of Kentucky awarded joint custody to two former same-sex partners after finding that the non-biological mother was a de facto parent of her child. Because non-biological same-sex parents of a child are often not related to the child in the ways traditionally accepted by law – that is, by blood, marriage, or adoption – due to prohibitions on same-sex marriage or second-parent adoption in various states (including Kentucky), it is highly significant that the Kentucky Supreme Court recognized that a non-biological lesbian parent can have a parental relationship with her child. The court held that the non-biological mother was a de facto parent because the couple and their child had formed a “family unit”, and the non-biological mother had important emotional and physical bonds with her child. Therefore, the court found she was entitled to joint custody. After the couple’s nearly five year relationship ended, the biological mother of Zachary Alexander Picklesimer-Mullins, Phyllis Dianne Picklesimer, attempted to deny her ex-partner, Arminta Jane Mullins , custody of Zachary. As the biological mother, Picklesimer has obvious parental rights over Zachary. Mullins, however, is not Zachary’s mother in the traditional sense – she is not related to him by blood, marriage, or adoption. Mullins and Picklesimer have a joint-custody agreement but factual inaccuracies in the agreement made it legally void. Picklesimer, therefore, has a superior claim to custody over Zachary.

Mullins argued that she was entitled to joint custody over Zachary because Picklesimer waived her superior custody rights by behaving as if Mullins was also Zachary’s parent. During their relationship, Picklesimer treated Mullins as a co-parent: Mullins and Picklesimer decided together to start a family, and chose a sperm donor resembling Mullins; Zachary was given a hyphenated last name, blending the last names of both women; Mullins was involved during the pregnancy, attended delivery, and cared for the premature Zachary when he was in the neonatal unit; Zachary called Mullins “Momma”; and Mullins provided care and financial support throughout her relationship with Picklesimer. While the joint parenting agreement was ultimately held to be void, that the women had attempted to enter into such an agreement showed that Picklesimer had attempted to share these parenting rights. She continued to try to share parenting rights after the relationship ended, permitting Mullins extensive visitation for the first five months. The court held that Mullins, Picklesimer, and Zachary functioned as a family unit for nearly a year, and even after their separation they functioned as a separated family unit would. The Kentucky Supreme Court found that Picklesimer, through allowing Mullins to co-parent with her, had waived her superior custody right over Zachary. Mullins was found to be a de facto parent entitled to joint custody rights despite her lack of connection to Zachary through the traditional means of blood, marriage, and adoption. This significant ruling honored a lesbian family unit and recognized the important bonding that occurs between a non-biological mother and her child. Contributed by Kate Oakley, Winter 2010 McCleary Law Fellow

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