State Laws and Legislation

Kentucky Custody and Visitation Law

Kentucky courts have used a parent’s sexual orientation to deny, restrict or modify custody and visitation. The Kentucky Supreme Court, however, has recognized parental rights for a non-biological co-parent in a same-sex relationship. There are no reported or published opinions dealing with transgender parents or same-sex co-parents.

Custody and Visitation for Gay, Lesbian and Bisexual Parents
Kentucky law states: “The court shall determine custody in accordance with the best interests of the child and equal consideration shall be given to each parent and to any de facto custodian. The court shall consider all relevant factors including: (a) The wishes of the child’s parent or parents, and any de facto custodian, as to his custody; (b) The wishes of the child as to his custodian; (c) The interaction and interrelationship of the child with his parent or parents, his siblings and any other person who may significantly affect the child’s best interests; (d) The child’s adjustment to his home, school and community; (e) The mental and physical health of all individuals involved; (f) Information, records and evidence of domestic violence; … (g) The extent to which the child has been cared for, nurtured and supported by any de facto custodian; (h) The intent of the parent or parents in placing the child with a de facto custodian; and (i) The circumstances under which the child was placed or allowed to remain in the custody of a de facto custodian, including whether the parent now seeking custody was previously prevented from doing so as a result of domestic violence … and whether the child was placed with a de facto custodian to allow the parent now seeking custody to seek employment, work or attend school. …

“The court shall not consider conduct of a proposed custodian that does not affect his relationship to the child. If domestic violence and abuse is alleged, the court shall determine the extent to which the domestic violence and abuse has affected the child and the child’s relationship to both parents. …
“A parent not granted custody of the child is entitled to reasonable visitation rights unless the court finds, after a hearing, that visitation would endanger seriously the child’s physical, mental, moral or emotional health. Upon request of either party, the court shall issue orders which are specific as to the frequency, timing, duration, conditions and method of scheduling visitation and which reflect the development age of the child. …

“No motion to modify a custody decree shall be made earlier than two years after its date, unless the court permits it to be made on the basis of affidavits that there is reason to believe that: (a) The child’s present environment may endanger seriously his physical, mental, moral or emotional health; or (b) The custodian appointed under the prior decree has placed the child with a de facto custodian.”

In one 1980 case, S. v. S., the mother was awarded custody of the child of her marriage. Shortly afterward, she entered into a same-sex relationship. The child’s father then filed a motion seeking a change in custody. The court pointed to KY. REV. STAT. §403.340 as primary guidance in making this determination. Specifically, regarding whether the mother’s present environment may endanger the child, i.e., the “potentiality of such danger is the test and the courts are not required to wait until damage is done.” The court relied on the testimony of a court-appointed psychologist who stated: “Homosexuality raised serious issues in terms of the child’s future.” The appeals court felt that this fulfilled the burden of proof required to modify a custody award and reversed the trial court.

In a 2006 case, the state Supreme Court was faced with the case of a same-sex co-parent, B.F., who had no biological or legal relationship to the child of the relationship. B.F. had petitioned to be recognized as a de facto custodian for purposes of custody and visitation. Although the court found that B.F. did not meet the requirements of law (see above) to be deemed a de facto parent, it did not rule that same-sex co-parents cannot pursue these petitions.

Subsequently, in 2010, the state Supreme Court considered a similar situation in Mullins v. Picklesimer. In this case the court found that Picklesimer, the biological mother, had waived her superior custody rights by intentionally establishing Mullins as a co-mother throughout their relationship. The court took into account that the couple had chosen to start a family together, the child was given both of the women’s last names as a hyphenated surname, Mullins was listed on the birth certificate, they functioned as a family unit for nearly a year, the child referred to both women by maternal names. Most importantly, the couple had attempted to enter into a formal agreement establishing Mullins as a co-parent. Mullins was granted joint custody.

Citations: KY. REV. STAT. ANN. §403.270 (2003); KY. REV. STAT. ANN §403.320; KY. REV. STAT. ANN. § 403.340; S. v. S., 608 S.W.2d 64 (Ky. Ct. App. 1980), cert denied; Stevenson v. Stevenson, 451 US 911 (1981); B.F. v. T.D., 2006 Ky. LEXIS 162 (Ky. 2006). Mullins v. Picklesimer, 2010 Ky Lexis 7 (Ky, 2010).

Updated: Mon, January 25, 2010 - 12:00:07