Ky. court OKs joint custody for ex-lesbian couple

By Brett Barrouquere

Originally printed 1/28/2010 (Issue 1804 - Between The Lines News)

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LOUISVILLE, Ky. (AP) - A one-time lesbian couple will have shared custody of the child they had together and raised before splitting up, the Kentucky Supreme Court ruled Jan. 21.

The high court in Frankfort approved the couple's joint custody agreement and ruled that one of the women, Arminta Jane Mullins, acted as a "de facto parent" with her partner, Phyllis Dianne Picklesimer.

The decision, which Justices Bill Cunningham, John Minton and Will T. Scott partially dissented from, reverses a Kentucky Court of Appeals ruling saying Mullins lacked standing to pursue joint custody of the child, now 5, because she was not a parent.

Picklesimer gave birth to the boy in 2005. The couple filed a joint custody agreement in February 2006 in Garrard County and split up two months later. Picklesimer denied Mullins contact with the boy that September, prompting Mullins to go to court to see the child.

Justice Wil Schroeder wrote for the court's majority that the women made multiple decisions about the child before and after he was born, with Mullins caring for the boy while the couple was together and for five months after they split.

"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," Schroeder wrote.

Cunningham accused the majority of rewriting the law and casting aside court precedents "without as much as a wave of the hand." The decision, Cunningham said, 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.

"If there is one thing the children of our Commonwealth need today it is stability," Cunningham wrote. "This is a destabilizing decision."

Eighteen states recognize "de facto parents" over the objections of fit biological parents: Arizona, Arkansas, California, Colorado, Indiana, Kentucky, Maine, Maryland, Massachusetts, Minnesota, New Jersey, New Mexico, Pennsylvania, Rhode Island, Utah, West Virginia, Washington and Wisconsin.

The Kentucky Supreme Court previously dealt with the issue of custody between lesbian partners in 2006. In that case, the court ruled against the non-biological parent, saying she was not the primary caregiver for the child. There was no joint custody agreement in that case.

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