Adopting a narrow construction of the Kentucky Supreme Court’s historic 2010 same-sex co-parent decision in Mullins v. Picklesimer, a three-judge panel of the Court of Appeals of Kentucky, ruling on November 30, held that Teri Whitehouse, the former partner of Tammie Delaney, is not entitled to joint custody and parenting time with a child born to Delaney during the women’s relationship.
The appellate ruling reversed a decision by Jefferson Circuit Court Judge Deana D. McDonald.
Comments in the three concurring opinions in the case make clear the panel views the 2015 US Supreme Court Obergefell marriage equality decision as requiring a bright-line test, under which it will be extremely difficult for unmarried partners to claim parental rights.
In that sense, the opinion confirms the fears of some marriage equality movement critics who predicted that achieving same-sex marriage could undermine the interests of LGBTQ parents who choose not to marry.
In her Circuit Court ruling, Judge McDonald had found that Teri Whitehouse and Tammie Delaney were in a romantic relationship and both fully participated in the decision to have a child, jointly chose a sperm donor, and held themselves out to the public as the child’s parents. The women had a commitment ceremony after the birth of the child, who referred to Whitehouse as “Momma.”
McDonald noted some factual distinctions between this case and the Mullins v. Picklesimer case, but concluded that Whitehead met her burden of establishing, under Mullins, that Delaney had waived her “superior right to custody” as the biological mother, conferring standing on Whitehouse to seek joint custody and parenting time after their relationship ended.
The Appellate Court disagreed.
Judge Robert G. Johnson, while accepting McDonald’s factual findings and acknowledging that some suggested Delaney’s acquiescence in Whitehouse’s parental role, wrote, “we are persuaded that those factors fall short of the clear and convincing proof required to establish waiver” by Delaney of her “superior right to custody.”
“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,” Johnson wrote. “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.”
Because the appellate panel reversed McDonald’s finding that Whitehouse has standing to seek custody and parenting time, Johnson wrote, it did not have to address the trial court’s analysis of the child’s best interests that concluded joint custody and parenting time was the best outcome. Though the three judges here found no reason to question the trial court’s factual findings, they were content to ignore its conclusion about what best serves the child at the heart of this case.
Concurring Judge Glenn Acree urged the Kentucky Supreme Court to 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… 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.”
Acree’s advocacy of a bright line test based on Obergefell leaves 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.”
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.” Quoting from a dissenting opinion in another case, he added, “Mullins was decided as it was because of, and as a way of avoiding the pre-Obergefell prohibitions” on same-sex marriage.
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. An appeal to the Kentucky Supreme Court seems likely, and the case cries out for LGBTQ rights movement participation, since an overruling of Mullins could endanger the parental rights of numerous unmarried co-parents in Kentucky.