Same Sex Couples -- Custody and Property Issues

In February 2014, U.S. District Judge John G. Heyburn II in the Western District of Kentucky ruled in Bourke v. Beshear that portions of Kentucky law that define marriage as between a man and a woman are unconstitutional in that they violate the Equal Protection Clause. Judge Heyburn’s ruling essentially holds that Kentucky must recognize same-sex marriages validly performed in other states where same-sex marriage is legal. The case is currently under appeal and a stay has been issued until the U.S. Sixth Circuit Court of Appeals dissolves it.

Until the stay is lifted and the opinion is affirmed, the law regarding same-sex couples in Kentucky is unsettled, creating many difficult legal issues to arise when a gay or lesbian couple separate, having children or property in common. Unlike for married persons, for which state statutes address the division of jointly acquired property and debt, same-sex partners often must seek legal counsel to protect their rights in the event of separation when the state will not recognize their marriage.

Even after the stay of Judge Heyburn’s opinion is lifted, the law will be unsettled for unmarried same sex couples in Kentucky, as Heyburn’s opinion is limited only to out-of-state marriages and does not lift the ban on gay marriage within Kentucky. Custody issues relating to same sex couples have become somewhat more defined since the Kentucky Supreme Court published the landmark decision of Mullins v. Picklesimer in 2010. In this case, a former lesbian couple had a child together through artificial insemination though only one was the biological mother of the child. The Court granted legal standing to the non-biological mother to seek custody rights. The Court held that there can be a waiver of the birth mother’s superior right to sole custody of a child in favor of a joint custody arrangement with her partner. Specifically, the birth mother can waive her superior rights to be the sole decision-maker and sole physical custodian of the child.

No couple, gay or straight, enters into a relationship expecting it to end, especially when choosing to have children together. Unfortunately, however, some relationships inevitably do end. When children are involved in same sex relationships, to protect the rights of a non-biological (or non-adoptive) parent, a shared custody agreement or co-parenting agreement is recommended before the relationship deteriorates. This agreement should specifically state the intentions of the couple to co-parent the child, and should expressly state the waiver of the biological (or adoptive) parent as sole legal and physical custodian.