Same Sex Couples -- Custody and Property Issues

Kentucky law does not recognize marriage between same-sex couples, nor does it recognize common law marriages contracted within this state. Therefore, many difficult legal issues can arise when a gay or lesbian couple separates, after living as a family unit, having children and sharing property jointly. Unlike for married persons, in which a set of statutes addresses the division of jointly acquired property and debt, same-sex partners often must seek legal counsel to protect their property rights in the event of separation or before.

Custody issues relating to same sex couples, however, have become 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 will 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.