Tuesday, June 20, 2006

Case Law Development: Same Sex Partner Is Not De Facto Custodian By Virtue of Providing Primary Financial Support for Partner's Child

After the breakup of their 8-year relationship, a woman sought custody or visitation  her lesbian partner's daughter, born during the relationship. The Kentucky Supreme Court held that one who is not a parent but who has nevertheless participated substantially in the support and rearing of a child for a significant period of time has no standing to claim a right of custody or visitation upon discontinuance of the cohabitational relationship with the parent unless they can qualify as a de facto custodian of the child under Kentucky statutes.  That statute defines "de facto custodian" as "a person who has been shown by clear and convincing evidence to have been the primary caregiver for, and financial supporter of, a child who has resided with the person for a period of . . . one (1) year or more if the child is three (3) years of age." After hearing the evidence, the trial court held that even though petitioner was the primary financial supporter of the child, her partner had been the child's primary caregiver.  The Kentucky Supreme Court affirmed, commenting:

"We are not unaware of the recent decision of the Supreme Court of Washington, Carvin v. Britain, 122 P.3d 161 (Wash. 2005, cert. denied, __ U.S. ___ (2006) where that court took an expansive view of its common law and equitable powers with respect to allowing standing to seek custody in circumstances not dissimilar to those presented here. Notably, however, there was no de facto custodian statute available for the presentation of the applicant's claims. As such, if the applicant was to be heard at all, it was upon non-statutory grounds. In this case, [Kentucky statutes] are controlling. Despite her significant relationship to the child, [petitioner] was not the child's parent and the child was in the custody of her only parent. Thus, [petitioner's] only avenue for obtaining standing to claim custody was to prove that she was a de facto custodian and in this respect, her proof failed."

B.F. v. T.D., 2006 Ky.  LEXIS 162 (June 15, 2006) Opinion on the web (last visited June 17, 2006 bgf)

http://lawprofessors.typepad.com/family_law/2006/06/case_law_develo_20.html

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