In a decision showing the uneven progress that has been made in establishing parental rights for same-sex co-parents, the Kentucky Court of Appeals ruled in Tilley v. Kilgore, 2009 Westlaw 485063, that a lesbian co-parent lacks standing to seek joint custody of the children she and her former partner were raising. The unanimous February 27 ruling means that the court will never consider whether the best interests of two young children would be served by preserving a parental role for both of the women. ...

The court found that under the relevant Kentucky statute, somebody who is neither a biological or adoptive parent of a child can only seek custody in one of three ways: by proving she is a de facto parent, by showing that the child’s legal parent is unfit, or by showing that the legal parent has expressly waived her “superior right to custody.”

The court found none of these exceptions applicable. To be a de facto parent, Tilley would have to meet the statutory requirement that she had served as the primary caregiver for the children. In this case, Judge Clayton observed, “Since both Kilgore and Tilley raised these children, there was no single primary caregiver. Tilley cannot be a de facto custodian because she provided for the children next to the biological parent and not in place of the biological parent.”

Labels: de facto parenting

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