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Same Sex Couples – Family Law Issues

In June 2015, the United States Supreme Court ruled in Obergefell v. Hodges that the Fourteenth Amendment of the U.S. Constitution requires states to issue marriage licenses between two people of the same sex, and to recognize marriages between two people of the same sex when their marriage was lawfully performed and licensed in another state. As a result of this landmark decision, the law in Kentucky for same sex couples has immediately and dramatically changed.

Prior to June 2015, Kentucky’s constitution defined marriage as between a man and a woman, thereby prohibiting the county clerks to issue licenses to same sex couples, and also prohibiting the state’s judges and other officials to recognize the marriage of same sex couples legally married in other states. This caused a number of difficult issues from a legal perspective. Same sex couples, even those married in other states, could not jointly petition the court to adopt children, nor could they petition as a step-parent adoption. Many gay and lesbian couples that legally married in other states and later separated as residents of Kentucky were unable to obtain a divorce as opposite sex couples could, simply because the courts would not recognize their marriage in order to dissolve it. Same sex couples had to enter into contracts with one another to address property and custody issues that they were not able to legally address through the court system.

Now, since the high court’s ruling in Obergefell, same sex couples can get married in Kentucky. Married same sex couples in Kentucky can petition the courts to adopt children together. They can also now file for a step-parent adoption if only one of them is the legal parent of the child or children. Married same sex couples that have remained separated for years and unable to divorce can now file a Petition for Dissolution of Marriage in Kentucky, allowing them to finally legally part ways. Same sex couples are now afforded the same rights and privileges of opposite sex couples in the Commonwealth of Kentucky.

Despite the change in law, a number of interesting legal issues remain, specifically regarding same sex couples who never married but made the joint decision to raise children together as a family unit. The Kentucky Supreme Court published the decision of Mullins v. Picklesimer in 2010, which addressed custody issues between same sex couples. 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. This waiver can be accomplished by executing a shared custody agreement or co-parenting agreement expressly stating the couples’ intention to co-parent the child or children. It is unknown how Obergefell will affect the holding of this decision, if it will at all. The reality is that many same sex couples in Kentucky have separated after establishing a family, but before they were afforded the same legal rights to marry. Those couples have a unique but difficult legal dilemma in establishing custody rights for both parents.