Non-biological “parent” of child in same-sex relationship found not be de facto custodian and biological parent did not waive her superiour right of custody and no claim of unfitness results in no standing to assert custody: PICKLESIMER v. MULLINS

CIVIL PROCEDURE:  Jurisdiction, venue, entry of apperance in custody issue
FAMILY LAW:  Non-biological "parent" of child in same-sex relationship found not be de facto custodian and biological parent did not waive her superiour right of custody and no claim of unfitness results in no standing to assert custody
DATE RENDERED: 3/28/2008

Affirming in part, reversing in part and remanding Garrard Circuit Court

The facts of this dispiriting case will take some time to recite. Two women, Phyllis and Arminta, were, to quote the COAs, "engaged in a five-year lesbian relationship during which time they lived together." The women decided to "parent a child together," and they agreed Phyllis would be artificially inseminated by a donor the women selected from the internet. The CAs noted that the parties agreed they made the decision to conceive and raise the child together.  Phyllis subsequently gave birth to their son, Zachary.

The parties’ relationship suffered when Phyllis suspected Arminta of having an affair, and they separated on and off between 2004 and 2005; the relationship came to an end in February, 2005. During the time they were together, the women lived in the same home, and while the residence, vehicles and a checking account were in Phyllis’ name, both women agreed that Arminta participated in supporting Zachary emotionally and financially. Zachary had some health problems, and it was not uncommon for Arminta to awaken at night and care for him when his heart monitor went off. Meanwhile, Phyllis cared for him while Arminta was at work. Zachary called Phyllis "mommy" and Arminta "momma." Arminta claimed that from April 2006 to September 2006 the parties lived apart but continued to exercise timesharing on an equal basis with Zachary.

While the parties were living together, Arminta was concerned about hospitals, schools, etc. not viewing her as Zachary’s legal parent without some court determination declaring her as such, and both women agreed some legal action was necessary in case Phyllis was unable to make decisions for Zachary due to her death. The women lived in Lincoln County but petitioned the Garrard Circuit Court to recognize Arminta as a de facto custodian in an effort to keep the proceedings from becoming public in their own county (and in part to avoid review by Lincoln’s family court judge). While Arminta’s attorney only represented her, both parties went to the attorney’s office on January 20, 2006. Arminta signed a verified petition alleging she was the Zachary’s de facto custodian, and the petition, as well as an Agreed Judgment of Custody and order, read that Arminta was the primary financial provider and primary caregiver of Zachary for a period of time of not less than six months from his date of birth until January 20, 2006. Phyllis filed an entry of appearance and signed the agreed order. Without conducting a hearing or taking any evidence, the trial court signed the agreed judgment and entered it on February 3, 2006. No summons was issued by the clerk of the court at the time the documents were filed, but neither party challenged the lack of notice.

In September of 2006, Phyllis stopped Arminta’s contact with Zachary, alleging that Arminta had violated an oral agreement that they were never to leave Zachary with anyone other than a family member (Phyllis said Arminta left him with a man who allegedly assaulted Arminta’s new partner). Arminta then filed a motion requesting she be granted joint care, custody and control of Zachary and declaring her as primary residential custodian. Phyllis retained counsel and filed a motion to dismiss, arguing Garrard Circuit Court lacked jurisdiction because no summons was ever filed; the entry of appearance was invalid because it was signed prior to filing the petition for custody; and venue was improper. Alternatively, Phyllis argued to set aside the agreed judgment under CR 60.02 on the basis of mistake. Prior to the hearing on these issues, Arminta filed a motion to grant her sole custody of Zachary because Phyllis unilaterally withheld him from her and acted in a way detrimental to his best interests.

The trial court referred the case to a DRC who held a hearing and recommended: (1) the trial court deny Phyllis’ motion to set aside the judgment on the grounds of lack of summons, insufficiency of entry of appearance, lack of venue and fraud as to the relationship between her and Arminta; (2) the trial court grant the motiont to set aside the judgment as void on the grounds of failure of Arminta to qualify as de facto custodian; (3) to find that Phyllis waived her superior right to custody in favor of Arminta as joint custodian; (4) the parties be awarded joint custody of Zachary; (5) Phyllis be designated primary residential custodian; (6) Arminta be granted parenting time pursuant to a schedule used by the parties in the summer of 2006; (7) the Garrard Circuit Court visitation guidelines govern any parenting time not agreed upon; and (8) neither party be required to pay child support. Both parties filed exceptions, and the trial court denied same, adopting all the recommendations on December 1, 2006.

On December 8, 2006, Arminta filed an emergency protective order on behalf of herself and Zachary in Lincoln County; relying on the "child in common" standard for an EPO, she alleged an altercation arose between herself and Phyllis in a custody exchange. In an ex parte order the Lincoln Family Court granted Arminta’s request for sole custody of Zachary, and the case was transferred to Garrard for a hearing on December 21; Phyllis had no contact with her son in the duration. The trial court heard the case on the 21st and restored Phyllis’ timesharing rights with Zachary that day. Believe it or not, some other procedural matters also occurred which shall be dispensed with, as they have little bearing on the issues of this case. This appeal and cross-appeal followed.

The CAs review child custody matters on a clearly erroneous standard. Phyllis first argued that Garrard CC lacked jurisdiction and venue to issue Zachary’s custody orders, specifically because Arminta failed to have a summons issued upon the filing of the petition. The CA disagreed, holding that Phyllis signed an entry of appearance simultaneously with the petition and conceded to having full knowledge of the proceedings and understanding the contents of the documents she was signing and the fact that they would be submitted to a court. Further, once they were submitted, Phyllis never filed a notice of appeal, asked for a review of the petition or questioned its validity. She also acted as though the judgment were valid by providing Arminta parenting time pursuant to the petition. The result: the purpose of the summons was fulfilled by the entry of her appearance, and she was definitely on notice of the action.

The CA rejected Phyllis’ argument that the entry of appearance was invalid because it predated the filing of the petition, holding that "it is elementary law that a party who enters his appearance to any suit by filing an answer or otherwise responding waives the service of a summons." Brock v. Saylor, 300 Ky. 471, 189 S.W.2d 688, 690 (1945).

Phyllis’ venue argument was also dropkicked…the CAs noted that while it is the usual practice to make custody decisions in the county of the child’s usual residence, KRS 452.050 and the notion of waiver operated to allow the case to be heard in Garrard CC.

That pretty mu
ch did it for Phyllis’ arguments…the CAs then turned to Arminta, who first argued that the agreed judgment was valid for all legal purposes because Phyllis signed it knowingly and voluntarily. She also contended the trial court erred in finding a hearing was necessary because the parties had stipulated facts prior to the entry of the order, and she argued the trial court abused its discretion in setting aside the agreed judgment of custody entered 2/3/06.

The CAs agreed that Arminta did not qualify as a de facto custodian, looking to the definition of same in KRS 403.270, which states that a de facto custodian must be shown by clear and convincing evidence to have been the child’s primary caregiver and financial supporter for six months or more if under three years of age. The trial court vacated the judgment of custody pursuant to CR 60.02 on the grounds of "perjury or falsified evidence." Phyllis established that Arminta was NOT in such a position, that she only signed the petition to give Arminta legal authority to make health-related decisions in the event of Phyllis’ death, and that she took issue with the language of the petition, but that she thought it was the only way to ensure Arminta would be able to care for Zachary in her absence. Both parties’ testimony established, though, that Arminta was never the primary caregiver or financial supporter for Zachary, but instead both parties did these things jointly. Therefore, Arminta did not satisfy her burden of showing de facto custodianship, and while her argument that agreed orders are routinely submitted to the courts was true, custody matters are different because of the best interests of the child standard.

The CAs then pass a little judgment on the "duplicitous and fraudulent" conduct of the parties, "regardless of its ‘noble’ intent." They held that the parties presented the documents to the court in an effort to avoid a full-blown hearing, and that such conduct was not only perjured or falsified evidence under CR 60.02(c), but also constituted a fraud on the proceedings under CR 60.02(d). To be sure, the CAs noted that perpetrating a fraud on the court does not necessarily have to arise from a wicked motive or deliberate deceit, but leading astray, throwing off guard or lulling to security and inaction falls under this mantle as well. The CAs, convinced the parties perpetrated such fraud, affirmed the trial court’s decision to set aside the agreed judgment.

Then the CAs noted that setting aside this judgment effectively denied Arminta, Zachary’s "momma" who jointly cared for him financially and emotionally all of his life, standing to seek custody. The trial court had decided that result was unjust and unreasonable and remedied the situation by holding Phyllis waived her superior right of custody by acknowledging Arminta was Zachary’s parent and allowing her extensive visation and timesharing with him. Then after determining it was in the best interests of Zachary, the trial court awarded joint custody to Arminta. The CAs examined the notion of waiving a superior right to custody and considered some factors to help determine whether a parent has done so listed in Vinson v. Sorrell, 136 S.W.3d 465 (Ky., 2004), among which are: the length of time the child has been away from the parent; circumstances of separation; age of the child when care was assumed by non-parent; time elapsed before the parent sought to claim the child; and frequency and nature of contact, if any, betwen parent and child during non-parent’s custody. The CAs held that there was no basis for the trial court to find Phyllis waived her superior right to custody, noting that the child had only been out of her custody two weeks of his life. They also found Phyllis never "waived" custody as that legal term is understood.

So, Zachary’s "momma," who supported him financially and emotionally throughout his young life, was found not to be a de facto custodian, and as she could not show Phyllis was unfit or had waived her superior right to custody, the CAs held she had no standing to assert custody.

Cherry Henault Guarnieri

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