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NPO publishes blog articles to inform and to stimulate conversation about issues of importance to NPO's mission.  All blog articles express the opinions of the authors as individuals and do not necessarily reflect the views of National Parents Organization, its Board of Directors, or its executives.  

December 23, 2018 by Robert Franklin, Member, National Board of Directors, National Parents Organization

A recent appellate court decision in Kentucky casts doubt on the future of parental rights for unmarried same-sex partners.

Teri Whitehouse and Tammie Delaney were partners. The mutually agreed that Delaney would become pregnant via a sperm donor.

In her Circuit Court ruling, Judge McDonald had found that Teri Whitehouse and Tammie Delaney were in a romantic relationship and both fully participated in the decision to have a child, jointly chose a sperm donor, and held themselves out to the public as the child’s parents. The women had a commitment ceremony after the birth of the child, who referred to Whitehouse as “Momma.”
So Delaney was biologically related to the child, but Whitehouse was not. On that slender reed, Whitehouse was ruled to have no parental rights to custody or parenting time.

A previous Kentucky case, Mullins vs. Pickelsimer, established that, in unmarried same-sex relationships, the person with no biological connection to the child has no parental rights unless the other person’s behavior constitutes a waiver of his/her rights to exclusive custody and 100% parenting time.

In other words, Mullins leans strongly toward a biological parent’s having full parental rights while the other person has none. Although the trial court judge ruled that Whitehouse had done enough to establish the waiver on Delany’s part, the appellate court disagreed, giving sole custody to Delaney.

Now, to say the least, Mullins looks like an odd duck. How it makes sense for a child to be denied the love and care of one person because she doesn’t (a) have a biological relationship with the child and (b) the biological parent managed to thwart the other’s efforts at parenting is a mystery insoluble by me. After all, plenty of people – adoptive parents, stepparents - who raise kids don’t have a biological relationship to them.

But what most strikes me is the elephant in the room – Kentucky’s passage of a law that presumes equal parenting to be in the best interests of children. It says nothing about the sex of the parents or distinguishes between same-sex and opposite-sex relationships. And of course it says nothing about married vs. unmarried parents. Its purpose is to establish in law the importance of children having meaningful relationships with the adults who brought them into the world and who care for them. The child in the Delaney-Whiteside case called Whiteside “Momma,” doubtless because she saw her that way. That the appellate court disagrees shouldn’t be what decides the child’s ability to maintain a relationship with the woman she considers one of her parents.

I fully understand that it’s at least theoretically possible that a same-sex couple could produce a child and the non-biological parent could simply move on and, at some later date, demand parental rights. It would be appropriate in such a case to deny him/her. But Whiteside clearly wasn’t one of those people. At least the child didn’t think so.

Clearly, it’s the policy of the State of Kentucky to back equal parenting of children. This case and Mullins are at odds with that policy and should be reviewed in light of it.

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