Being the Breadwinner Not Enough

Lesbian co-parent supported the family, but now denied right to see couple’s adopted daughter

Who cares about the best interest of children when their parents split up?

Apparently not the Kentucky Supreme Court.

At least that’s the case if both parents are women, only one of whom is the child’s legal adoptive parent, and the “non-legal” parent is out being the principal breadwinner rather than at home acting as primary caregiver.

A unanimous ruling from the court on June 15 could be exhibit A in the case for why screwed-up family law doctrines in many states are inadequate to meet the needs of contemporary families, as well as a demonstration of how courts that refuse to exercise their equitable powers for the benefit of children’s best interest are mired in 19th century formalism.

One would expect better from the Kentucky Supreme Court, which, after all, invalidated the state’s sodomy law back in the days before Lawrence v. Texas.

According to Chief Justice Joseph Lambert’s opinion, Brenda Fawbush and Teresa Davis were in a “cohabitational relationship” for about eight years. (That phrase alone is warning that an unsatisfactory conclusion is to follow.) The couple concluded that joint adoption by same-sex couples was not an available option in Kentucky, so Davis was the single adoptive parent of their daughter. Fawbush claims that Davis agreed to execute various documents to protect her rights, but they never got around to it.

The women jointly raised their daughter for six years, Fawbush earning most of their income and Davis devoting a greater portion of her time to taking care of the child. When the child was six, her parents split up, and Davis, the legal parent, retained custody and denied contact to Fawbush, who hasn’t seen her daughter for three years now.

Fawbush sued, seeking a designation as a “de facto custodian” entitled to share custody of her daughter. The trial court found that Fawbush fell short of the test for that status, which involves demonstrating that one has acted as the child’s primary caregiver. But Fawbush spent much of her time outside the home supporting the family and Davis was the primary caregiver, so the breadwinner did not qualify.

Though the trial judge assured Fawbush that she could present other legal theories if she failed in her de facto custody claim, in the end her case was dismissed with a finding that there was no other basis for her to claim parental rights. An appeals court and the Supreme Court upheld that dismissal.

The Supreme Court found that its earlier freedom to craft solutions using equitable theories had been curbed by the adoption of Kentucky’s Uniform Child Custody Jurisdiction Act. Specifically contrasting its ruling with the recent Washington Supreme Court decision allowing a co-parent to seek custody under similar circumstances, Lambert pointed out that Washington State does not have a de facto custodian statute, so the courts there remain free to exercise more general equitable powers.

Nowhere in the opinion is there any indication that the court concerned itself with the child’s best interest, which is usually a critical question in custody disputes.

The only silver lining in this case is that the Supreme Court did not categorically reject the idea that a same-sex co-parent could seek legal custody—but it limits that right to cases where the plaintiff can prove that she or he was a primary caregiver for the child. According to Shannon Minter, an attorney for the National Center for Lesbian Rights, the ruling does not necessarily preclude both parents from being primary caregivers, though that analysis may be unduly optimistic since the word primary clearly connotes a ranking among caregivers.

Minter assisted Louisville attorney Bryan Daniel Gatewood in the state Supreme Court appeal.