Kentucky Supreme Court to decide if unmarried couples can adopt a child

FRANKFORT, Ky. (CN) — A cohabitating, unmarried couple in Kentucky who have had custody of their biological granddaughter since the day she was born fought Wednesday for the right to adopt her before the commonwealth’s high court.

Kentucky’s adoption statutes are silent as to whether unmarried couples can adopt a child, and the Cabinet for Health and Family Services improperly assumed the intent of legislators when it denied the couple’s petition, they said in their 2023 petition.

“For all eight years, they have raised this infant as their own child,” attorney Marsha Taylor from McKee, Kentucky argued Wednesday on behalf of the couple, who proceeding under the pseudonyms G.G. and T.S. “We are depriving the child of a family solely because they choose not to be married.”

Justice Shea Nickell peppered the attorney with questions about statutory interpretation and legislative intent.

“Aren’t you asking us to recognize a de facto marriage? Strict steps have to be followed for two individuals to be married, aren’t there specific statutory steps required here?” he asked.

“They have no desire to be married,” Taylor answered. “The statute allows adoption by any individual over the age of 18.”

“But the statute requires marriage for a joint adoption,” Nickell replied. “It says any ‘one,’ not any couple.”

“We believe the case law and interpretation have been wrong all this time,” the attorney said.

The couple is hoping to reverse denials from the health cabinet and the Jackson County Circuit Court, along with that of the Kentucky Appeals Court, which upheld the initial denial.

“The cabinet and court are assuming, presuming, and inferring that the legislature must not have intended for unmarried couples to adopt. A comprehensive review of the entirety of all adoption related statutes as well as a historical look back at all child related statutes, leads one to the opposite conclusion,” they said in their brief to the state Supreme Court.

But the Commonwealth of Kentucky argued Wednesday the lack of express statutory language permitting adoptions by unmarried couples required the rejection of G.G. and T.S.’s petition.

Attorney LeeAnne Applegate, Deputy General Counsel for the cabinet, emphasized her client made no judgment regarding the fitness of the couple to adopt the child and merely maintained the status quo regarding interpretation of Kentucky law.

“All my client did was send an error message and say the petition is missing a piece of information,” Applegate told the court. “Our position is that we are not the proper agency to change the interpretation of the statute.”

In its brief, the commonwealth emphasized allowing such an adoption would endorse common law marriage, which is not recognized in Kentucky.

“As with filing taxes or obtaining health insurance, there is no number of years or level of commitment which entitles an unmarried couple to the rights and obligations of a legally married couple,” it said.

As he had with her opposing counsel, Nickell questioned the commonwealth’s attorney about legislative intent.

“Don’t we presume the legislature knew what it was doing when it crafted the language in this statute?” he asked.

“Yes,” Applegate said. “The adoption branch told us, ’this is what we’ve always done,’ and at least for the past decade this has been our policy.”

In her rebuttal, Taylor urged the court to allow her clients to proceed with the next steps of adoption.

“I think the circuit court judge was disappointed he had to rule this way, he was the one that told me to appeal,” she said. “What is accepted is not always what is correct. Why should a child be raised in foster care when we have parents willing to raise them?”

No timetable has been set for the court’s decision.

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