Request By:
Mr. Guy E. Millward, Jr.
Attorney at Law
119 Cole Court
Barbourville, Kentucky 40906
Opinion
Opinion By: Robert F. Stephens, Attorney General; By: Charles W. Runyan, Assistant Deputy Attorney General
You request an Attorney General's opinion regarding the residency requirement set forth in the adoption statute, KRS 199.470(1). That subsection provides that "any person who is eighteen (18) years of age and who is a resident of this state or who has resided in this state for twelve (12) months next before filing may file a petition for leave to adopt a child in the circuit court of the county in which the petitioner resides. " (Emphasis added).
Subsection (1) of KRS 199.470, in terms of your question, has not undergone any change from the initial enactment in 1950 [1950 Acts, Ch. 125, § 10(1)]. An earlier statute [KRS 405.150(1), repealed in 1946] provided that any adult resident of Kentucky may petition county court, of the county of his legal domicile, for leave to adopt a child. There were no time limitations as to residency. Later, KRS 405.260(1) [repealed by subject 1950 legislation] provided that any adult who has resided in Kentucky for 12 months next before the filing of a petition may petition for adoption of a child. In this 1950 legislation the adoption statutes in KRS Chapter 405 were repealed and reenacted, with modification, as KRS 199.470-199.590. Welsh v. Young, Ky. 240 S.W.2d 584 (1951). KRS 199.470(1), as enacted in 1950 [1950 Acts, C. 125, § 10] read: "Any adult person who is a resident of this state or who has resided in this state for 12 months next before filing, may file a petition for leave to adopt a child in the circuit court of the county in which the petitioner resides. (Emphasis added).
From the above history of the legislation it appears that two concepts of residency were employed: (1) legal residence, i.e., a resident of Kentucky; and (2) a person who has merely resided in Kentucky for 12 months before filing. This becomes manifest when we consider that the term "a resident of this state", as it is used in KRS 199.470(1), really means a legal resident of Kentucky, a person domiciled in Kentucky. See page 1 of this opinion referring to an earlier form of the statute providing that any adult "resident of Kentucky" may petition county court, "of the county of his legal domicile" , for leave to adopt a child. (Emphasis added). In the controlling case of Nunn v. Hamilton, 233 Ky. 663, 26 S.W.2d 526 (1930), Judge Rees wrote that:
"Legal residence consists of actual residence at a place, coupled with intent to remain at such place." (Emphasis added).
On the other hand the phrase "resided in this state for 12 months," as it appears in KRS 199.470(1), merely indicates actual residence at a place, but does not amount to domicile since it does not include the intent to remain at such place. An actual residence indicates permanency of occupancy, as distinct from lodging, or boarding, or temporary occupation. Southeastern Greyhound Lines v. Conklin, 303 Ky. 87, 196 S.W.2d 961 (1946) 962.
A cardinal rule is that significance and effect shall, if possible, be accorded to every part of the act. George v. Scent, Ky., 346 S.W.2d 784 (1961) 789.
Thus we rationalize the inclusion in KRS 199.470(1) of the two concepts, legal residency in Kentucky and a residing in Kentucky for 12 months, by concluding that one concept involves a legal residence, as defined in Nunn v. Hamilton, above, and the other is merely residing at a place in Kentucky for 12 months minus the intent to remain there.
Under this analysis, it is our opinion that if the petitioner for adoption has legal residence in Kentucky then he qualifies to file. If he does not have legal residence in Kentucky but has resided in Kentucky for 12 months before filing, he is qualified to file for adoption. The statute couples the two elements, legal residence in Kentucky and residing for 12 months, by using the word "or". Black's Law Dictionary, at p. 1246, defines "or" as a disjunctive particle used to express an alternative or to give a choice of one among two or more things. The word "or" is defined in Webster's Seventh New Collegiate Dictionary, p. 593, as being used as a function word to indicate an alternative.