Wednesday, November 13, 2013

Indiana Court of Appeals grants child visitation to same sex / gender partner following separation

13 November 2013

The Indiana Court of Appeals on 31 October 2013 issued an opinion that opens the door for same sex partners to seek visitation rights with a child following the separation of the “parents”. The opinion for publication [meaning it can be used as precedent in future cases] written by Friedlander, Judge Indiana Court of Appeals, appears to grant a partner in a same-gender relationship a parenting right similar to but not as full as that of a spouse following dissolution. However, there are particular circumstances in the immediate case that may be distinguishable from other parenting relationships.

Before proceeding further I would like to clarify the meaning that I attribute to some phrases that will be used throughout this writing. I prefer to use the term “same-gender” when referring to people with the same sex organs as I feel the term “same-sex” denotes a function or use of such sexual organs which implies a sexual relationship between the same-gender partners of which I believe is neither necessarily knowledge for the public forum nor distinguishable as a matter of law. In short, partners sexual activity is no one's business but their own and the law shouldn't make distinctions between parents based upon that activity. The second nuance is “step-parent”. I apply the term “step-parent” only to a person who has enlisted him or herself in the role of parent in lieu of a child's natural parent who has abnegated, abandoned or, due to death, ceased to perform the role of parent. In essence, a child at any time has only up to two parents. When a parent has remarried or taken in a subsequent partner acting in the role of spouse I use the term “subsequent spouse” or “subsequent partner” [who may be acting in a parenting role] as those are factual rather than subjective terms that imply a relationship with or duty to a child which may not exist. That is, while a remarriage is a factual function of law for which the term “spouse” is aptly applied I do not feel it is appropriate to expand that status to automatically include the performance of the multiple roles that a parent performs in relationship to a child simply by attaching the name “step-parent” to a person who has engaged in the act of marriage. To apply the term “parent” to a person entering a child's life while such child still has a natural parent acting in that role – providing love, nurturing, guidance, support and a bond that exist all the way down to the quantum level – is to diminish and disrespect the role and relationship of the natural parent with the child and is a disservice to the child.

Here is a synopsis of the ruling
During the course of their same-gender domestic partnership, Nicole Jasinski (Mother) and Amber Carpenter (Partner) decided to have a child together. Mother was artificially inseminated with donor semen and gave birth to C.J. (Child), and for a time, Mother, Partner, and Child functioned as a family unit. When Child was two years of age, Mother and Partner ended their relationship. Thereafter, Partner exercised regular visitation with Child for several months, until Mother stopped all contact between Partner and Child. Partner then filed a petition seeking sole custody[fn1] and visitation, which, following a hearing, the trial court denied.

When Child attended preschool, Mother listed Partner as the co-parent and emergency contact with the school. Mother and Partner discussed the possibility of Partner adopting Child, but no adoption proceedings were ever commenced. Following their separation and Mother's termination of Partner's contact with Child, Partner filed a custody petition in which she argued it was always the parties’ intent that both Partner and Mother would be considered Child’s parents and that she was a de facto custodian. She further asserted that it was in Child’s best interests for her to have custody and parenting time.

Nearly a decade ago, the appellate court first addressed the issue of whether two women in a same-gender domestic partnership who agree to bear and raise a child together by artificial insemination of one of the partners with donor semen are both the legal parents of the resulting child.[fn2] The court found that such a right existed but the following year, 2005, the Indiana Supreme Court vacated that opinion and in doing so effective stated that no such right exists.[fn3]

This most recent panel agreed with their 2004 colleagues who spoke as follows;
“no [legitimate] reason exists to provide the children born to lesbian parents through the use of reproductive technology with less security and protection than that given to children born to heterosexual parents through artificial insemination.” As we have recently observed in the context of same-sex adoptions, we cannot close our eyes to the legal and social needs of our society; the strength and genius of the common law lies in its ability to adapt to the changing needs of the society it governs.

“[O]ur paramount concern should be with the effect of our laws on the reality of children’s lives. It is not the courts that have engendered the diverse composition of today’s families. It is the advancement of reproductive technologies and society’s recognition of alternative lifestyles that have produced families in which a biological, and therefore a legal, connection is no longer the sole organizing principle. But it is the courts that are required to define, declare and protect the rights of children raised in these families, usually upon their dissolution. At that point, courts are left to vindicate the public interest in the children’s financial support and emotional well-being by developing theories of parenthood, so that “legal strangers” who are de facto parents may be awarded custody or visitation or reached for support. Case law and commentary on the subject detail the years of litigation spent in settling these difficult issues while the children remain in limbo, sometimes denied the affection of a “parent” who has been with them from birth.”

We encourage the Indiana legislature to help us address this current social reality by enacting laws to protect children who, through no choice of their own, find themselves born into unconventional familial settings. Until the legislature enters this arena, however, we are left to fashion the common law to define, declare, and protect the rights of these children. We, therefore, hold that when two women involved in a domestic relationship agree to bear and raise a child together by artificial insemination of one of the partners with donor semen, both women are the legal parents of the resulting child.
[emphasis supplied]

Justice Dickson noted that
“Indiana adoption law expressly addresses stepparent adoptions, permitting them if “the adoptive parent of a child is married to a biological parent of the child.” In all other cases, an adoption operates to divest the child’s parents of all rights with respect to the child. In addition, same-sex marriages are prohibited in Indiana. Even if King and [Benham] had not separated but were continuing to live together as same-sex domestic partners, it is my view that King could not lawfully adopt A.B. because stepparent adoptions require the adoptive parent to be married to the child’s parent, and same-sex marriages are not permitted. If a stepparent adoption is contrary to statute for same-sex domestic partners living together, it is likewise illegal after the termination of the couple’s relationship.”

In another 2005 ruling the appellate court found that “[b]ecause Stepfather is not a parent of the children, he does not have a constitutionally protected right to raise them.” [fn4] This follows an earlier decision analogous to the current case which stated that “[a] dissolution court does not have jurisdiction to enter a custody order regarding children born during a marriage but whose biological father was not the husband.[fn5] Although not married Mother and Partner herein are akin to a mother and subsequent husband.

The 2004 panel who stated that “both women are the legal parents of the resulting child” had their decision vacated by the Indiana Supreme Court the following year. Thus, if effect, upholding the opinion of Justice Dickson above which stated that it is not legally permitted.

The current panel went on to say;
“Our system of government entrusts the General Assembly, not the courts, to fashion a framework for deciding matters as tethered to social mores and sensibilities as this subject is. We feel the vacuum of such guidance even more acutely now than we did eight years ago, when King was decided. Indeed, what began as a trickle is rapidly becoming a torrent, and the number of children whose lives are impacted by rules that have yet to be written only increases with the passage of time. They, and we, would welcome a legislative roadmap to help navigate the novel legal landscape in which we have arrived.

It appears to us that the Court viewed a stepparent relationship as a strong indicator that a custodial and parental relationship exists. But surely custodial and parental relationships may exist with third parties other than stepparents. Indeed, the situation presented here is characterized by even stronger indicia of a custodial and parental relationship. This is so because the parties originally intended for the biological mother’s partner to fulfill the role of the child’s second parent and actively encouraged the development of a parental bond between the partner and the child.”

The current panel concluded that “in the particular factual circumstances of this case, a partner who did not give birth to the child has standing to seek visitation with the child. This is not to say that a former domestic partner is automatically entitled to visitation in these circumstances—it must still be established that visitation is in the child’s best interests.” [emphasis added] The current panel did not grant standing for Partner to be entitled to a joint custody arrangement relying upon existing statute which permits a non parent to seek “custody” but not a shared custody arrangement.[fn6] In the current case the panel, in denying custody, also relied upon a 2002 ruling by the Indiana Supreme Court which found that “[t]he trial court must be convinced that placement with a person other than the natural parent represents a substantial and significant advantage to the child.” This is a heightened standard than that faced by natural or adoptive parents upon a dissolution.

The current panel therefore reversed the trial court’s dismissal of Partner's claim to parentage for lack of statutory authority to seek visitation with Child. The other two judges on this panel, both concurring, are Baker and Vaidik. While granting standing to a same-gender partner, who acted as a parent, to seek visitation this panel did not grant a custody or parenting time right to the partner such as adoptive parents would have after a dissolution.

It would be readily conceivable to recommend avoiding these legal entanglements by having same gender couples use adoption as a way of ensuring that the partner of the mother is a legal parent to the child. But under Indiana's current statutory scheme this is not possible as Justice Dickson stated in his dissent in re: Paternity of A.B. [2005]. There he stated that “[i]n addition to the statutory requirement for a mother’s consent, Indiana adoption law expressly addresses stepparent adoptions, permitting them if “the adoptive parent of a child is married to a biological parent of the child.”(emphasis added).[fn7] In all other cases, an adoption operates to divest the child’s parents of all rights with respect to the child.[fn8] In addition, same-sex marriages are prohibited in Indiana.[fn9]

Even if adoption was an option it would not provide the custody and parenting time rights that natural parents would enjoy following dissolution. Instead, they would be bound to the standards for similarly situated same-gender parents where the adoptive parent is a mother's spouse who is not the biological parent of the child, or when neither parent is a biological parent to the child – adoptive parents.

Under the current circumstances when same-gender parents wish to establish a parenting relationship for a child born to one of the partners there should be a contract explicitly declaring the parenting relationship. Upon separation the partner would be able to seek visitation with the child consistent with existing standards for establishing the parent-child relationship.

Legislation needs to be introduced in Indiana to further declare and define the parenting rights and responsibilities of same-gender parents. I am scheduled to meet with legislators next week and will be pushing for a bill to address this issue in the upcoming session. Regardless of the gender of the “parents” of a child I feel that when two people love, care for and support a child as a family it is presumptively in the best interest of the child to maintain a relationship with both parents. To distinguish the level of a parent-child relationship based upon the gender likeness or difference of the parents is arbitrary and does not serve the interest of the most important party – the innocent and vulnerable child.

[fn1] While Partner had sought “sole” custody in her petition, she revised that to “joint” custody when the matter came on for hearing.
[fn2]In re A.B., 818 N.E.2d 126 (Ind. Ct. App. 2004), vacated by fn3
[fn3]King v. S.B., 837 N.E.2d 965 (Ind. 2005).
[fn4] In re A.I., 825 N.E.2d 798, 812 (Ind. Ct. App. 2005)
[fn5] Russell v. Russell, 682 N.E.2d 513, 517 (Ind. 1997)
[fn6]Ind. Code § 31-17-2-3
[fn7] Ind. Code § 31-19-15-2(a)
[fn8] Ind. Code § 31-19-15-1.
[fn9] Ind. Code § 31-11-1-1.

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