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Thursday, September 16, 2004

Indiana Decisions - Same-sex custody issues

The Indiana Law Blog had two entries earlier this month on the the custody case in Noblesville involving, as the Indianapolis Star reported at the time: "A couple sparring over custody of their son, [who] will square off today in a legal fight that also tests state law. Both parents are women, and each is the mother of 4-year-old Luke Wihebrink -- one biologically, the other by adoption."

The first entry, dated 9/3/04, reported that the dispute would be heard before Judge Bernard L. Pylitt that day, and gave a good deal of background. The second entry, dated 9/4/04, reported on the outcome of the case.

A story today in the Star, titled "Judge seeking custody laws in same-sex cases," reports:

A judge in a custody dispute between parents who are each the boy's mother is urging legislators to help jurists in his position.

"Unfortunately, the Indiana General Assembly has not yet created a vehicle for a court to address child custody disputes when a same-sex relationship terminates," Hamilton Superior Court Judge Bernard "Buddy" Pylitt said in a recent order setting a final hearing in the case for Jan. 31.

"The General Assembly is encouraged to address this vacuum at its earliest convenience."

It is unclear whether this order was issued on Sept. 4th or later. [The ILB would be pleased to post a copy of the order, if one is available -- there are no clues in the stories as to who the counsel are, etc..] More quotes, as reported by the Star, from the order:
While typical adoption statutes do not allow a mother to retain parental rights, judges across the country have begun to permit such equal-parent and same-sex adoptions.

In general, they reason, adoption laws based on the best interests of a child should allow for societal changes that recognize same-sex partnerships and any parental benefits they bring.

Pylitt said, however, that a new challenge arises when those relationships end, further widening the gap between how law is written and how it is applied.

"It would be very easy for this court to 'close its eyes' . . . by simply finding no jurisdictional basis and dismissing all pending petitions," Pylitt said in noting the lack of a guiding statute that has judges employing modern-day interpretations as they see fit.

"However, to do so would require that the court ignore the best interests and needs of an innocent 4-year-old boy, who is deeply loved by both of his mothers."

Posted by Marcia Oddi on September 16, 2004 01:22 PM
Posted to Indiana Decisions