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Thursday, October 31, 2013

Ind. Decisions - COA writes today of the rights to joint custody by a same sex, non-birth mother when the relationship has ended

The case today, out of the Elkhart Superior Court, is A.C. v. N.J, a 21-page opinion by Judge Friedlander.

First, a little history. On Nov. 24, 2004, the COA decided the case of A.B. v. S.B. The opinion was written by Judge Friedlander. See the ILB summary at the end of this 2004 post, prefaced by:

[Note: This is a significant decision concerning the rights of domestic partners with respect to a child conceived by artificial insemination. I have posted it as an easier-to-read PDF document, accessible via the link above. It also may be of significance that Judge Friedlander is on the panel that heard oral arguments in Morrison v. Sadler, concerning same-sex marriage, on Jan. 12, 2004, now more than ten months ago -- see this ILB entry from 9/16/04.]*
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*[Note from 10/31/13] Morrison v. Sadler was not decided by the COA until Jan. 20, 2005. J. Friedlander wrote a concurring opinion.
On Nov. 23, 2005, our Supreme Court ruled in A.B., now referenced as Dawn King v. S.B. (In re Parentage of A.B.). Justice Sullivan wrote the 4-page opinion, vacating the COA decision:
Dawn King seeks a judicial declaration that she is entitled to parenting time rights, child support obligations, and certain other parental rights and responsibilities with respect to a now six-year-old child, A.B. The trial court dismissed the lawsuit under the authority of Indiana Trial Rule 12(B)(6) for “failure to state a claim upon which relief may be granted.” The Court of Appeals reversed, holding that by virtue of her agreement with A.B.’s mother, King is a “legal parent.” In re Parentage of A.B., 818 N.E.2d 126, 132 (Ind. Ct. App. 2004). We grant transfer and thereby vacate the opinion of the Court of Appeals. Ind. Appellate Rule 58(A). * * *

As previously mentioned, we grant transfer, vacating the opinion of the Court of Appeals. Ind. Appellate Rule 58(A). We also reverse the trial court’s dismissal of King’s complaint and remand this case to the trial court for further proceedings.

Boehm and Rucker, JJ., concur. Shepard, C.J., concurs with separate opinion. Dickson, J., dissents with separate opinion.

Justice Dickson wrote an 8-page dissent - some quotes from the beginning and end:
The majority opinion today permits a declaratory judgment action to be pursued by a woman seeking to establish her “co-parentage” of a minor child conceived by artificial insemination and born to another woman during the two women’s relationship as domestic partners. I dissent, believing that the plaintiff’s action fails to state any claim upon which relief can be granted. Indiana Trial Rule 12(B)(6). I reach this conclusion for several reasons, chiefly the following: (1) permitting this proceeding to continue disregards Indiana’s adoption laws, particularly the statutory requirement for the mother’s consent to an adoption; (2) reinstating this declaratory judgment action raises grave questions regarding whether such device may be used by various other people, who are not natural parents of a child, to bypass our adoption laws and to intrude upon the lawful parental rights of others; and (3) advancing special policy interests that have not become well-established changes in society exceeds an appropriate exercise of common law jurisprudence. * * *

Because I believe that the plaintiff’s action is precluded by existing statutes governing adoption, and that the judiciary serves best when it refrains from intruding into the legislature’s prerogative to determine public policy on social issues, I respectfully dissent.

In today's opinion, 8 years later, Judge Friedlander writes, beginning at p. 6:
Nearly a decade ago, this court first addressed the issue of whether two women in a same-sex 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. In re A.B., 818 N.E.2d 126 (Ind. Ct. App. 2004), vacated by King v. S.B., 837 N.E.2d 965 (Ind. 2005). In that case, King and Benham lived together in a same-sex domestic relationship for nearly nine years. The couple participated in a commitment ceremony and held themselves out to their families, friends, and communities as being committed domestic partners. Several years later, the couple decided to raise a child together and agreed that Benham would be inseminated with semen donated by King’s brother. All parties involved intended for King and Benham to be the co-parents of the resulting child. King was present for and participated in A.B.’s birth, and subsequently acted as A.B.’s second parent. Additionally, King filed a petition to adopt A.B. with Benham’s consent, but when the couple briefly separated prior to the completion of the adoption, Benham withdrew her consent. The couple subsequently reconciled, but did not pursue the adoption further. King and Benham ended their relationship in January 2002, and King thereafter paid monthly support and had regular and liberal visitation with A.B. until July 2003, when Benham unilaterally terminated visitation and began rejecting support payments.


Thereafter, King filed a declaratory judgment action seeking to be recognized as A.B.’s legal parent, with all the rights and obligations attendant to that status. Alternatively, the complaint asserted that even if King was not A.B.’s legal parent, she was nonetheless entitled to continued visitation because she had acted in loco parentis and in a custodial capacity. Benham filed a motion to dismiss the complaint pursuant to Ind. Trial Rule 12(B)(6) for failure to state a claim on which relief may be granted, which the trial court granted. This court reversed, reasoning as follows:

[W]e agree with [King] that “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 in the original]
Were it still good law, In re A.B. might be dispositive. Our Supreme Court, however, granted transfer, vacating our opinion in full. * * *

Justice Dickson dissented, raising a number of concerns related to the majority’s holding, which he characterized as “permit[ting] a declaratory judgment action to be pursued by a woman seeking to establish her ‘co-parentage’ of a minor child conceived by artificial insemination and born to another woman during the two women’s relationship as domestic partners.” * * *

Justice Dickson also expressed concerns that the majority’s holding would “open a veritable Pandora’s Box of troublesome questions regarding” who might be permitted to seek parental rights notwithstanding opposition by the child’s biological parent, and opined that extending such rights to only former same-sex partners “would raise grave questions” under article 1, section 23 of the Indiana Constitution. * * *

He further contended that “[t]he common law should not, in my opinion, be used to provide non-statutory privileges arising out of same-sex domestic relationships when, as here, not only is Indiana public opinion deeply fractured, but also a significant majority of Indiana citizens favor a public policy that does not promote same-sex families.” In support of this assertion, Justice Dickson cited Indiana’s statutory prohibition against same-sex marriage, as well as the General Assembly’s adoption of a resolution calling for a constitutional amendment prohibiting same-sex marriage. * * *

Since King, the status of the law surrounding a lesbian partner’s right, if any, to enjoy the rights of a legal parent of a child born to her partner under the circumstances presented here remains uncertain. When this court decided In re A.B., we solicited guidance from the General Assembly on this issue. In the years that have passed since then, none has been
forthcoming. The existing statutory framework does not contemplate the increased use of assisted reproductive technologies. Accordingly, it provides no guidance in situations where an intended parent lacks a genetic connection to the child. That deficiency is exacerbated by the growing recognition of less traditional family structures. 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. * * *

In the absence of a legislative directive, if full parental rights are to be recognized in a former same-sex partner under the circumstances presented here, that recognition must come from our Supreme Court.

After the discussion of parenthood ("we cannot conclude that the trial court erred in declining to enforce the agreement between Mother and Partner that Partner would be Child’s parent as well"), and a denial of joint custody ("we cannot conclude that the trial court erred in declining to enforce the agreement between Mother and Partner that Partner would be Child’s parent as well."), the Court today looks at the question of whether Partner has standing to to seek visitation with Child, and concludes:
We believe the Court’s decision in King v. S.B. signaled its amenability to expanding the class of petitioners with standing to seek third-party visitation to include individuals situated similarly to Partner. Thus, 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. We therefore reverse the trial court’s conclusion that Partner lacked standing to seek visitation with Child and remand with instructions to reconsider Partner’s request for visitation under the standard set forth in our third-party visitation cases.

Affirmed in part, reversed in part, and remanded with instructions.

BAKER, J., and VAIDIK, J., concur.

Posted by Marcia Oddi on October 31, 2013 03:09 PM
Posted to Ind. App.Ct. Decisions