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Thursday, October 31, 2013

Ind. Decisions - "In same-sex couple dispute, COA calls for lawmakers to refine definition of 'parent'"

A good story this evening from Tim Evans of the Indianapolis Star on today's COA decision in A.C. v. N.J. (see the ILB's earlier analysis here). Some quotes from the beginning of the long story:

What, exactly, constitutes a parent?

Is parenthood determined solely by a biological tie, or can it be defined by a commitment to bring a child into the world and raise that child as your own?

There are no clear answers in Indiana law — and that, legal experts say, is leaving a growing number of Hoosier children in limbo.

The Indiana Court of Appeals, in a decision issued Thursday in a same-sex couple’s child custody dispute, echoed that sentiment by renewing a nearly decade-old call for direction from lawmakers.

“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,” Judge Ezra H. Friedlander wrote in the opinion.

“They, and we, would welcome a legislative roadmap to help navigate the novel legal landscape in which we have arrived.”

Without clear direction from the legislature, legal experts say, courts have struggled and will continue to struggle to resolve an influx of visitation, custody and support cases involving children from same-sex and other non-traditional families.

In some cases, including the one that prompted the appellate decision, local judges have ruled that they do not have the latitude to even take a child’s best interest into account. The rulings in effect can suddenly cut a child off from one caring “parent” when the biological parent ends a relationship.

Indiana’s law barring same-sex marriage and the recognition of such marriages and civil unions from other states contributes to the lack of clarity.

The Court of Appeals made a similar plea for direction in a 2004 ruling: “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.”

More from the story:
Friedlander’s opinion — which was affirmed by the court’s newly named chief judge, Nancy Vaidik, and judge John Baker — said “the existing statutory framework” does not address or contemplate the growing 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,” Friedlander wrote.

“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.”

ILB: The leadership of our upcoming General Assembly has publicly committed to passing for a second time and placing on the 2014 ballot HJR 6 (see also this post from 8/25), which would add a new Section 31 to Article 1 of the Indiana Constitution. Article 1 is the State's Bill of Rights. The new section would read:
Section 38. Only a marriage between one (1) man and one (1) woman shall be valid or recognized as a marriage in Indiana.
A legal status identical or substantially similar to that of marriage for unmarried individuals shall not be valid or recognized.
So, some might say, be careful what you ask for -- although social change is creating more and more issues that do not fit within the current statutory framework, our General Assembly, were it to take up the problems outlined by these decisions, at present appears unwilling or unable to work to adapt our laws to take into account the "current social reality" and changing "social mores and sensibilities."

Posted by Marcia Oddi on October 31, 2013 11:05 PM
Posted to Ind. App.Ct. Decisions