Indiana Family Lawyer Blog
The Indiana Court of Appeals upheld a lower court’s decision not to enforce an agreement between Mother and her Partner, who did not give birth to Child, that Partner would be Child’s custodial parent.
During the course of their same-sex domestic partnership, N.J. (Mother) and A.C. (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. After Child’s birth, Mother, Partner, and Child lived together as a family unit for over two years, with the exception of an approximately two-month period shortly after Child’s birth when Partner moved out due to difficulties in her relationship with Mother. During the time they all lived together, Mother was Child’s primary caregiver and did not consistently work outside the home. Partner worked and provided financial support for the family for the majority of this time.
When Child was two years old, 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 joint custody and visitation, which the trial court denied. After Child’s birth, Mother, Partner, and Child lived together as a family unit for over two years, with the exception of an approximately two-month period shortly after Child’s birth when Partner moved out due to difficulties in her relationship with Mother. During the time they all lived together, Mother was Child’s primary caregiver and did not consistently work outside the home. Partner worked and provided financial support for the family for the majority of this time.
This ruling has little to do with Indiana court’s stance on same-sex marriage, but demonstrates the necessity for same-sex couples to proceed with a second-parent adoption in these types of situations. Had the Partner adopted the child at birth, the Partner would have had the same standing with the court as the biological Mother. A second parent adoption in these situations can also provide many benefits:
- Second parent adoption allows the child to have two legal guardians.
- The child’s right to maintain a continuing relationship with both parents is reserved.
- It protects both parents by giving each a legally recognized parental status
It also should be noted that the Indiana Court of Appeals again pleads for the General Assembly to provide legislative guidance in the area of same-sex parenting issues.