Court of Appeals Again Pleads for Legislative Guidance in Same-Sex Partners

Family Law Case Review
Case: A.C. v. N.J.
by Mike Kohlhaas, Bingham Greenebaum Doll

HELD: Trial court properly refused to enforce an agreement between Mother and her Partner, who did not give birth to Child, that Partner would be Child’s custodial parent as well.

HELD: Trial court applied the correct legal standard in reviewing Partner’s request for joint legal custody when the trial court concluded that Partner failed to rebut the presumption in favor of Mother as the natural parent.

HELD: However, Partner nevertheless had standing to seek visitation with Child, and the trial court’s decision that Partner lacked standing was erroneous.

NOTED: Indiana Court of Appeals again pleads for the General Assembly to provide legislative guidance in the area of same-sex parenting issues.

FACTS AND PROCEDURAL HISTORY:
In 2005, Mother and Partner began a same-sex relationship. In 2007, Mother and Partner held a commitment ceremony, and then decided to have a child together. Mother was artificially inseminated with donor semen, and gave birth to Child in 2008. Partner was present at the birth and cut the umbilical cord. For most of the two years following Child’s birth, the Mother, Partner, and Child functioned as a family unit. Mother was the primary caregiver for Child, and Partner was the primary income earner. The possibility of Partner adopting Child was discussed, but not acted upon.

In 2010, the relationship between Mother and Partner ended, when Child was just over two years old. For the next nine months, Mother allowed Partner to have liberal visitation, typically two or three overnights per week. However, in July 2011, Mother ended all contact between Partner and Child, due to Mother’s concerns about Partner’s “living arrangements and possible drug use.” Partner has not seen Child since 2011.

In early 2012, Partner filed a petition seeking custody of Child. At a hearing, Partner clarified that her request was for joint legal custody. The trial court denied Partner’s petition, from which Partner appealed.

Partner’s first issue on appeal was that the trial court erred by declining to enforce the agreement between Mother and Partner, that Partner would be Child’s second parent. Mother acknowledged the existence of that agreement, but asserted such an agreement was unenforceable under Indiana law. In reviewing the issue, the Court of Appeals reviewed the history of the A.B./King case from 2004-2005.  The facts of A.B./King were extremely similar to the instant case, and resulted in the Court of Appeals holding 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.” However, the Indiana Supreme Court granted transfer and vacated that opinion in full. Instead, the Supreme Court agreed that it was inappropriate for the trial court to have granted a motion to dismiss for failure to state a claim, but reached that conclusion on much narrower grounds: Indiana courts have the authority to place a child with a person other than the natural parent, where appropriate.

The Court of Appeals noted that when it decided A.B./King, it solicited guidance from the General Assembly on the issue. In the years since, there has been none. The Court of Appeals used the current case to again ask the General Assembly to provide clarity on these issues because “what began as a trickle is rapidly becoming a torrent” in terms of same-sex parenting cases.

The Court of Appeals further reasoned that, even though the Indiana Supreme Court did not expressly disapprove of its opinion in A.B./King, the fact that the opinion was vacated in full is good guidance that the Court of Appeals should not resolve the case the same way again. “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.” The Court went on to hold: “[W]e cannot conclude that the trial court erred in declining to enforce the agreement between Mother and Partner that Partner would be the Child’s parent as well.”

Finally, the Court of Appeals addressed the issue of Partner’s standing, as the trial court concluded that Partner lacked standing to seek visitation. The Court of Appeals provided an extended history of third-party visitation, from early cases common law cases through the Grandparent Visitation Act. The Court ultimately concluded that Partner had standing in this case based upon the Indiana Supreme Court’s decision in A.B./King, discussed above. There, even though the Indiana Supreme Court vacated the broad holding of the Court of Appeals, it nevertheless found that the trial court’s 12(B)(6) dismissal was inappropriate. “The Court’s conclusion that King’s petition survived a 12(B)(6) motion to dismiss for failure to state a claim necessarily indicates that at least some of the relief sought was not barred as a matter of law. . . . the minimum relief she sought was continued visitation with the child.”  Thus, the trial court in the instant case erred when it concluded Partner lacked standing.

The Court of Appeals affirmed the trial court in part, but reversed the trial court’s conclusion that Partner lacked standing to seek visitation with Child, and remanded the case to the trial court to reconsider Partner’s visitation request.

To view the text of this opinion in its entirety, click here: A.C. v. N.J.

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While significant efforts are made to ensure an accurate summary and reproduction of each opinion, readers are advised to verify all content and analysis with a traditional case law reporter before relying on the content and analysis offered here.

The Matrimonial Law Group of Bingham Greenebaum Doll, LLP is one of the largest full-service matrimonial and family law practices in the State of Indiana. We represent clients in a wide spectrum of family law matters, including premarital agreements, cohabitation, separation, divorce (especially involving high net worth individuals and/or complex asset issues), custody, parenting arrangements, adoption, and domestic partnerships. Bingham Greenebaum Doll, a multidisciplinary law firm serving regional, national, and international clients, is the fourth-largest law firm in Indiana. The firm’s main practices include corporate, property, litigation, labor, government law, and personal services law. Visit the firm’s website at www.bgdlegal.com.

ICLEF • Indiana Continuing Legal Education Forum, Indianapolis, IN

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