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Indiana Appeals Court Won’t Let Lesbian Partner Sue for Custody, but Allows Visitation Claim to Continue

Posted on: November 5th, 2013 by Art Leonard No Comments

A three-judge panel of the Court of Appeals of Indiana, pointing out that it was bound by prior state supreme court precedent, rejected a claim by a lesbian co-parent that the trial court erred in not awarding her joint custody of the child she was raising with her former partner.  However, the court said that she should be allowed to seek visitation rights, finding that there was no binding precedent against this and it would be in the best interest of the child to allow such a case to proceed.  A.C. v. N.J., 2013 Ind. App. LEXIS 545 (Oct. 31, 2013).

The scenario in this case is fairly typical for a dispute between former lesbian partners about child custody and visitation.  N.J. (the birth mother) and A.C. (the birth mother’s former partner) had a commitment ceremony in 2007 after they had been living together for two years.  They also decided to have a child, and N.J. became pregnant through donor insemination and bore the child in April 2008.  A.C. was present at the child’s birth.  The two women and the child lived together as a family unit for over two years, according to the opinion for the court by Judge Ezra Friedlander, until they terminated their relationship in August 2010, when the child was just over two years old.  N.J. allowed A.C. to have frequent visitation with the child for the next nine months, but then cut off visitation.  A.C. has not seen the child since October 2011.

A.C. filed a petition in court in January 2012, seeking custody and visitation.  At the subsequent hearing, she made clear she was seeking joint custody, not sole custody, as she did not contend that N.J. was an unfit mother.  A.C. relief on the parties’ intent at the time the child was conceived that they would both be parents of the child, and her role as a parent until N.J. cut off contact, arguing that it was in the child’s best interest to continue that relationship.

The trial court threw out the case, finding that A.C. was not a legal parent and did not have standing to seek custody or visitation.

The appeal was fought on three issues: whether the trial court corrected refused to enforce an agreement between the women that A.C. would be the child’s “second parent”; whether the trial court erred in denying A.C.’s petition for joint custody; and whether the trial court erred in finding that A.C. did not have standing to seek visitation.

The court provided a detailed review of the history of Indiana cases on same-sex parent claims, pointing out that the appeals court had been reversed by the state’s supreme court in the past when it had ruled to let a co-parent seek custody, and that the legislature had failed to respond to the court of appeals’ call for legislation on the subject to clarify the rights of parties who were forming relationships that were not legally recognized and having children within those relationships.  After referring to that request for guidance, Judge Friedlander lamented the lack of response from the legislature.

“In the years that have passed since then,” wrote Friedlander, “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. . .  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.”

The court decided that in the absence of precedent, as well as the absence of any written agreement concerning custody or visitation, the trial court did not err in failing to enforce the agreement that A.C. alleged the women had made.  Additionally, it found that the trial court did not err in rejecting A.C.’s petition for joint custody, noting the lack of precedent for ordering joint custody between a legal parent and a legally unrelated third-party, and the demanding test that the supreme court had adopted for awarding sole custody to an unrelated third party: “Before placing a child in the custody of a person other than the natural parent, a trial court must be convinced by clear and convincing evidence that the best interests of the child require such a placement.  The trial court must be convinced that placement with a person other than the natural parent represents a substantial and significant advantage to the child.”  The supreme court noted a “presumption” that a natural parent should have custody.  “A generalized finding that a placement other than with the natural parent is in a child’s best interests, however, will not be adequate to support such determination, and detailed and specific findings are required.”

The court of appeals found that the trial judge had relied on this standard, and pointed out that A.C. was not arguing that the trial court’s conclusion that A.C. had failed to rebut the presumption in favor of the N.J. as the “natural parent” was clearly erroneous.

Finally, however, in considering the visitation issue, the court noted that it was actually confronting an issue that might be of first impression at the appellate level in Indiana.  “At the outset,” wrote Judge Friedlander, “we recognize that there are good reasons to limit the class of individuals with standing to seek third party visitation.  After all, parental rights are of constitutional dimension, and it is presumed that a fit parent acts in the child’s best interests in making decisions concerning visitation with third parties.”  But, pointing to prior cases involving third party visitation (but not same-sex co-parents), the court pointed out, “this court has acknowledged that a child’s interest in maintaining relationships with those who have acted in a parental capacity will sometimes trump a natural parent’s right to direct the child’s upbringing.”  The court did not see that prior cases allowing stepparents to seek visitation should be seen as setting the outer boundary for such claims.  “It appears to us that the Court viewed a stepparent relationship as a strong indication that a custodial and parental relationship exists.  But surely custodial and parental relationships may exist with third parties other than stepparents,” the court continued.  “Indeed, the situation presented here is characterized by even stronger indicia of a custodial and parental relationship.  This is so because the parties originally intended for the biological mother’s partner to fulfill the role of the child’s second parent and actively encouraged the development of a parental bond between the partner and the child.”

The court concluded that allowing A.C. to seek visitation would not contravene prior precedent.  “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.”  Thus, the court of appeals reversed the trial court only on the issue of visitation, and sent the case back “to reconsider Partner’s request for visitation under the standard set forth in our third-party visitation cases.”

A.C. is represented by Lesa C. Duvall, Stephanie L. Bloomer, and Kristin D. Caldwell, law firm partners in Indianapolis.  Amy D. Griner represents N.J.

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