New York Law School

Art Leonard Observations

Posts Tagged ‘child custody’

Mass. SJC Rules Affirmatively on Same-Sex Partner Parentage Claim in Partanen v. Gallagher

Posted on: October 5th, 2016 by Art Leonard No Comments

The Massachusetts Supreme Judicial Court (SJC) ruled on October 4 that the former same-sex partner of a woman who gave birth to two children through donor insemination during the women’s relationship can seek to establish full legal parentage of the children under the state’s statute concerning parentage of children born out of wedlock. Partanen v. Gallagher, SJC-12018, 2016 Mass. LEXIS 759, 2016 WL 5721061.

Although the state’s courts have in the past recognized various rights for co-parents in similar cases using a “de facto parent” concept, this unanimous ruling is the SJC’s first to take advantage of a law providing that “words of one gender may be construed to include the other gender and the neuter” to adapt a statute that was originally intended to allow unmarried men to establish their paternity of children born “out of wedlock” to their women companions, and to repurpose the statute as a vehicle to establish parental rights for unmarried same-sex partners.

Justice Barbara Lenk wrote for the unanimous seven-member court.

Karen Partanen and Julie Gallagher began their “committed relationship” as a couple in Massachusetts in 2001. The next year they moved to Florida, where they bought a house together in 2003.  In 2005 they decided to use donor insemination to have children.  The plan was for each of the women in turn to be inseminated.  Partanen’s attempt in 2005 was unsuccessful, but Gallagher’s subsequent attempt was successful and she gave birth to their daughter in 2007.  Gallagher was inseminated again in 2011, giving birth to a son.

These procedures were performed with the full cooperation and involvement of Partanen, who was present at the birth of the children. Partanen did not adopt the children, although in 2010 a Florida appeals court struck down the state’s statutory ban on gay people adopting children, but, according to her complaint in this lawsuit, she was fully involved as a parent, including personal contact, financial support, and decision-making.

After their son was born, the family moved back to Massachusetts. Although by then same-sex marriage was legal in Massachusetts, they did not marry. Shortly after the move, they ended their relationship and Partanen moved out.  She filed an action to establish “de facto” parentage in February 2014, requesting visitation and shared custody.  In September 2015, a Family Court judge ruled that she was a “de facto” parent, ordered visitation, and required her to pay child support to Gallagher.  An appeal of that ruling is pending.  Meanwhile, however, in October 2014 Partanen filed a separate action “to establish [full legal] parentage,” which Gallagher moved to dismiss, arguing that “full parentage” could only be achieved under the paternity statute by a biological parent.  Probate and Family Court Judge Jeffrey A. Abber granted Gallagher’s motion to dismiss the parentage case.

If one reads the relevant statute without taking into account the state’s general statutory directive on gender neutrality in interpretation, one could easily see the basis for Judge Abber’s ruling. The provision falls within the chapter of the state’s laws titled “Children Born Out of Wedlock,” Chapter 209C.  The statute extends to “children who are born to parents who are not married to each other.”  The various sections refer to “paternity” and authorize the courts to determine whether somebody is a child’s legal father. The statute recognizes a “presumption of paternity” in various situations.  The one most relevant here is that “a man is presumed to be the father of a child” that is born out of wedlock if “he, jointly with the mother, received the child into their home and openly held out the child as their child.”

Gallagher argued, and the trial judge agreed, that this statutory scheme was not intended to provide a vehicle for somebody to establish legal parental rights over a child to whom the party was not biologically related. The SJC disagreed, pointing out that the statute does not state anywhere that the person seeking to establish parental rights has to be biologically related to the child.  “While the provisions at issue speak in gendered terms,” wrote Justice Lenk, “they may be read in a gender-neutral manner, to apply where a child is ‘born to [two people],’” not just a man and a woman, and the child “is received into their joint home, and is held out by both as their own child.”  Consequently, she wrote, “The plain language of the provision, then, may be construed to apply to children born to same-sex couples, even though at least one member of the couple may well lack biological ties to the children.”

Furthermore, such an interpretation was in accord with the overall purpose of the statute, which, as “laid out in its first sentence, is to provide all ‘children born to parents who are not married to each other’ . . . the same rights and protection of the law as all other children.”

The court strengthened its interpretation with a telling analogy to the use of reproductive technology by different-sex couples. Clearly, a cohabiting but unmarried man and woman who resort to donor insemination to conceive a child because the man is infertile could make use of this statute to establish the man’s paternity without any express requirement in the statute that he prove a biological relationship to the child.  That is, in fact, one of the normal uses of the statute.  If the legislature intended to make sure that all children born to unmarried parents have the same rights, shouldn’t children born to unmarried same-sex couples have the same rights as well?

“Here, had [the children] been born to a married couple using artificial reproductive technology, they would have had two parents to provide them with financial and emotional support,” wrote Justice Lenk. “We decline to read into the statute a provision that leaves children born to unmarried couples, using the same technology, with only one parent.”

Furthermore, she pointed out that the court had in the past recognized an interpretation of another provision that also would “recognize parentage in the absence of a biological relationship,” a provision under which parentage may be established through a “written voluntary acknowledgment of parentage executed jointly by the putative father and the mother of the child.” The court held years ago that such an acknowledgment does not require that the putative father have any genetic relationship to the child.  Under this ruling, same-sex couples can avail themselves of the same provision.  This only works, of course, if both parents are willing to sign such a document.

Gallagher argued that because Partanen lacks a biological connection to the children, they were not “born to” her, and thus do not fall within the scope of the statute. She bolstered this argument by referring to a provision authorizing the family court to order genetic testing of the putative father on a “proper showing” by the moving party.  That provision was clearly intended to allow single mothers seeking child support from the biological fathers of their children to prove genetic paternity in order to subject the men to their parental support duty.  “Where, as here, the parentage claim is not based on a genetic relationship,” wrote Justice Lentz, “Gallagher, as a moving party, cannot show such testing would be relevant to the claim at issue, and therefore, no ‘proper showing’ is possible.”

Ultimately, the court concluded that the facts alleged by Partanen in her complaint should have been sufficient to withstand Gallagher’s motion to dismiss the claim, and if upon remand the trial court finds the factual allegations to be true, Partanen will enjoy the presumption of parentage authorized by the statute and can seek visitation and custody on the same basis as any other person who is presumed to be a parent. If the Family Court judge finds it to be in the best interest of the children, Partanen would be awarded the same custody and visitation rights that any legal parent could seek after parents have ended their relationship with each other.

Although Massachusetts courts had previously recognized the ability of same-sex partners to seek “de facto” parental status, which accorded some rights, the court emphasized that full legal parentage involves the same rights that a biological or legal adoptive parent would enjoy.

The court did not rule on alternative constitutional claims raised by Partanen, resting its decision entirely on construction of the Massachusetts statutes. The court’s opinion does not mention any attempt by Gallagher to argue that treating Partanen as a presumptive parent would violate Gallagher’s constitutional due process rights as a “natural parent,” so it is unlikely that she would be able to seek U.S. Supreme Court review of this decision.

Mary Bonauto, the Civil Rights Project Director at GLAD: Legal Advocates & Defenders, the Boston-based New England GLBT rights public interest law firm, represents Partanen with co-counsel Elizabeth A. Roberts, Teresa Harkins La Vita, Patience Crozier and Joyce Kauffman. Bonauto gave the oral argument in the U.S. Supreme Court in 2015 that led to nationwide marriage equality in Obergefell v. Hodges, and she also argued to the Massachusetts SJC in 2003, resulting in the nation’s first affirmative marriage equality ruling by a state’s highest court.

Jennifer M. Lamanna represents Gallagher. The SJC received amicus briefs, all in support of Partanen’s appeal, from: C. Thomas Brown for Greater Boston Legal Services; Emily R. Shulman, Brook Hopkins, and Adam M. Cambier for the American Academy of Assisted Reproductive Technology Attorneys; Abigail Taylor, Gail Garinger, Brittany Williams and Andrea C. Kramer for the Massachusetts Attorney General’s Office; and Shannon Minter, Marco J. Quina, and Emma S. Winer for a group of law professors specializing in family law issues.  The case seems to have flown below the radar of groups that usually file opposition amicus briefs in such cases.

Nassau County (N.Y.) Family Court Rejects Lesbian Co-Parent Custody Petition

Posted on: July 24th, 2014 by Art Leonard No Comments

Nassau County (NY) Family Court Judge Edmund M. Dane rejected a lesbian co-parent’s joint custody petition on June 30, finding that despite the 2011 passage of New York’s Marriage Equality Law, the state’s child custody laws fail to acknowledge parental claims of a co-parent who was not married to the child’s birth mother when the child was born.  Jann P. v. Jamie P., NYLJ 1202664272007 (published July 23, 2014).

According to Judge Dane’s opinion, the child, named John, was born to Jamie P. in 2011.  Jamie P. and Jann P. were married on January 20, 2012.  The opinion does not specify whether the women were living together when the child was born, or whether the child was conceived through donor insemination by their agreement.  The women’s relationship evidently soured, and they executed a written separation agreement dated August 7, 2013.  The separation agreement described John as “a child of the marriage” and it provided that John would be raised only by Jann and Jamie, referring to both parties as “wife” and apparently providing that Jamie would have residential custody.  Under the agreement, Jann would have visitation rights at her home every Saturday and on alternate Sundays, with holidays being spent together but ultimately split between the parties upon finalization of a divorce.  The separation agreement also provides that “joint custody will be determined at a later date upon further and in depth discussions.”  No divorce petition has been filed, however.

Jann P. filed suit in Family Court on December 9, 2013, seeking joint custody of John.  The petition identifies Jann P. as John’s parent, and identifies Jamie P. as John’s mother.  The petition alleges that joint custody would be in the best interest of John, citing the “mental well being of the child.”  Jamie filed a motion to dismiss the petition, arguing that Jann is not John’s legal parent and, in the absence of extraordinary circumstances that would support terminating Jamie P.’s custody, Jann would not have standing under New York law to seek custody of John.  The attorney appointed to represent John’s interest also opposed the custody petition.

Opposing Jamie’s motion, Jann argued that the court should use equitable estoppel to block Jamie’s argument, pointing to the separation agreement under which both women were identified as parents and the reality that Jann acted as a parent to John while the women were living together and married.  Equitable estoppel is a legal doctrine that courts sometimes use to block a party from making a legal argument that would be inconsistent with their past actions.  In this case, Jann argued that Jamie had conceded Jann’s parental status by signing the separation agreement and should not be allowed to take a contrary position in court.

“This case presents a timely and important issue,” wrote Judge Dane, “the likes of which the courts and legislature of this State will likely be addressing for some time to come, namely, are there circumstances under which a spouse in a same-gender marriage has standing to seek custody of a child who is not biologically related to the petitioning spouse, but was considered by both spouses to be a child of the marriage?”  Dane observed that passage of the Marriage Equality Act in 2011 “took a significant step in redefining long-standing concepts of what constitutes a family under the laws of this State,” but that “it is apparent that this process of evolution is incomplete.”

Specifically, Dane referred to a New York Court of Appeals decision from 2010, Debra H. v. Janice R., 14 N.Y.3d 576, in which the court rejected the use of equitable estoppel by a same-sex co-parent of a child’s birth mother seeking to establish parental rights.  In that case, the women had been in a Vermont civil union when the child was born, and the court concluded that it could find standing based on the Vermont Civil Union Act, which established the presumption that a child born to a married woman was the legal child of the women’s spouse.  Also in that case, the Court of Appeals reaffirmed its terrible old decision of Alison D. v. Virginia M., 77 N.Y.2d 651 (1991), which has continued to haunt LGBT family law in New York State with its refusal to readjust the interpretation of antiquated family law statutes in light of modern family realities.  Relying on these cases, both of which pre-date the Marriage Equality Law, Dane found that Jann’s equitable estoppel argument had to be rejected, and he observed that a traditional legal presumption concerning a child born to a married woman being the legal child of her spouse was a presumption of fact concerning biological parenthood that could not logically be entertained in the case of a same-sex couple.  Such a presumption would not apply in this case anyway, since John was born before the women were married.

Alternatively, Jann pointed to New York cases allowing a man who married a woman who already had children to seek to establish parental rights based on the relationship he developed with the children, but Judge Dane observed that New York law does not provide a procedure for establishing maternity, just paternity, and that the principal case cited by Jann, Jean Maby H. v. Joseph H., 246 App. Div. 2d 282 (2nd Dep’t 1998), was of questionable authority after the Court of Appeals ruling in Debra H.

The problem as Judge Dane identified it was that New York’s existing legal framework provides for paternity actions but not maternity actions.  “Accordingly,” he wrote, “it stands to reason that if the petitioner were a man who held himself out as John’s father for a period of time sufficient to establish a paternal bond with John, he would have standing to file a petition seeking a declaration of paternity under article 5 of the Family Court Act and then, if successful in the paternity proceeding, would have standing to seek custody or visitation with the child.  Unlike a man in the same position, the petitioner cannot employ a paternity proceeding as a means of establishing standing to seek custody of John because she cannot allege that she is John’s father and the law does not provide for a proceeding to declare maternity.”

Dane also dismissed as irrelevant a New York statute concerning donor insemination within marriage, under which the husband can be deemed the legitimate parent of a child conceived through donor insemination of his wife with his consent.  Dane pointed out that there was no information in the court record about whether John was conceived through donor insemination, and furthermore “he was conceived and born prior to the marriage.”

Dane suggested that the legislature should address this issue, perhaps by amending the Family Court Act to provide same-sex co-parents with the same legal remedies that a man in the same situation would have.  “The inequity of the imbalance of remedies available to the petitioner is highlighted in this case,” wrote Dane, “by the parties’ separation agreement, which clearly indicates that the parties viewed the petitioner as John’s parent, contemplated the possibility of the parties sharing custody of John, and gave the petitioner specific visitation rights. Until such time as the legislature addresses the issue, however, the court agrees with the attorney for the child’s position that the petitioner may not use equitable estoppel as a ground to establishing standing to seek custody.”

Judge Dane pointed out that separation agreements “are not enforceable in Family Court,” but that “they may be enforceable in a matrimonial action,” so it’s possible that Jann would get somewhere in her quest for custody by filing a divorce petition.  He mentioned that Jann argued that denying her standing in this case violated her constitutional right to equal protection, but then never addressed that argument anywhere in his opinion.  Certainly the one-sided statutory framework suggests that stereotypes about women and men concerning parental roles were at play when the legislature set up the statutory scheme, which should heightened scrutiny in the context of an equal protection challenge, but Dane evidently considered Jann’s lack of standing to preclude any constitutional argument.

In its article reporting on the case on July 24, the New York Law Journal quoted Jann’s attorney, William Scheeckutz, Jr., as saying that the women were a couple when John was born, that no divorce proceedings are pending, and that since the court ruled, John had been removed from Jamie and put into foster care because of a neglect petition.  Sheeckutz said that he had filed a notice of appeal from Judge Dane’s ruling, and that Jann was also considering attempting to intervene in the neglect proceeding.

Jamie is represented by the Legal Aid Society of Nassau County, and attorney Dennis Monahan was appointed by the court to represent John.



Jamie is represented by the Legal Aid Society of Nassau County, and attorney Dennis Monahan was appointed by the court to represent John.

Arkansas Supreme Court Reverses Visitation Restriction on Gay Dad

Posted on: November 22nd, 2013 by Art Leonard No Comments

A sharply divided Arkansas Supreme Court voted 4-3 to reverse the circuit court’s requirement that a gay dad’s same-sex partner not be present when he has overnight visitation with his youngest son.  Finding that, contrary to the view of the circuit judge, Arkansas does not have a “blanket rule” requiring such a restriction, the Supreme Court sent the case back to the circuit court for a determination whether allowing the partner to be present would be in the best interest of the boy.  Moix v. Seventeenth Division Libby Moix, 2013 Ark. 478, 2013 Ark. LEXIS 569, 2013 WL 6118520 (Nov. 21, 2013).  The ACLU represents John Moix in his appeal of the circuit court’s ruling.

John and Libby Moix were divorced in 2004.  As part of their settlement agreement, they shared joint custody of their three sons, who were to live with their mother and have liberal visitation with their father, a pharmacist.  The agreement, incorporated in the divorce decree, contained the usual language that neither party was to have overnight guests of the opposite sex during overnight visitation of the children.  But soon after the divorce, John acquired a same-sex partner, Chad Cornelius, a nurse, who began to live with him.  This led Libby to seek a modification of the court order, as she claimed that it was harmful for the children to be exposed to their father’s “illicit relationship” with Chad.  New negotiations ensued, resulting in a continuation of the custody arrangement for the two older boys (who are twins), but giving Libby full custody of the younger boy, R.M., then age 5, and providing that there be no overnight visitation with R.M.

However, it seems that this restriction was not followed by the parties, as R.M. continued to have overnight visits with his father (and Chad), during which John says he and Chad used separate bedrooms and never displayed physical affection in R.M.’s presence.  However, late in 2009 or early in 2010 John became addicted to prescription drugs, had a hit-and-run accident, and ended up getting inpatient treatment while working through issues concerning his pharmacist’s license.  He joined Alcoholics Anonymous and Narcotics Anonymous and went on a recovery program that required frequent drug-testing.  However, in 2010 Libby remarried and informed John that because R.M. now had a new father, he no longer needed John, and she sharply cut back on visitation.  This prompted John, who claimed to have recovered from his addiction, having remained totally sober and passed every drug test, to seek a new order from the court modifying the visitation provisions so that he could have more frequent and overnight visitation.

Under Arkansas law, a court will not reopen a custody/visitation order unless there has been a material change of circumstances since the prior order was made.  In this case, John pointed to Libby’s remarriage and sharp restriction in his visitation, as well as his successful treatment and new abstemious lifestyle, as justifying the court modifying the order.

After hearing testimony from the parties and several other witnesses, the circuit judge concluded that John should get increased visitation with his son.  John presented several witnesses who testified about his character, Chad’s character, and the relationship of the two men and their children.  (Chad is also a divorced father.)  Chad’s ex-wife also testified in support of the application to remove the restriction, praising him as a wonderful father.  Chad’s 16-year-old son has formed a close friendly relationship with R.M., which is adversely affected by the restriction as well.  After concluding that there had been a material change in circumstances, the circuit court concluded that it was in R.M.’s best interest to have more time with John, including one overnight a week.  However, the circuit judge said that the court was required by the public policy of Arkansas to impose a “non-cohabitation restriction” that would prevent Chad from being present during any overnight visits.

According to the Supreme Court opinion by Justice Cliff Hoofman, “The court noted that appellant and Chad were in a long-term committed relationship, that they had resided together since at least 2007, and that Chad posed ‘no threat to the health, safety, or welfare’ of R.M.  Other than the prohibition on unmarried cohabitation with a romantic partner in the presence of a minor child, the circuit court found no other factors present to militate against overnight visitation in this case.”  The circuit court had also rejected John’s argument that the non-cohabitation requirement violated the federal and state constitutions.

John appealed this order to the Supreme Court, arguing that the restriction violated his constitutional rights, and alternatively that the circuit court had misconstrued Arkansas law.  Justice Hoofman, observing that the court avoids constitutional rulings if it can resolve a case on other grounds, wrote that the majority of the Supreme Court agreed with John that the circuit court had misconstrued Arkansas law.

Hoofman reviewed several prior Arkansas decisions showing that the courts had departed from a strict observance of a no-cohabitation rule.  He referred to a 1999 decision, Campbell v. Campbell, in which “this court made it clear that the purpose of the non-cohabitation provisions are to promote a stable environment for the children and not merely to monitor a parent’s sexual conduct.  We have also repeatedly held, however, that the primary consideration in domestic relations cases is the welfare and best interest of the children and that all other considerations are secondary.  Therefore, we have emphasize in more recent cases that the policy against romantic cohabitation in the presence of children must be considered under the circumstances of each particular case and in light of the best interest of the children.”  Thus, the court agreed with John that “the public policy against romantic cohabitation is not a ‘blanket ban,’ as it may not override the primary consideration for the circuit court in such cases, which is determining what is in the best interest of the children involved.”

In this case, the circuit court’s factual findings suggested that the only barrier to allowing Chad to be present during visitation was the court’s perception that a public policy rule required it.  Thus, wrote Hoofman, the circuit court never made a finding on whether it was in R.M.’s best interest to impose the non-cohabitation requirement in this case, so the matter would have to be returned to the circuit court for such a finding.  The court also rejected Libby’s argument that there had not been a material change in circumstances that would justify the court modifying its prior order, under which there was to be no overnight visitation.

The three dissenting judges all agreed that John had failed to show the necessary material change in circumstances to justify reopening the visitation order.  They also disagreed with the majority’s conclusion that the circuit judge had failed to make a “best interest” determination.  Justice Karen R. Baker quoted from the circuit judge’s opinion: “The circuit court stated, in speaking about the noncohabitation provision, ‘The best interest dictates that that be the continued policy of this court, in my opinion.  So that will be the order of the court.’  It is clear to me,” continued Baker, “that the circuit court did determine that the noncohabitation provision was in the best interest of the child.”  In a separate dissent, Justice Courtney Hudson Goodson argued that the non-cohabitation ruled was well-established, and had not been abandoned in prior cases, and agreed with the other dissenting opinion that the circuit judge had adequately addressed the best interest issue in concluding that the restriction should apply in this case.

Moix’s lawyers on this appeal include Holly Dickson of the Arkansas Civil Liberties Union and Leslie Cooper and James Esseks from the nationl ACLU LGBT Rights Project.

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.