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Indiana Court of Appeals Divides Three Ways on Gender Marker Change for Transgender Teen

Posted on: September 8th, 2021 by Art Leonard No Comments

In Matter of A.B., 164 N.E.3d 167 (Ind. Ct. App. 2021), decided earlier this year, a divided panel of the Indiana Court of Appeals ruled that a parent’s petition to change the name and gender marker of their transgender minor child could be approved, despite the lack of explicit statutory authority, if the court determined that the change was in the best interest of the child, with Judge Rudolph R. Pyle, III, dissenting on the ground of lack of legislative authority for the court’s action.  On August 30, in In re Change of Name and Gender of H.S., 2021 Ind. App. LEXIS 267, 2021 WL 385266 (Ind. Ct. App.), the same court again split three ways in a case where parents petitioned to change the name and gender marker of a minor, in this case their 15-year-old transgender son.  Affirming a ruling by Allen Superior Court Judge Andrew S. Williams, they held that Judge Williams’s grant of the name change but denial of the gender marker change was not clearly erroneous.  Observing that the legislature had not responded to their earlier ruling by addressing the question of the standard for evaluating such a petition, Judge L. Mark Bailey’s majority opinion found that Judge Williams did not err because the parents did not present sufficient testimony to show that granting the gender marker change in the teen’s birth certificate would be in the best interest of the minor, H.S.

The parents offered in evidence a letter from H.S.’s treating physician stating that H.S.’s sex “has been changed by medical procedure from female to male” and that H.S.’s birth certificate should be changed accordingly.  They also offered a letter from a licensed mental health counselor who stated that H.S. “was initially seen at my office in January of 2020, for issues related to gender identity, and that he “was determined to be exhibiting symptoms consistent with a diagnosis of Gender Dysphoria,” had “presented male at all of his [counseling] sessions,” and “began testosterone therapy in August of 2020” and “shared about his desire to change his name and gender marker,” which the counselor believed to be “important to his overall wellbeing.”  The petition was filed on September 16, 2020, by the Mother under oath, accompanied by a signed parental consent by both Mother and Father.  Judge Williams accepted the letters into evidence, and conducted a hearing on March 4, 2021, at which both parents and H.S. testified.  Judge Williams then ordered that the case be sealed from public access.

On April 16, 2021, Williams issued an Order granting the name change and denying the gender marker change.  He purported to apply the “best interest of the child” analysis as dictated by the Court of Appeals’ decision in Matter of A.B., and focused on “the mental and physical health of the child” as “likely the most significant factor.”  As such, he pointed to “the absence of expert testimony or authenticated documents,” wrote Judge Bailey, quoting Williams’s finding “the lack of competent evidence with regard to this factor to be dispositive.”  Williams found that Mother, the petitioner, failed to establish that it was in the best interest of H.S. to have the gender marker changed.  This seems odd on its face.  H.S. would legally be known by a male name but would have a birth certificate indicating a female sex.

On appeal, Mother argued that the court should presume that when parents petition for a gender marker change for their child, it is in the best interest of the child to grant it, not dependent upon a specific medical intervention.  Judge Bailey disagreed, while noting that no Indiana statute makes expert testimony or medical records a requirement for a gender marker change.  After reviewing the history of the Indiana courts’ treatment of the issue of name and gender marker changes for transgender petitioners, he pointed out that the permissive standard followed for adults does not apply to minors.  “It is necessary to examine the statutory provision for alteration to a birth certificate with the objective of neither invading the legislative domain nor that of a fit parent,” he wrote.  “The generic statutory provision has served as a vehicle with enough flexibility to permit its ready application to the gender marker choice of a competent adult.  Nevertheless, the statutory flexibility applicable to adults has reached a point of inelasticity where the issue concerns children.  And assuming the statute has application when a parent seeks a change of gender marker for a child, its streamlined (essentially unquestioned) application to a child would ignore the State’s interest in the child’s wellbeing.”

“Clearly, the totality of the child’s medical history is highly relevant,” wrote Bailey.  “But here the parents decided to forego expert testimony or the proffer of any relevant medical records, in favor of their conclusory testimony prompted by their teenager’s relatively recent disclosure.  Indeed, the trial court aptly pointed out that there was no authenticated document of any sort admitted into evidence.  Under these circumstances, I cannot say that the trial court misapplied the law.”

Under the logic of Bailey’s decision, despite the lack of any such statutory requirement, parents petitioning for a gender marker change for their child should be prepared to have testimony under oath from the child’s physician and mental health counselors, and to submit medical records in evidence.  This decision does not make a gender marker change unavailable, but it probably makes it considerably more expensive to obtain such an Order.  The parents in this case could go back to square one with a new petition; otherwise, H.S. will have to wait until his majority to file a petition on his own as an adulty, under the more “elastic” standards pertaining.  Unless, of course, this case is appealed and the Indiana Supreme Court adopts the dissenter’s view of the record while approving Matter of A.B.

Judge Pyle concurred in the result, reiterating his dissenting view from Matter of A.B. that the court did not have authority to order a gender marker change for a minor in the absence of legislative authorization to do so.  The biggest risk of an appeal by the Petitioners in this case is that the Indiana Supreme Court might agree with Judge Pyle and overrule Matter of A.B., putting gender marker changes out of reach for minors in Indiana in the absence of legislative action (which one speculates would not be readily forthcoming).  As of the end of August, we found no record of an appeal filed in Matter of A.B., which was decided in February 2021.

Judge Terry A. Crone dissented at length, finding that the evidence introduced by the parents was sufficient to perform the analysis required by Matter of A.B. and to conclude that granting the gender marker change was in the best interest of H.S.  He rejected Judge Bailey’s dismissive characterization of the letters accepted into evidence by H.S.’s physician and counselor, and found that Judge Williams, in passages not acknowledged by Judge Bailey, had indulged in stereotyping and generalizations with no factual support in the record.

“In its order,” wrote Judge Crone, “the trial court was dismissive of fifteen-year-old H.S.’s age, stating that ‘any parent who has raised a teenager is well-aware that their thoughts, opinions, and wishes change rapidly.  Teenagers are full of hormones and emotions which often results in impulsive, short-sighted decisions.  At this age, teenagers are also easily influenced by peer pressure, trends, and pop culture.’  These are not specific findings based on the evidence actually presented to the court,” insisted Judge Crone.  “These are blatant and biased overgeneralizations.  There is no indication that H.S.’s decision to change his gender via a medical procedure was impulsive or the result of peer pressure or pop culture influences.  According to Mother, it took H.S. ‘a year’ before he felt ‘ready’ to tell her and Father about his desire to transition.  H.S. has received counseling for gender identity issues, and both Mother and Father are supportive of his course of action, testifying that he seems ‘happier’ now.”

Judge Williams held this parental support against H.S., finding that it had more to do with the parents wanting to support their child’s decisions than with the child’s best interests.  To the contrary, wrote Judge Crone, “It should go without saying that H.S.’s parents, who have known him since his birth, are infinitely more capable than the trial judge of judging what ‘happiness’ means to their child and what is in his long-term best interests with respect to his gender identity.”  He quoted at length from the parents’ trial testimony to show that their support for H.S.’s transition was well-considered.  Their testimony about how making these changes would be practically useful for their son as he lived in his gender identity was considered “troubling” by Williams, who criticized the parents, writing of their testimony, “It seemed more in line with parents wanting to support their child’s decisions rather than parents objectively considering the best interests of their child.”  Ultimately, Williams was unpersuaded by the parents’ testimony that the transition had resulted in a remarkable affirmative change in their child, from a quiet introverted person to a happy more “interactive” person.  As far as Judge Williams was concerned, apparently there was no real change because H.S.’s school grades remained consistent from before to after the transition.  He described H.S. as a “well-adjusted” youth prior to his transition – based on what evidence is hard to discern.

Finally, on the point about proof of best interest in terms of mental and physical health, Judge Crone wrote that Williams’ statement that “no admissible evidence” was presented by the parents “obviously is not the case because the court actually admitted testimony of H.S. and his parents, as well as the letters from H.S.’s physician and mental health counselor.  Judge Bailey deems the parents’ testimony ‘conclusory,’ but I respectfully disagree.  We must review the trial court’s ruling based on the record before us, and I believe that the record is more than sufficient to support the granting of Mother’s petition to change the gender marker on H.S.’s birth certificate.”  He considered Judge Williams’ failure to grant the petition to be “a blatant abuse of the trial court’s discretion.”

Petitioners are represented by Kathleen Bensberg, Megan Stuart, and Kylee Tomblin, of Indiana Legal Services, Indianapolis.

Indiana Appeals Court Allows Anonymous Document Changes for Transgender Men

Posted on: August 15th, 2017 by Art Leonard No Comments

Finding that enforcing a statutory publication requirement for a transgender name change would result in a dangerous “outing” of the applicants, a three-judge panel of the Indiana Court of Appeals unanimously reversed two rulings by the Tippecanoe Circuit Court on August 10 in In re Name Changes of A.L. and L.S., 2017 Ind. App. LEXIS 340, 2017 WL 3429074, holding that the publication requirement should be waived such cases.  The court also ruled that the circuit judge erred in requiring publication of an intent to seek a change of gender marker on a birth certificate, which is not specifically required by statute.


An Indiana statute provides that anybody who applies for a name change must publish their intention to do so in a newspaper of general circulation, indicating their existing name and proposed new name.  An administrative regulation provides that a court can exercise discretion to waive the requirement if publication would present a risk to the health or safety of the applicant, and to seal the court record to protect the privacy of the individuals involved.  The August 10 ruling involves two applicants, identified by the court as A.L. and L.S., both transgender men seeking alteration of their official records.


On May 11, 2016, A.L. filed a petition for a name change, having previously published his intent to do so in a newspaper, and the trial court granted his petition.  He had been living as a man for two years at that point, and had undergone “medical procedures in line with his transition,” according to the Court of Appeals opinion by Judge John Baker.  At the hearing on his name change, A.L. asked to have his gender marker changed on his birth certificate.  The judge instructed him to publish his intent to change his gender marker in a newspaper and scheduled a new hearing on this request.  A.L., who had been representing himself up to that point, then obtained a lawyer who filed a “motion to correct error,” arguing that Indiana law did not require such a publication for a gender marker change.


At the subsequent hearing, A.L. testified about his reasons for seeking the change and presented evidence of his medical transition, but the court denied his motion because he had not published his intention in a newspaper.  The court subsequently ordered A.L. to provide proof of publication before it would issue the requested order.


The judge said that although he found the application to be made in good faith, without any fraudulent intent, and that A.L. had presented evidence that “transgender individuals are disproportionately subject to violence based on their status as transgender individuals,” where A.L. feel short, in the judge’s view, was in failing to show that he “is personally at increased risk for violence (other than as a general member of the transgender community) or that this Petition would lead to an increased risk of violence for the Petitioner.”


The trial judge rejected the idea that there should be “a general rule that would require no notice for an individual seeking to change their legal gender and have their birth certificate amended,” speculating that this could increase the potential for fraud “in that individuals might be able to seek multiple gender changes in attempts to avoid identification by creditors, governmental actors, or other aggrieved parties without those parties having an opportunity to object or even be aware of said changes.” Thus, the judge concluded, it was in the public interest to require publication both of gender identification changes as well as name changes, even though the statute only specifically addressed name changes.


While the trial judge expressed reluctance “to force well-meaning and potentially vulnerable individuals to address intimate and personal issues central to their personal identity in the harsh public light of open court,” he said this was common to anybody who sought “court intervention in the most personal areas of their lives” and noted the judicial preference for court proceedings that are “open” and “transparent” is “well established in American jurisprudence.”


L.S. filed his petition for change of name and gender on September 7, 2016, in the same circuit court, and encountered the same response. L.S. had not arranged for any publication of his intentions, and the trial judge ruled that he could not grant the petition unless L.S. presented proof of publication.  According to Judge Baker’s opinion, the trial judge basically repeated the same statements he had made in response to A.L.’s petition.


The two cases were consolidated for appeal, and the Court of Appeals totally rejected the trial judge’s reasoning.


First, the court pointed out that authority to change gender markers on birth certificates stemmed from its own prior ruling in 2014, not from the statute governing name changes. Instead, it had relied on a different statute that authorized the state’s health department to “make additions to or corrections in a certificate of birth on receipt of adequate documentary evidence.”  In its 2014 ruling, the court had pointed out that “the vast majority of states” had allowed for corrections to be made to birth certificates, including, by that date, for changes of gender, as part of the “inherent equity power of a court of general jurisdiction.”


As the legislature had not reacted to the 2014 decision by enacting any new requirements, and there was no specific statutory requirement for advance publication in a newspaper of an intention to request a correction to a birth certificate regarding gender, “it was erroneous to create a requirement where none exists.” As far as the Court of Appeals was concerned, when a petitioner establishes that their request is made in good faith and without fraudulent or unlawful purpose, which the trial court had found to be true as to L.S. and A.L., “no further requirements need to be met and the petition should be granted.”


As to the name changes, the court said, the issue was whether the trial court should have waived the statutory publication requirement. “The rule seeks to balance, among other things, the risk of injury to individuals with the promotion of accessibility to court records as well as governmental transparency,” wrote Judge Baker.  The judge quoted the published Commentary in the Indiana statute book, which “notes that the rule ‘attempts to balance competing interests and recognizes that unrestricted access to certain information in Court Records could result in an unwarranted invasion of personal privacy or unduly increase the risk of injury to individuals and businesses.”  The same considerations govern requests to seal a Court Record.  The petitioner must show that leaving the record open to public inspection “will create a significant risk of substantial harm to the requestor” in order to get a judicial waiver.


Judge Baker then summarized the evidence L.S. had presented about violence against transgender people, including the significant percentage who had responded to surveys showing workplace harassment, harassment at school, and physical assaults. L.S. had also testified about a transgender friend who had been brutally assaulted on the street, and about the discrimination he had encountered in seeking a work internship, because the way he was identified on his Social Security card did not “match” how he appeared.  L.S. “testified that he believes that if information about his transgender status became public, he would be ‘at great risk of potential harm.’”


The trial judge had considered this evidence credible, but nonetheless denied waiver of the publication requirement or sealing of the record because he found that L.S. had not specifically shown that there was an individualized risk to himself, as opposed to the generalized risk to the transgender community as a whole. The Court of Appeals disagreed with this conclusion.


Baker wrote, “L.S. provided evidence that, as an out member of the transgender community, he would face a significantly higher risk of violence, harassment, and homicide. He has personally witnessed a transgender friend being violently assaulted because of her gender identity.  He has personally experienced discrimination in the workplace after a discrepancy between the way he looked and the way he was identified by Social Security outed him as a transgender individual.  Publication of his birth name and new name would enable members of the general public to seek him out, placing him at a significant risk of harm.  And in today’s day an age, information that is published in a newspaper is likely to be published on the Internet, where it will remain in perpetuity, leaving L.S.  at risk for the rest of his life.  There was no evidence in opposition to L.S.’s evidence.”


The Court of Appeals found that this evidence was sufficient to establish that “public of notice of his petition for a name change would create a significant risk of substantial harm to him. As a result, the trial court should have granted his requests to seal the record and waive publication” under the administrative rule.


The court sent the case back to the Tippecanoe Circuit Court “with instructions to ensure that the record of this case remains sealed, and for consideration of L.S.’s petition for a name change.” The court also ordered that as to the petitions for gender marker changes on birth certificates for both petitioners, the trial court should “grant both petitions and issue orders” to the health department to “amend both certificates to reflect their male gender.”





Indiana Appeals Court Says Spouse’s Gender Change Doesn’t Void an Existing Marriage

Posted on: December 21st, 2013 by Art Leonard No Comments

The Court of Appeals of Indiana ruled on December 20 that an existing different-sex  marriage is not rendered void when one of the spouses has obtained a legal judgment of gender change.  Reversing a ruling by Judge Valeri Haughton of the Monroe Circuit Court, Judge Paul Mathias wrote for the court in Davis v. Summers that this construction of the state’s ban on same-sex marriage would be “beyond the purview of our constitutional authority to interpret statutes” and “would also result in an untenable situation regarding the parties’ child.”

David Paul Summers was married to Angela in October 1999, and their child was born in July 2005.  By that time, David Summers had already been diagnosed with gender dysphoria, and had filed a petition in the Marion Circuit Court for a name change to Melanie Lauren Artemisia Davis.  The court granted the name change petition in May 2005, before the child was born, but did not at that time grant a request to change the gender indication on David Summers’ birth certificate.  However, the Marion Circuit Court issued an amended order on October 21, 2008, directing that the gender designation on Davis’s birth certificate “be amended from Male to Female in order to conform to her identity, legal name and appearance.”  Melanie Davis, as she now was named, and Angela Summers split up shortly after this amended ruling was issued, and Davis later filed a petition to dissolve their marriage in Monroe Circuit Court on October 25, 2012, which was not opposed by Summers.  The parties negotiated a proposed dissolution order, which was provisionally approved by the trial court on January 23, 2013, under which Davis was granted custody of the child and Summers was ordered to pay child support.

However, for reasons not explained in Judge Mathias’s opinion, Judge Haughton, acting on her own motion, issued a new order on March 8, 2013, citing Indiana’s statutory ban on same-sex marriage, and stating: “When the order amending the Petitioner’s gender was issued on October 21, 2008, Petitioner’s gender designation was legally changed to female.  Pursuant to [the provision banning same-sex marriage], Melanie Lauren Artemisia Davis (formally [sic] David Paul Summers) a female was prohibited from being married to Angela Summers, also a female.  The marriage became void on October 21, 2008.”  Judge Haughton went on to hold that because the marriage was “void” as of October 21, 2008, the court “lacks the jurisdiction to dissolve a marriage because no marriage exists,” and she denied Davis’s petition for dissolution, thus vacating the January 23 action that had approved the dissolution and the custody and child support agreements.  This left Davis and Summers without any legally binding order determining parental rights and obligations towards their child.

Davis appealed, without any opposition from Summers.  In reversing Judge Haughton, the court of appeals ruled that Judge Haughton had misconstrued the effect of Indiana’s same-sex marriage ban on existing marriages.  The provision on which Judge Haughton relied states that “a marriage between persons of the same gender is void in Indiana even if the marriage is lawful in the place where it was solemnized.”  The court agreed with Davis’s argument that this provision was intended to prevent the recognition in Indiana of same-sex marriages that were performed in other states, but “does not automatically void a marriage that was initially valid in Indiana simply because one of the parties to the marriage has changed his or her gender.”  Judge Haughton had not relied on the other provision of the statute , which says: “Only a female may marry a male.  Only a male may marry a female.”

Judge Mathias found that there was support for Davis’s argument in another provision of the Indiana statutes, titled “Void Marriages,” which states that a marriage is void if an Indiana couple goes out of state in order to evade Indiana’s ban on various kinds of marriages, if they intended to return to Indiana after getting married.  “Simply said,” wrote Mathias, “there is nothing in the Indiana Code chapter dealing with void marriages that declares that a marriage that was valid when it was entered into becomes void when one of the parties to that marriage has since changed his or her gender.  And the section that deals with marriages between Indiana residents solemnized in other states to avoid the application of certain Indiana marital regulations does not mention same-sex marriages.  Nor does it need to do so, as these marriages are already void under Indiana Code section 31-11-1-1(b) even if they were solemnized in another state.”

Thus, the trial court’s reading “has the effect of adding the type of marriage at issue, a marriage between a male and female solemnized pursuant to Indiana law,” to the list of marriages that are “void ab initio” under the “Void Marriages” provision.  Judge Mathias opined that making such an addition to the list was beyond the authority of the trial court, and would have the undesirable effect of creating an “untenable situation” for the child of Davis and Summers.  “To conclude that the parties’ marriage somehow became void when the gender was changed on Davis’s birth certificate would permit Davis to effectively abandon her own child, even though the parties were validly married at the time of the child’s birth and even though Davis is the child’s father.  It would also leave the parties’ child without the protection afforded by Indiana’s dissolution statutes with regard to parenting time and child support.  We do not think that our General Assembly intended such a result.”

The court concluded that the statutory same-sex marriage ban did not apply to this case, since the parties did not “enter into” a same-sex marriage in Indiana, and they were not in a “same-sex marriage that was solemnized in another state.”  The court reversed the trial court’s ruling and sent the case back “for further proceedings consistent with this opinion.”  Presumably this means to reinstate Judge Haughton’s original order approving the parties’ dissolution agreement.

The court’s ruling suggests by implication that there is one kind of same-sex marriage that can exist and be legally recognized in Indiana: a marriage between a transgender woman and a person identified as a woman at birth that was solemnized before the transgender woman obtained a legally recognized change of gender designation (and similarly in the case of a transgender man who was married to a woman prior to his legally recognized change of gender designation).

One wonders whether this decision will inspire an urge by the Indiana legislature to amend the statute.  The legislature is scheduled to take up the question early in 2014 of putting a measure on the ballot to adopt a constitutional ban on same-sex marriages.  Depending how the appeals turn out in pending federal same-sex marriage cases in other states, such an amendment might be rendered unenforceable by a Supreme Court decision finding, consistent with the reasoning of U.S. v. Windsor, that same-sex couples enjoy a right to marry under the 14th Amendment.

The appeal in this case was not opposed by Angela Summers.  Melanie Davis was represented by Professor Stephen Sanders of Indiana University Maurer School of Law (Bloomington), and Earl R.C. Singleton of the Community Legal Clinic, also in Bloomington.

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.