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Does a non-biological and non-adoptive partner in a same sex relationship have any rights to the child

Does a non-biological and non-adoptive partner in a same sex relationship have any rights to the child?

Society, and what comprises a family, has changed since the Leave it to Beaver days. Many more families are comprised by any mixture of parents, step parents, same sex couples, extended family members (aunts/uncles/grandparents), and even non married opposite sex couples cohabitating. The change in societal norms, and the construction of a family unit, has inherently caused the legislature and the courts to adopt new rules and laws to enforce rights and duties of a parent to a child, or someone acting as a parent to a child.

In the past, the only legal rights and duties between a parent and a child was either through blood (biological / natural parent/child) or adoption. The laws have since been expanded to consider step-parents who form a bond with a child, grandparent visitation, and third parties who raise a child. The idea of same-sex marriage has been in the news the last few years, and is a hot political topic. Inherently this is because more same sex couples are seeking to have rights only now provided (under the law) to opposite sex married couples. However, it was not too long ago that unmarried opposite sex couples who cohabitated were not provided with equal rights and duties to their children as were their married counterparts. While the wheels of justice may be slow in catching up to the fast changes in our society, a recent case has made great strides in recognizing those changes, and adapting our laws.

In A.C. v. N.J., the same-sex couple had decided to conceive a child through artificial insemination, with a sperm donor, and raise the child together, as parents1. Unfortunately, after approximately 2 years, the couple broke up. The biological Mother afforded her former partner substantial visitation with the child, up to 3 overnight visits per week (which is more than the Indiana Parenting Time Guidelines would proscribe for a noncustodial parent). However, after approximately 9 months of visitation, the Mother cut all ties with her former partner, and stopped allowing the child to visit.

When Mother stopped all visits with the Child with her former partner, Partner filed a motion for joint custody of the child, on the basis that Mother, Partner, and Child, formed a family unit, and Mother and Partner had always intended to raise the Child together (prior to conception). The trial court denied Partner’s requests for custody and/or visitation.

On appeal the Partner first argued that the trial court erred in failing to enforce Mother and Partner’s agreement to raise the child as co-parents, and therefore afford Partner with joint custody. The Court of Appeals held that the trial court did not err, and that there is no baseline statute or caselaw that would substantiate this argument. However, the Court of Appeals stated “we, would welcome a legislative roadmap to help navigate the novel legal landscape in which we have arrived.” Essentially, this is a plea to the legislature in Indiana that society has surpassed the laws of this State, and the legislature should address the changed circumstances of many Indiana citizens and provide the judiciary with some path by which to provide persons in these situations with some relief under the law.

On appeal the Partner next argued that even absent the “agreement” between Mother and Partner, Partner should have been awarded joint custody as a nonparent seeking custody under Indiana Code § 31-17-2-32. However, when a third party seeks custody of a Child, the Court of Appeals recognized that 1) the trial courts and higher courts in Indiana have not recognized that a third party seeking custody contemplates a shared custody (i.e. it is one or the other, not both), and 2) that whether the case arises from a de facto custodian, a step-parent, a termination of guardianship, or in this case a same sex partner, the third party must overcome the strong presumption that placement with a natural parent is in the best interests of the child. Therefore, Partner could not assert an argument for shared custody under this body of law, as it simply does not contemplate shared custody.

Finally, on appeal, Partner argues that she should receive visitation with the Child under the caselaw regarding third-party visitation that has been mostly applied in step-parent cases. The Court of Appeals agreed that Partner has standing to request this relief. The Court of Appeals noted that just because one has standing to request third-party visitation, the facts and circumstances in any case may show that such visitation is, or is not, in the best interests of the Child. Ultimately, the best interests of the Child are first and foremost in determining visitation.

This case is important in that it establishes that partners in same sex relationships have an avenue for relief. Namely, that they can request visitation with a child they have not legally adopted and are not otherwise related by blood. This case recognizes the importance of a continued relationship of a Child with a person that child has established a bond and relationship with, even after the same sex relationship has ended. It may be a small step, but this case forwards the movement of recognizing that families are no longer comprised of the traditional Mom, Dad and Child, but that other persons can have a significant impact and importance in a Child’s life.

We hope that this blog post has been helpful in understanding the rights and duties of same sex partners raising children together. Ciyou & Dixon, P.C. practices throughout the state of Indiana. This blog post was written by attorney, Lori Schmeltzer.

  1. A.C. v. N.J., __ N.E.2d __ (Ind.Ct.App.2013)
  2. I.C. § 31-17-2-3

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