Ever since the United States Supreme Court determined that state bans on same-sex marriage were unconstitutional,1 the legal landscape has seen numerous changes regarding same-sex individual’s legal rights in divorces and ancillary matters flowing out of the divorce, such as division of property. One of the biggest changes that has occurred is the legal rights an individual has to a child born during the marriage. So, you may be wondering, what are my rights to my child born during my same-sex marriage? In this blog, we try to answer that question, as well as provide general information on an individual’s rights as a same-sex parent in Indiana.
Many same-sex couples, like heterosexual couples, want to have a child. The only difference between the two is that when same-sex couples have a child born during the marriage, the couple most often uses artificial insemination to achieve their goal. As one may imagine, artificial insemination can create some tricky legal nuances for parents, especially for the parent that did not carry the child or act as a donor. The reason is that, technically speaking, that parent is not a “biological” parent. While this may seem like a silly distinction now, prior to the United States Supreme Court declaring state bans on same-sex marriage were unconstitutional, many same-sex parents who were not considered “biological” parents were precluded from having any rights to their child that they raised.
Nowadays, however, same-sex parents who had a child born during the marriage have more rights to their children, regardless of whether the parent is technically the “biological” parent. To expand, in Indiana, the Courts have determined that spouses who knowingly and voluntarily consent to artificial insemination are the legal parents of the resulting child. More specifically, following the Supreme Court’s decision in Obergefell v. Hodges, the Indiana Court of Appeals, in Gardenour v. Bondelie, was faced with making a determination as to a same-sex partner’s legal rights to custody and parenting time of the child born during the marriage.2 In Gardenour, one of the mother’s was arguing that the other mother was not the child’s legal parent, and that any agreement to co-parent the child born of artificial insemination was void. The Indiana Court of Appeals dismissed this argument and instead found that, when spouses “knowingly and voluntarily consented to artificial insemination . . . [both parents are] legal parent[s].”
The main takeaway to remember is that a same-sex parent to a child born during the marriage is that child’s legal parent, meaning that person has all rights and responsibilities that a “biological” parent would have. However, it is important to point out that all custody proceedings are extremely fact-sensitive matters and depend heavily on the facts and circumstances of each individual case. Not to mention, custody proceedings can be trying times for individuals as they tend to be very personal and emotional matters. If you are in a child custody case, it may be helpful to seek the assistance of an attorney to help navigate through the process. Dixon & Moseley, P.C. attorneys handle all types of child custody cases throughout the State of Indiana and understand the significance of same. This blog post is written by Dixon & Moseley, P.C. advocates and is not intended as specific legal advice or a solicitation for services. It is an advertisement.
