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Indiana Statute Regarding Child Custody Cannot Be Used to Sidestep State Adoption Statute
Posted in Estate Planning

The Indiana Court of Appeals determined that Indiana Code 31-17-2-3, a statute permitting any parent or non-parent to initiate child custody proceedings, cannot be used to circumvent Indiana’s adoption statute. MS and CS were in a committed same-sex relationship for over a decade. In 2003, CS was artificially inseminated from a donor and gave birth to SS. In 2007, CS and MS filed a “Joint Petition to Determine Custody.” This would allow MS to share custody of SS or, should the relationship end, give her rights to parenting time. The trial court approved the terms of the petition and granted joint legal custody and parenting time to MS. In 2009, MS and CS had a violent altercation in the presence of SS, and ended their relationship. Afterwards, the trial court voided the 2007 custody and parenting order, apparently of their own accord, stating it had no authority to have issued the order. MS filed a motion asking the trial court to set that decision for further argument and evidence. A hearing was held in 2010 and the trial court vacated the 2007 custody and parenting time order. MS appealed. During the appeal, MS maintained was that the 2007 order was valid. The Court of Appeals noted that Indiana Code 31-17-2-3 does permit custody determination by either "a parent" or "a person other than a parent." However, the Court concluded that the code was not intended to be used in this manner, because doing so would sidestep the procedural safeguards written into the Adoption Act (e.g., consent of the natural parent). The Court further explained that, because the trial court lacked subject matter jurisdiction to have issued that order, the order was void and not merely voidable. MS also argued that despite the voiding of the 2007 order, she is still entitled to parenting time with SS. MS cited the Levin case, in which the Indiana Supreme Court determined that a husband was prohibited from denying support obligations for a child his wife conceived through artificial insemination. However, the Court of Appeals refused to consider whether MS was a legal parent of SS under a Levin analysis because MS failed to raise that argument before the trial court. Finally, MS argued that she was entitled to visitation under a body of case law, mainly brought by former stepparents, permitting third-party visitation under certain circumstances. MS also cited the 2005 King v. S.B. case, in which the Indiana Supreme Court held that a mother's former same-sex domestic partner's lawsuit seeking custody or visitation should not have been dismissed. The Court of Appeals concluded that even if King established a basis for MS's claim, MS was not entitled to visitation because it would not serve the best interests of SS. Evidence detailing the violent altercation between MS and CS, which SS witnessed, supported the trial court's decision. The trial court's decision was affirmed.

To learn more about Michael Kohlhaas and his practice, visit his profile.

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    Mike is a partner in Bingham Greenebaum Doll LLP’s Estate Planning Department. The Estate Planning Department seamlessly coordinates and executes a wide array of legal services that cater to the unique needs of high ...



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