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Friday, September 03, 2004

Indiana Law - Same-sex custody case in Noblesville

"Unusual custody case tests state law: Same-sex couple -- one is child's biological parent, the other adoptive -- will go to court today" is the headline to a really interesting story by James Gillaspy in the Indianapolis Star. Some quotes:

NOBLESVILLE, Ind. -- A couple sparring over custody of their son will square off today in a legal fight that also tests state law. Both parents are women, and each is the mother of 4-year-old Luke Wihebrink -- one biologically, the other by adoption. Jill Wihebrink, 34, and Nancy Lafferty, 53, are ex-partners whose son was conceived by Wihebrink through artificial insemination, then adopted by Lafferty.

While some judges recognize such relationships, Indiana law does not. As a result, problems can arise when relations sour. "Typically, adoption cuts all the ties between the birth mother and the child," explains Maria Lopez, who teaches family law at the Indiana University School of Law-Indianapolis. "They call it the death penalty . . . because that's it. It's over."

But the case today in Hamilton Superior Court 2 is not typical. It's new ground for Judge Bernard L. Pylitt, who will decide how traditional family law applies to a nontraditional family.

"The issue here is, 'How do you address custody?' " said attorney Allan W. Reid, who represents Lafferty. "Everybody acknowledges there is no law that applies to this situation."

From a legal perspective, the problem began when a Tippecanoe County judge authorized the couple's joint parenting with an adoption decree. A letter-of-the-law interpretation of the adoption statute does not allow it.

The potential for complications grew when Lafferty, a former English instructor at Ball State University, petitioned the Hamilton County court for a child custody order not technically allowed for unmarried parents. She had wanted to ensure her position as the custodial parent after Wihebrink was imprisoned for reckless homicide following a fatal drunken-driving accident.

More from the story:
The lag in legislation to recognize the nontraditional family situations that modern-day judges must address is a growing challenge for courts nationwide.

While the birth-and-adoption process Wihebrink and Lafferty pursued is rare in Indiana, the practice was commonplace in California when same-sex couples there were stunned by a state appeals court ruling in 2001.

The court noted state law didn't permit mothers' same-sex partners to adopt their child without giving up their parental rights.

The next year, legislators enacted a law to allow the adoption process under a step-parent provision that does not require birth mothers to relinquish their rights.

Though such legislation does not exist in Indiana, former Judge Jerry Barr, Pylitt's predecessor in Hamilton Superior Court, followed the lead of the Tippecanoe County judge who had issued the adoption decree. . Barr treated the couple as though they were married and, in August 2003, granted the child custody agreement Lafferty and Wihebrink sought. * * *

In March, the Indiana Court of Appeals recognized the dilemma judges face and offered guidance in a Newton County case. Although a father had agreed to surrender parental rights so his ex-wife's same-sex partner could adopt their children as a second parent, the county judge held that state law does not address their situation as unmarried partners.

Without the benefit of marriage, he ruled, the law required the biological mother to surrender parental rights in order for adoption to occur. Because the same-sex couple could not marry under Indiana law, he concluded, there could be no legal adoption making them co-parents.

The appeals court disagreed. "The court basically said it's similar to a step-parent situation, and we're going to find that the petitioner should be able to adopt," said Tom Olvey, counsel for the Indianapolis adoption agency Bethany Christian Services.

Although same-sex couples can't marry in Indiana, the appellate finding gives weight to the sort of adoption the Tippecanoe County judge had approved. And it gave judges across the state a legal foundation to continue creating new family law through the court system.

"When social mores change, governing statutes must be interpreted to allow for those changes in a manner that does not frustrate the purposes behind their enactment," states the appellate court's March 23 ruling. In allowing such same-sex adoptions, the court said, "we are furthering the purposes of the statute as was originally intended by allowing the children of such unions the benefits and security of a legal relationship with their de facto second parents."

The Court of Appeals decision referenced in the story is In The Matter of K.S.P and J.P. (3/23/04 IndCtApp). Access the Indiana Law Blog entry here, the case is about half-way down the page.

A related story today, about California law, is posted at Law.com and headed "Calif. Supreme Court to Clarify Gay Parents' Rights." And this July 2 story reports:

A Los Angeles appeal court took the unprecedented step Wednesday of ruling that a non-birth mother in a same-sex relationship could claim co-parent status if viewed as a "presumed father" under the state's Uniform Parentage Act.

"That statute, when read in a gender-neutral manner," 2nd District Justice H. Walter Croskey wrote, "provides that a woman is presumed to be a parent of a child if ‘[she] receives the child into [her] home and openly holds out the child as [her] natural child.'

"We see no prohibition in the act," he continued, "that prevents us from concluding that a child has two parents of the same sex, especially here when no one other than the partner is vying to become the child's second parent."

Posted by Marcia Oddi on September 3, 2004 08:38 AM
Posted to Indiana Courts