No Gay Marriage in Indiana, but Custody Fights, We’ve got those
In Indiana, it is possible for two partners of the same sex to become the parents of a child or children through adoption. You will not find this specifically in the adoption code here in Indiana. In fact, I imagine the drafters of the adoption code are scratching their heads, trying to figure out how we attorneys slipped gay adoptions through the code. It started when a smart attorney figured out that when the code was amended to permit step-parent adoptions (i.e. a new spouse adopts his or her spouses children without terminating the parental rights of the spouse). There is nothing in the code limiting this process to people who are legally married. So the adoption was filed, and when the issue got to the Court of Appeals in Indiana, the courts agreed with this aggressive reading of the adoption code.
These adoptions typically do not develop much publicity. Typically, there will be no opponents in an adoption, no one to complain, and once the adoption is final, the records are closed, so it is difficult to discover whether the courts are approving gay adoptions down at the courthouse. But just as what goes up, must come down, some of the families that we put together in the law, will come apart.
Good coverage today in the Indiana Law Blog about a story breaking in the Indianapolis Star:
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.
The couple’s joint request also specified regular visitation rights to maintain Wihebrink’s parenting time while behind bars.
“That’s one of the ambiguities here,” said Reid. “In theory, both of them have custody. What we were seeking was just a recognition that Jill is in prison, Nancy is now the custodial parent.”
The lag in legislation to recognize the nontraditional family situations that modern-day judges must address is a growing challenge for courts nationwide.
