Tuesday, December 14, 2010

Indiana rules against nonbio mom...might be the right result but the wrong reasoning

Indiana has allowed second-parent adoption since at least 2004. (In re K.S.P.). That's part of the background to M.S. v. C.S., a case decided by the Indiana Court of Appeals last week. C.S. is the biological mother of a daughter, S.S, conceived through donor insemination. M.S. was C.S.'s partner when the child was born in 2003 (and for several years before). Instead of filing a second-parent adoption, in 2007 the couple filed a petition for joint legal custody, naming C.S. the primary physical custodian and giving M.S. parenting time (a/k/a visitation). The court granted the order in September 2007.

In April 2009, the couple's relationship ended, after M.S. physically attacked C.S. in the child's presence. A dispute about the child followed, and last week's decision established a number of legal principles. The court found the 2007 custody order void as a circumvention of the state's adoption laws. I can't help but wonder who gave this couple legal advice. Perhaps there was something in their background that made a lawyer believe an adoption would not be granted after a social worker completed a home study. On the other hand, had this couple lived in the District of Columbia (at least under current law), the child would have had two parents from birth based on the couple's consent to the insemination of C.S. with the intent that both women would be parents of the child. (I'm assuming that was the case....why else go to the trouble of getting a court order establishing a legal relationship between the partner and the child?) In other words, M.S. would not have needed to adopt a child that was hers already.

M.S. did argue that she was S.'s legal parent because of her consent to the donor insemination. She asked to be treated the same way a husband would be treated who consented to his wife's insemination. And here is an interesting point about Indiana: It has no statute saying that a husband is the father of a child born to his wife, with his consent, using donor insemination, yet the Indiana Supreme Court held in 1994 that a husband was, indeed, a father under those circumstances. So this court could have been as creative in its reasoning and found that M.S. was a parent. But the court got around that by saying that M.S. didn't raise the issue in the trial court and so could not raise it on appeal. That does leave the door open for a nonbio mom to raise the issue in the future, but I wouldn't count on it being a winning argument.

Finally, the court accepted the possibility that M.S. could get visitation rights even though she was not a parent and even though the previous court order was invalid. The court cited a 2005 Indiana Supreme Court ruling leaving open that possibility when two women raising a child together split up. But since M.S. could only get visitation rights based on the best interests of the child, the court affirmed the trial judge's ruling that such visitation would not be in S.'s best interests. The trial judge held a hearing, and the record showed that M.S. pushed C.S. in the presence of the child and said to S. that she was going to "f***ing kill your mother."

So the good news, sort of, is that M.S. got a hearing based on the child's best interests. It's hard to be sympathetic to M.S., given her actions. But here's what leaves me uncertain. Had M.S. been a legal parent, the case would have proceeded differently. A court would have made a real effort to address the relationship as a whole rather than one possibly isolated event. (Maybe it wasn't isolated, but we don't know that). Fathers get supervised visitation if there is a concern for a child's safety. They don't get cut out entirely. This girl was 6 years old when the couple split up, and if she had two parents then losing one entirely should not be done lightly. On the other hand, if M.S. is the abusive batterer she might be, then she should lose, but so should a father in that situation, and that never happens.

Two wrongs don't make a right, and children of abusive lesbian mothers need protection. I'm left wishing I had more facts. But I'm also clear that the dispute should have been treated as one between parents, and that it surely was not.

1 comment:

Janet said...

Completely agree on all counts. I recently had a court find that the husband had committed acts of domestic violence against the wife that warranted a permanent restraining order and her having sole decision-making regarding the children, but still enter a parenting plan that gradually phases into a 50-50, week on/week off plan over the next few years. I despair of the courts ever paying adequate attention to the impact of domestic violence on children. Still, the Indiana court's decision simply to excise the non-bio mom is very troubling -- not just for this family but for the devastating impact it may have on other families.