I remember when the parentage of nonbio moms was so invisible to courts that the ability to obtain visitation rights after the end of the couple's relationship was considered a great victory. The breakthrough case was In re H.S.-H.K. in Wisconsin in 1995. The court set out a four-part test, and if the nonbio mom could prove each part and filed a court action soon after the bio mom denied her contact with the child, then she could get visitation rights.
Well, almost 20 years later, that result does not seem like much of a victory. Is it better than the result in Debra H., leaving nonbio moms who are not married to the bio mom and don't complete second parent adoptions without any remedy at all? Well, of course. But increasingly, both statutes and court rulings confer parentage on the nonbio mom, giving her parental rights equal to that of the bio mom (e.g., California, New Mexico, Washington, Washington DC, Nevada). And even without that, numerous states (including some notably "red" ones like North Carolina and Kentucky) allow the nonbio mom to obtain joint custody (or custody) when it is in the child's best interests.
Indiana looked to be one of such states from numerous appeals court rulings over the years. But last week, in A.C. v. N.J., the Court of Appeals did a backtrack of sorts, reading a limit into prior cases and leaving the nonbio mom with the option of seeking only visitation. The facts of the case were unremarkable and consistent with other typical scenarios (complete with donor insemination and the nonbio mom cutting the child's umbilical cord in the delivery room). The couple lived together until the child was two and then the bio mom allowed regular visitation for another nine months. When the bio mom terminated visitation, the nonbio mom filed for joint custody.
This ruling highlights why the proposed Model Third-Party Child Custody and Visitation Act, promulgated by the ABA Section on Family Law this past summer, is so off base. The Model Act parties like it's 1995, to use a musical metaphor. It basically instantiates the In re H.S.-H.K. standard and would limit nonbio moms to visitation. The drafters may think they are doing a favor for the children of same-sex couples, but if so they are sadly out of step with the recent trends that recognize parentage or at least the right to joint custody for nonbio moms and dads in such families. Had the language of the Model Act been proposed in 1996, right after the Wisconsin ruling, I would have jumped for joy. Today it makes me cringe. Although it would help families in states with terrible law (that's you New York and Maryland), it could easily slow the progress towards equal parenting rights which is spreading across the country.
The Indiana appeals court said it would await a definitive ruling from the state's Supreme Court before going farther than visitation rights. I don't know if this nonbio mom will seek review in that court, but when some parent finally does I hope that court can look at the family before it and see the obvious -- that the child has two parents.