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Indiana Court Says Law Unclear on Same-Sex Custody

Friday Nov 1, 2013
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The Indiana Court of Appeals wants the Legislature to update state laws to address custody issues regarding children of same-sex and other non-traditional families.

The judges said in a ruling issued Thursday that state law provides no guidance in situations where an intended parent lacks a genetic connection to the child, The Indianapolis Star reported (http://indy.st/16RbQh0 ). That ruling came in a custody dispute from Elkhart County between a same-sex couple.

"What began as a trickle is rapidly becoming a torrent, and the number of children whose lives are impacted by rules that have yet to be written only increases with the passage of time," Judge Ezra Friedlander wrote in the opinion. "They, and we, would welcome a legislative roadmap to help navigate the novel legal landscape in which we have arrived."

The court sent the case back to the Elkhart County judge with instructions to consider the non-biological mother’s visitation request under standards involving a former stepparent or grandparent.

Indiana’s law barring same-sex marriage or the recognition of such marriages and civil unions from other states contributes to the lack of clarity.

Friedlander’s opinion points out that the appeals court made a similar request of legislators about how to define who is a child’s parent in 2004.

"Our system of government entrusts the General Assembly, not the courts, to fashion a framework for deciding matters as tethered to social mores and sensibilities as this subject is," he wrote. "We feel the vacuum of such guidance even more acutely now than we did eight years ago."

Indiana is behind other states in addressing the changing nature of families, said Jennifer Drobac, a professor at Indiana University’s McKinney School of Law in Indianapolis.

Drobac said the court’s ruling recognized the intent of those in a committed relationship who decided to have and raise a child together.

"Because Indiana does not permit or recognized same-sex marriage, we are going to see a lot more problems like this," she said. "Had they been married, there would be no question."

The Republican-dominated General Assembly is expected to vote during its session that starts in January whether to advance a state constitutional amendment banning gay marriage to a statewide referendum. If legislators approve that step, the proposal would go before voters on the November 2014 ballot.

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