A.C. v. Newjersey

• Court: Indiana Appellate Court
• Writing for the Court: FRIEDLANDER
• Citation: A.C. v. N.J., 1 N.E.3d 685 (Ind. App. 2013)
• Decision Date: 31 October 2013
• Docket Number: No. 20A04–1301–DR–37.,20A04–1301–DR–37.
• Parties: A.C., Appellant–Petitioner, v. N.J., Appellee–Respondent.

1 N.E.3d 685

A.C., Appellant–Petitioner,

v.N.J., Appellee–Respondent.

No. 20A04–1301–DR–37.

Court of Appeals of Indiana.

Oct. 31, 2013.

Lesa C. Duvall, Stephanie L. Bloomer, Kristin D. Caldwell, Duvall Bloomer & Caldwell, P.C., Indianapolis, IN, Attorneys for Appellant.

Amy D. Griner, Griner & Company, Mishawaka, IN, Attorney for Appellee.

OPINION

FRIEDLANDER, Judge.

During the course of their same-sex domestic partnership, N.J. (Mother) and A.C. (Partner) decided to have a child together. Mother was artificially inseminated with donor semen and gave birth to C.J. (Child), and for a time, Mother, Partner, and Child functioned as a family unit. When Child was two years old, Mother and Partner ended their relationship. Thereafter, Partner exercised regular visitation with Child for several months, until Mother stopped all contact between Partner and Child. Partner then filed a petition seeking joint custody and visitation, which the trial court denied. Partner now appeals, raising the following restated issues:

1. Did the trial court err in declining to enforce the parties' agreement that Partner would be a parent to Child?

2. Did the trial court err in denying Partner's request for joint custody?

3. Did the trial court err in concluding Partner lacked standing to be granted visitation?

We affirm in part, reverse in part, and remand with instructions.¹

Partner and Mother lived together in a same-sex domestic relationship for several years. In August 2007, when they had been together for two years, Partner and Mother had a commitment ceremony. The couple also decided to have a child via artificial insemination with donor semen, and they agreed that Mother would carry the child. As a result of the insemination, Mother became pregnant and gave birth to Child in April 2008. Partner was present at Child's birth and cut the umbilical cord.

After Child's birth, Mother, Partner, and Child lived together as a family unit for over two years, with the exception of an approximately two-month period shortly after Child's birth when Partner moved out due to difficulties in her relationship with Mother. During the time they all lived together, Mother was Child's primary caregiver and did not consistently work outside the home. Partner worked and provided financial support for the family for the majority of this time. Mother provided financial support as well, in the form of wages when she was working, unemployment compensation and short-term disability benefits when she was not, and student loans and a small inheritance. Child referred to Mother as “Mama” and Partner as “Mommy.” Transcript at 9. When Child attended preschool, Mother listed Partner as the co-parent and emergency contact with the school. Mother and Partner discussed the possibility of Partner adopting Child, but no adoption proceedings were ever commenced.

Mother and Partner terminated their relationship and ceased living together in August 2010, when Child was a little over two years old. Mother maintained custody of Child and, for the next nine months, allowed Partner liberal visitation with Child—Child typically spent two or three overnights per week with Partner. According to Mother, Partner did not provide financial support during this time, with the exception of a few packages of diapers and approximately eighty dollars. Mother ended all contact between Partner and Child in July 2011 due to concerns about instability in Partner's living arrangements and possible drug use. Partner has not seen Child since October 2011, when she went to visit him at his daycare.

On January 18, 2012, Partner filed a petition seeking custody of Child, in which she argued it was always the parties' intent that both Partner and Mother would be considered Child's parents, and that it was in Child's best interests for Partner to have custody. Partner also asserted that she was a de facto custodian. When the matter came to trial on October 30, 2012, Partner clarified that she was seeking joint custody and visitation rather than sole custody. The trial court issued its order denying Partner's requests for joint custody and visitation on December 31, 2012. Partner now appeals.²

When a trial court enters findings of fact and conclusions of law pursuant to Indiana Trial Rule 52(A), we apply a two-tiered standard of review. In re Visitation of M.L.B., 983 N.E.2d 583 (Ind.2013). We must first determine whether the evidence supports the findings, and second, whether the findings support the judgment. K.I. ex rel J.I. v. J.H., 903 N.E.2d 453, 457 (Ind.2009). We will set aside findings of fact and conclusions of law only if they are clearly erroneous, and “ ‘due regard shall be given to the opportunity of the trial court to judge the credibility of witnesses.’ ” M.S. v. C.S., 938 N.E.2d 278, 281–82 (Ind.Ct.App.2010) (quoting K.I. ex rel. J.I. v. J.H., 903 N.E.2d 453, 457 (Ind.2009)). A judgment is clearly erroneous when the record contains no evidence supporting the findings, the findings fail to support the judgment, or when the trial court applies an incorrect legal standard to properly found facts. M.S. v. C.S., 938 N.E.2d 278.

Where, as here, a trial court enters findings of fact and conclusions of law sua sponte, the specific findings control only as to the issues they cover, while a general judgment standard applies to issues on which the trial court has not entered findings. Id. We may affirm a general judgment on any theory supported by the evidence. Id. “As we have repeatedly observed in child custody cases, trial courts are in the position to see the parties, observe their conduct and demeanor, and hear their testimony; therefore, their decisions receive considerable deference on appeal.” Nunn v. Nunn, 791 N.E.2d 779, 787 (Ind.Ct.App.2003). Pure questions of law, however, are reviewed de novo. M.S. v. C.S., 938 N.E.2d 278.

1.

Because the issue is potentially dispositive, we first address Partner's argument that the trial court erred in declining to enforce the agreement between Mother and Partner that Partner would be child's second parent. Mother does not dispute that she agreed to raise Child with Partner, but she argues that such agreements are unenforceable in Indiana.³

Nearly a decade ago, this court first addressed the issue of whether two women in a same-sex domestic partnership who agree to bear and raise a child together by artificial insemination of one of the partners with donor semen are both the legal parents of the resulting child. In re A.B., 818 N.E.2d 126 (Ind.Ct.App.2004), vacated by King v. S.B., 837 N.E.2d 965 (Ind.2005). In that case, King and Benham lived together in a same-sex domestic relationship for nearly nine years. The couple participated in a commitment ceremony and held themselves out to their families, friends, and communities as being committed domestic partners. Several years later, the couple decided to raise a child together and agreed that Benham would be inseminated with semen donated by King's brother. All parties involved intended for King and Benham to be the co-parents of the resulting child. King was present for and participated in A.B.'s birth, and subsequently acted as A.B.'s second parent. Additionally, King filed a petition to adopt A.B. with Benham's consent, but when the couple briefly separated prior to the completion of the adoption, Benham withdrew her consent. The couple subsequently reconciled, but did not pursue the adoption further. King and Benham ended their relationship in January 2002, and King thereafter paid monthly support and had regular and liberal visitation with A.B. until July 2003, when Benham unilaterally terminated visitation and began rejecting support payments.

Thereafter, King filed a declaratory judgment action seeking to be recognized as A.B.'s legal parent, with all the rights and obligations attendant to that status. Alternatively, the complaint asserted that even if King was not A.B.'s legal parent, she was nonetheless entitled to continued visitation because she had acted in loco parentis and in a custodial capacity. Benham filed a motion to dismiss the complaint pursuant to Ind. Trial Rule 12(B)(6) for failure to state a claim on which relief may be granted, which the trial court granted. This court reversed, reasoning as follows:

[W]e agree with [King] that “no [legitimate] reason exists to provide the children born to lesbian parents through the use of reproductive technology with less security and protection than that given to children born to heterosexual parents through artificial insemination.” As we have recently observed in the context of same-sex adoptions, we cannot close our eyes to the legal and social needs of our society; the strength and genius of the common law lies in its ability to adapt to the changing needs of the society it governs.

“[O]ur paramount concern should be with the effect of our laws on the reality of children's lives. It is not the courts that have engendered the diverse composition of today's families. It is the advancement of reproductive technologies and society's recognition of alternative lifestyles that have produced families in which a biological, and therefore a legal, connection is no longer the sole organizing principle. But it is the courts that are required to define, declare and protect the rights of children raised in these families, usually upon their dissolution. At that point, courts are left to vindicate the public interest in the children's financial support and emotional well-being by developing theories of parenthood, so that “legal strangers” who are de facto parents may be awarded custody or visitation or reached for support. Case law and commentary on the subject detail the years of litigation spent in settling these difficult issues while the children remain in limbo, sometimes denied the affection of a “parent” who has been with them from birth.”

We encourage the Indiana legislature to help us address this current social...