Indiana Expands Second-Parent Adoption

Appeals court rules lesbian co-parent can adopt her partner’s biological children

The Indiana Court of Appeals ruled on March 23 that a lesbian co-parent may adopt her same-sex partner’s biological child without forcing the partner to simultaneously end her own parental rights, if that is in the best interests of the child.

Reversing a decision by the Newton County Circuit Court, the appeals court answered an important question that it had left open last year when it ruled that a same-sex co-parent could adopt her partner’s adopted child.

The problem that Monica J. Polchert confronted in attempting to adopt the two teenage children of her partner, Linda L. Lutz, with the permission of Linda and her ex-husband, the children’s biological father, was that Indiana’s adoption law specifically states that if a child’s biological parents are alive, a child’s adoption will terminate the parental rights of its biological parents. The only statutory exception is for a situation where the adopting party is a step-parent of the child, married to its biological parent. This statute did not apply to last year’s ruling, because in that case the child’s biological parents were no longer in the picture.

Linda was awarded legal custody of the children when she divorced her husband. Polchert and Lutz have lived together as partners for eight years, during which Monica has become a second mother to the children. Polchert’s employer provides domestic partner health insurance benefits, which extend to Linda but not to the children, since Monica has no legal responsibility for their support. At present, the children lack major medical health insurance coverage, which they will gain if the adoption is approved.

Polchert petitioned to adopt the children, and the Newton County Office of Family and Children investigated and prepared an enthusiastic endorsement of her petition, having concluded that adoption would be in the best interests of the children, and noting the significance of the insurance coverage issue. The adoption specialist’s report concluded, “It is evident that the decision to petition for the adoption of these children has been made with the best interest of the children in mind and with serious thought and planning on the part of their mother, Linda Lutz, and her partner, Monica Polchert.”

But Newton Circuit Judge Jeryl F. Leach concluded that under the clear language of the Indiana statutes, this adoption could not be approved without terminating Lutz’s parental rights, so the petition was denied.

Observing that the “guiding principle” of the statute is “the best interests of the child” and the preservation of family relationships, Freidlander stated that “the only immediate threat to preservation of family relationships in the instant case is the harsh application of the divesting statute”––the law that would require Lutz to “divest” her parental rights.

Friedlander explained that the purpose of the divesting statute was to protect the family formed by the adoption from meddling by the child’s former parents. But, he wrote, “this objective is not advanced by application of the divesting statute in situations involving stepparent adoptions or second-parent adoptions, where the biological parent and proposed adoptive parent are both integral members of the proposed adoptive family.”

Friedlander found it to be “clear” that the divesting statute “was never intended as a sword to prohibit otherwise beneficial intrafamily adoptions by second parents.”

Since Leach had denied the petition based on the statute, no determination had been made on whether the adoption is in the best interest of the children, so the case was sent back to the trial court for “further proceedings consistent with this opinion.” The three-judge appellate panel was unanimous.

R. Steven Ryan, of Kentland, Indiana, represents the mothers in this proceeding.

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