Lesbian co-parent can sue for custody, but ground rules not spelled out
BY ARTHUR S. LEONARD
Comparing her standing to that of a stepparent, the Indiana Supreme Court ruled on November 23 that a lesbian co-parent could seek a judicial declaration that she has parental rights toward the child she was raising with her former partner.
The ruling in Dawn King’s lawsuit aimed at being reunited with her child reversed a trial court decision to dismiss her claims, but disagreed with the rationale adopted by an intermediate court of appeals that first heard King’s appeal.
King and Stephanie Benham lived together as a couple for several years before King’s brother donated the semen so that the couple could conceive the child in 1998. Benham gave birth to the child, identified in the court ruling only as A.B., the following year. The couple raised the child together until 2002 when the relationship ended. King continued to contribute child support and see the child for another year and a half, until Benham cut off visitation and refused further child support payments in mid-2003.
At the time the women split up, King had a pending co-parent adoption petition, but that was withdrawn when Benham revoked her consent. In response, King filed the lawsuit seeking a declaration of her parental rights. She argued that the women had jointly planned to have the child and that she had been a full participant through the process, providing emotional and financial support and jointly raising the child.
Monroe County Circuit Judge Kenneth Todd granted Benham’s motion to dismiss the case, finding no legal basis for King’s petition. The state’s court of appeals reversed, finding that the women’s original agreement to be co-parents and jointly raise the child could provide a basis for King to claim parental rights. The Supreme Court vacated that decision, and premised its ruling on a different theory.
Writing for the court, Justice Frank Sullivan, Jr., pointed out that a motion to dismiss a case should not be granted unless there is absolutely no basis on which the plaintiff could prevail. The court concluded that King had a potentially plausible argument based on a 2003 ruling in which it found that a stepfather appointed guardian of children on the death of their mother could seek to make that status permanent, despite the objection of the children’s biological father, if a trial court found that to be in the children’s best interest.
From this ruling, Sullivan drew the lesson that “Indiana courts have authority to determine ‘whether to place a child with a person other than the natural parent,’ which we hold necessarily includes the authority to determine whether such a person has the rights and obligations of a parent.” Sullivan said that the trial court’s determination of the best interests of the child in such a situation merited “deference.”
Since a trial court has the power to grant King relief in this case, her case should not have been dismissed outright.
The court failed, however, to take the next step and specify exactly how the trial court was to balance Benham’s parental rights with King’s claims. Instead, it returned the case to the Monroe Circuit Court without any substantive instructions other than to revoke its dismissal and allow the case to proceed.
The majority opinion drew an anguished dissenting opinion from Justice Brent E. Dickson, who argued that the court’s decision was inconsistent with the state’s adoption laws, virtually allowing a non-parent to circumvent the procedures established by statute with the simple device of a lawsuit seeking a declaration of parental rights. Dickson acknowledged that the courts have power to change judge-made rules in light of changing social conditions, but argued that the court lacks authority to alter statutory policy.
He warned that the case threatened to open a Pandora’s box, allowing anybody with a potential claim of parental rights to run into court. He also insisted that, in addition to flouting statute, the court was overriding the will of the people of Indiana, who have not shown significant support for legal recognition of same-sex couples. Dickson noted that the state enacted a bar to same-sex marriage years ago, and that the Legislature recently approved a resolution to put a constitutional ban on same-sex marriage on the ballot. Given these circumstances, he objected to the court making a ruling that could be construed as giving legal effect to same-sex unions.
King is represented by Sean Lemieux, an Indiana lawyer who formerly headed the Indiana Civil Liberties Union’s gay rights project, with amicus brief support from the ICLU as well as Lambda Legal.