Judges uphold denying visitation to ex-partner

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The Indiana Court of Appeals ruled today that lawmakers didn’t intend to allow parents to establish joint custody with third parties under Indiana Code Section 31-17-2-3 by simply filing a joint petition with a trial court. Doing so would allow parents and third parties to circumvent the requirements of the Adoption Act.

“We conclude that Indiana Code section 31-17-2-3 does not contemplate the creation of a shared custody arrangement between a parent and a nonparent, regardless of the consent of the parties,” wrote Judge Paul Mathias in M.S. v. C.S., No. 03A01-1003-DR-140, in which a woman challenged the trial court’s ruling to vacate a previous custody and visitation order after she and her same-sex partner broke up.

C.S. had a child with donor sperm while she and M.S. were a couple. They filed a joint petition to determine custody, in which they sought joint legal custody and for M.S. to have parenting time. In September 2007, the trial court granted the petition; after the couple broke up, the trial court held it had no legal authority to enter the previous order and voided it. After a hearing in 2010, the trial court vacated the September 2007 order.

In addition to arguing the order was valid under I.C. Section 31-17-2-3, M.S. also claimed the 2007 order was binding because the parties consented to its entry. She wanted the appellate court to extend I.C. Section 31-15-2-17 to cover her situation because the protections provided by the dissolution statues should apply to all children, regardless of whether they are born into a traditional family or not.

“While we are mindful of the needs of children born into nontraditional families, we must also interpret the statute according to its plain and ordinary meaning. We … are further constrained to leave the public policy determinations attendant to the regulation of legal relationships within nontraditional families to the legislative branch of our government, the General Assembly,” wrote the judge.

The appellate court also rejected M.S.’s arguments that the trial court abused its discretion by modifying the custody and parenting time schedule in the 2007 order without a petition to modify or show substantial change in circumstances; and that she is entitled to parenting time with S.S.

Because the original order was void ab initio and a legal nullity, there was no legally effective custody or parenting time schedule to modify, wrote Judge Mathias. In addition, M.S. waived any claim on appeal that she is the child’s legal parent, so she isn’t entitled to parenting time with the child.

The judges cited King v. S.B., 837 N.E.2d 965, 966 (Ind. 2005), in which the Indiana Supreme Court reversed the trial court grant of the mother’s motion to dismiss for failure to state a claim, holding that the mother’s former domestic partner was not necessarily precluded from being awarded some of the relief sought. The ex sued to be recognized as the child’s legal parent or to be awarded continued visitation with the child.

“Assuming without deciding that third-party visitation is not limited to former stepparents based on our supreme court’s holding in King, we conclude that M.S. is not entitled to visitation with S.S.,” wrote the judge.


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  1. This is ridiculous. Most JDs not practicing law don't know squat to justify calling themselves a lawyer. Maybe they should try visiting the inside of a courtroom before they go around calling themselves lawyers. This kind of promotional BS just increases the volume of people with JDs that are underqualified thereby dragging all the rest of us down likewise.

  2. I think it is safe to say that those Hoosier's with the most confidence in the Indiana judicial system are those Hoosier's who have never had the displeasure of dealing with the Hoosier court system.

  3. I have an open CHINS case I failed a urine screen I have since got clean completed IOP classes now in after care passed home inspection my x sister in law has my children I still don't even have unsupervised when I have been clean for over 4 months my x sister wants to keep the lids for good n has my case working with her I just discovered n have proof that at one of my hearing dcs case worker stated in court to the judge that a screen was dirty which caused me not to have unsupervised this was at the beginning two weeks after my initial screen I thought the weed could have still been in my system was upset because they were suppose to check levels n see if it was going down since this was only a few weeks after initial instead they said dirty I recently requested all of my screens from redwood because I take prescriptions that will show up n I was having my doctor look at levels to verify that matched what I was prescripted because dcs case worker accused me of abuseing when I got my screens I found out that screen I took that dcs case worker stated in court to judge that caused me to not get granted unsupervised was actually negative what can I do about this this is a serious issue saying a parent failed a screen in court to judge when they didn't please advise

  4. I have a degree at law, recent MS in regulatory studies. Licensed in KS, admitted b4 S& 7th circuit, but not to Indiana bar due to political correctness. Blacklisted, nearly unemployable due to hostile state action. Big Idea: Headwinds can overcome, esp for those not within the contours of the bell curve, the Lego Movie happiness set forth above. That said, even without the blacklisting for holding ideas unacceptable to the Glorious State, I think the idea presented above that a law degree open many vistas other than being a galley slave to elitist lawyers is pretty much laughable. (Did the law professors of Indiana pay for this to be published?)

  5. Joe, you might want to do some reading on the fate of Hoosier whistleblowers before you get your expectations raised up.