ILNews

Judges uphold denying visitation to ex-partner

Back to TopCommentsE-mailPrintBookmark and Share

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.
 

ADVERTISEMENT

Post a comment to this story

COMMENTS POLICY
We reserve the right to remove any post that we feel is obscene, profane, vulgar, racist, sexually explicit, abusive, or hateful.
 
You are legally responsible for what you post and your anonymity is not guaranteed.
 
Posts that insult, defame, threaten, harass or abuse other readers or people mentioned in Indiana Lawyer editorial content are also subject to removal. Please respect the privacy of individuals and refrain from posting personal information.
 
No solicitations, spamming or advertisements are allowed. Readers may post links to other informational websites that are relevant to the topic at hand, but please do not link to objectionable material.
 
We may remove messages that are unrelated to the topic, encourage illegal activity, use all capital letters or are unreadable.
 

Messages that are flagged by readers as objectionable will be reviewed and may or may not be removed. Please do not flag a post simply because you disagree with it.

Sponsored by
ADVERTISEMENT
Subscribe to Indiana Lawyer
  1. Been there 4 months with 1 paycheck what can i do

  2. our hoa has not communicated any thing that takes place in their "executive meetings" not executive session. They make decisions in these meetings, do not have an agenda, do not notify association memebers and do not keep general meetings minutes. They do not communicate info of any kind to the member, except annual meeting, nobody attends or votes because they think the board is self serving. They keep a deposit fee from club house rental for inspection after someone uses it, there is no inspection I know becausee I rented it, they did not disclose to members that board memebers would be keeping this money, I know it is only 10 dollars but still it is not their money, they hire from within the board for paid positions, no advertising and no request for bids from anyone else, I atteended last annual meeting, went into executive session to elect officers in that session the president brought up the motion to give the secretary a raise of course they all agreed they hired her in, then the minutes stated that a diffeerent board member motioned to give this raise. This board is very clickish and has done things anyway they pleased for over 5 years, what recourse to members have to make changes in the boards conduct

  3. Where may I find an attorney working Pro Bono? Many issues with divorce, my Disability, distribution of IRA's, property, money's and pressured into agreement by my attorney. Leaving me far less than 5% of all after 15 years of marriage. No money to appeal, disabled living on disability income. Attorney's decision brought forward to judge, no evidence ever to finalize divorce. Just 2 weeks ago. Please help.

  4. For the record no one could answer the equal protection / substantive due process challenge I issued in the first post below. The lawless and accountable only to power bureaucrats never did either. All who interface with the Indiana law examiners or JLAP be warned.

  5. Hi there I really need help with getting my old divorce case back into court - I am still paying support on a 24 year old who has not been in school since age 16 - now living independent. My visitation with my 14 year old has never been modified; however, when convenient for her I can have him... I am paying past balance from over due support, yet earn several thousand dollars less. I would contact my original attorney but he basically molest me multiple times in Indy when I would visit.. Todd Woodmansee - I had just came out and had know idea what to do... I have heard he no longer practices. Please help1

ADVERTISEMENT