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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. in a lawyer discipline case Judge Brown, now removed, was presiding over a hearing about a lawyer accused of the supposedly heinous ethical violation of saying the words "Illegal immigrant." (IN re Barker) http://www.in.gov/judiciary/files/order-discipline-2013-55S00-1008-DI-429.pdf .... I wonder if when we compare the egregious violations of due process by Judge Brown, to her chiding of another lawyer for politically incorrectness, if there are any conclusions to be drawn about what kind of person, what kind of judge, what kind of apparatchik, is busy implementing the agenda of political correctness and making off-limits legit advocacy about an adverse party in a suit whose illegal alien status is relevant? I am just asking the question, the reader can make own conclsuion. Oh wait-- did I use the wrong adjective-- let me rephrase that, um undocumented alien?

  2. of course the bigger questions of whether or not the people want to pay for ANY bussing is off limits, due to the Supreme Court protecting the people from DEMOCRACY. Several decades hence from desegregation and bussing plans and we STILL need to be taking all this taxpayer money to combat mostly-imagined "discrimination" in the most obviously failed social program of the postwar period.

  3. You can put your photos anywhere you like... When someone steals it they know it doesn't belong to them. And, a man getting a divorce is automatically not a nice guy...? That's ridiculous. Since when is need of money a conflict of interest? That would mean that no one should have a job unless they are already financially solvent without a job... A photographer is also under no obligation to use a watermark (again, people know when a photo doesn't belong to them) or provide contact information. Hey, he didn't make it easy for me to pay him so I'll just take it! Well heck, might as well walk out of the grocery store with a cart full of food because the lines are too long and you don't find that convenient. "Only in Indiana." Oh, now you're passing judgement on an entire state... What state do you live in? I need to characterize everyone in your state as ignorant and opinionated. And the final bit of ignorance; assuming a photo anyone would want is lucky and then how much does your camera have to cost to make it a good photo, in your obviously relevant opinion?

  4. Seventh Circuit Court Judge Diane Wood has stated in “The Rule of Law in Times of Stress” (2003), “that neither laws nor the procedures used to create or implement them should be secret; and . . . the laws must not be arbitrary.” According to the American Bar Association, Wood’s quote drives home this point: The rule of law also requires that people can expect predictable results from the legal system; this is what Judge Wood implies when she says that “the laws must not be arbitrary.” Predictable results mean that people who act in the same way can expect the law to treat them in the same way. If similar actions do not produce similar legal outcomes, people cannot use the law to guide their actions, and a “rule of law” does not exist.

  5. Linda, I sure hope you are not seeking a law license, for such eighteenth century sentiments could result in your denial in some jurisdictions minting attorneys for our tolerant and inclusive profession.

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