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COA affirms woman in same-sex relationship legal parent of child

August 15, 2016

The Indiana Court of Appeals on Monday affirmed a trial court’s conclusion that a lesbian couple who entered into a registered domestic partnership in California should be treated like married spouses. As such, the judges affirmed the award of joint legal custody and parenting time to the non-biological parent after the couple broke up.

Kristy Gardenour and Denise Bondelie entered into the formal registered domestic partnership in California in 2006. In California, registered domestic partners share the same rights granted to and obligations imposed upon spouses. They then moved to Indiana, where they decided to have a child. They entered into an agreement with a friend to donate sperm, and Gardenour was artificially inseminated.

Gardenour intended to give the baby boy Bondelie’s last name, but the hospital did not allow the boy to use it on his birth certificate or records. Two years later, Gardenour filed a petition to terminate the RDP. At this point, Bondelie had moved back to California to care for her ailing father, but would visit with her son when she could and do video chats.

The trial court recognized the RDP as a valid contract and that the two are bound by California Family Law Code. In Indiana, Hendricks Superior Judge Stephanie LeMay-Luken noted spouses involved with artificial insemination are entitled to the same rights and obligations of a non-biological parent who adopted the child. The judge held Bondelie is entitled to continue her parent-like relationship with the boy and will have joint legal custody, visitation and must pay child support.

Gardenour appealed, challenging the court’s conclusion that the RDP constitutes a valid contract that says under California law, the couple shared the same rights and obligations as spouses share. Judge Margret Robb pointed out the law governing RDPs at the time the two entered into the agreement said that those rights and obligations are the same as those imposed upon spouses. Even though the declaration Gardenour signed did not spell that out, the COA affirmed that the two contractually entered into the RDP and agreed to be treated as spouses.

The COA also found Gardenour’s argument that the trial court erred because same-sex marriage is contrary to Indiana policy to be outdated after Baskin v. Bogan, 766 F.3d 648, 657 (7th Circ.) and Obergefell v. Hodges, 135 S.Ct. 2584, 2608 (2015).

The judges also rejected her claim that an agreement between domestic partners to co-parent a child born by artificial insemination is not enforceable. The couple’s RDP agreement established a spouse relationship recognizable under comity, Robb wrote, and the two women knowingly and voluntarily agreed to co-parent a child by artificial insemination.

Bondelie is C.G.’s legal parent and is entitled to joint legal custody and parenting time and must pay child support, the COA affirmed.

The case is In re the Marriage of: Kristy Gardenour v. Denise Bondelie, 32A01-1601-DR-82.
 

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