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COA rejects argument that children adopted by unmarried uncle were ‘born out of wedlock’

March 29, 2019

The grandparents of two children adopted by their unmarried uncle do not have standing to seek visitation, the Indiana Court of Appeals wrote Friday in an opinion rejecting the argument that the children were “born out of wedlock.”

Paul Bobby Hernandez adopted E.H. and I.H. after the Marion Circuit Court terminated the parental rights of their biological parents in January 2017. Hernandez, the children’s biological maternal uncle, and his significant other adopted the children together but are not married.

Then in March 2018, Alvina Casillas and Paul Hernandez, the children’s biological maternal grandparents, filed petitions for visitation as paternal grandparents, which Paul Bobby moved to dismiss, arguing the grandparents lacked standing to petition for visitation because they did not meet the statutory requirements.

But because Paul Bobby is not married, the trial court ruled that the children were technically “born” out of wedlock and that Casillas and Paul did, in fact, have standing to seek grandparent visitation. Paul Bobby then appealed, but the grandparents argued they have standing to seek visitation because paternity was established in Paul Bobby through the adoption proceeding, and because E.H. and I.H. were “born out of wedlock.”

The Indiana Court of Appeals, however, found that argument to be nonsensical, and one that would produce an absurd result unintended by the Indiana General Assembly in passing the Grandparent Visitation Act.

“Specifically, Casillas and (Paul) Hernandez’ theory is an attempt to circumvent the strict interpretation of the statute,” Judge Rudolph Pyle wrote for the panel. “There is clearly a difference between being ‘born out of wedlock’ and being adopted by an unmarried person. A decree of adoption ‘severs forever every part of the parent and child relationship; severs the child entirely from its own family tree and engrafts it upon that of another. For all legal and practical purposes a child is the same as dead to its parents.’”

Thus, finding that adoption is not the same as birth, the appellate panel found Casillas and Paul did not have standing to seek grandparent visitation and that the trial court erred in concluding otherwise. It thus reversed the trial court’s decision in In the Matter of the Paternity of E.H.; Paul Bobby Hernandez v. Alvina Casillas and Paul Hernandez, 18A-JP -2137.

The appellate court also noted the grandparents improperly sought court intervention in a dispute with their own child, Paul Bobby, which was an unwarranted encroachment on his right to raise E.H. and I.H. as he sees fit.

“The legislature simply did not contemplate such a situation when enacting the GVA,” the appellate panel wrote.

Lastly, the appellate court pointed out that E.H. and I.H. do not even meet the statutory definition of “child” under Indiana Code § 31-9-2-1 for the purposes of I.C. § 31-17, which defines “child” as a “child . . . of both parties to the marriage,” “[c]hildren born out of wedlock to the parties”, and “[c]hildren born or adopted during the marriage of the parties.”

“Here, the children were adopted, but the adoption did not occur during a marriage,” Pyle concluded. “This statutory definition simply does not include children adopted by single, unmarried persons.”

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