Judges uphold denying visitation to ex-partner

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.