Sunday, July 26, 2009

Gay/Lesbian Issues in Indiana Family Law

The Ohio Law Blog's Are Gay and Lesbian Couples Disadvantaged When Seeking Custody in Ohio? lead me to consider what is the situation in Indiana. I think we are somewhat different from Ohio. Indiana appellate courts have disdained finding a parent's homosexuality in and of itself as proof that the parent is not in the child's best interests.

Further, I suggest reading the Indiana Court of Appeals decision in In the Matter of the Visitation of C.L.H.; B.L.H. v. G.L.H. and B.J.H. I have written on this case here. I think my liberal and gay/lesbian readers will be appalled at the facts just as my conservative readers might be appalled at the appellate court denying grandparent visitation.

I do not have all the facts of the Ohio case, so I am left to speculate. I would say under Indiana that whatever collateral effects existed because of the homosexual relationship had best lead to a change in custody when the parents were not in a homosexual relationship.

Speaking of In the Matter of the Visitation of C.L.H.; B.L.H. v. G.L.H. and B.J.H., I find that the case garnered some attention outside of Indiana. Professor Julie Shapiro has three posts on her Related Topics Blog: Lesbian Mother and Grandparent Visitation in Indiana: Who is In and Who is Out? and Lesbian Mother/Grandparent Visitation, II.

Professor Shapiro raises some interesting questions in her second post. If those reading this blog on a regular basis remember my articles on third party custody, most of those questions are answered but Professor Shapiro does raise one question that I find interesting this in Part II:

And finally, once can consider the status of KW. By the time the case came to trial, KW might have been in a position to invoke the de facto parent doctrine. (Again, I say this not with regard particularly to the law of Indiana, about which I do not have special expertise, but as an academic thinking about family law generally.) Were KW and BLH to separate, I might well argue that each is a parent to CLH and hence entitled to equal status in determining the custody of the child.
(As for any privilege the father has as biological father is mitigated somewhat in Indiana for the difference in statutes regulating visitation in a paternity case from that in a divorce case. But Ms. Shapiro's question gives an insight into why there is such a difference. For what I have written see Parenting time -where paternity and divorces meet.)

She continues her thoughts about the case into a third post, Lesbian Mother/Grandparent Visitation, III: Ruminations. Wherein she raises this hypothetical:

So I consider this hypothetical. The initial facts match those of the actual case: unmarried woman become pregnant, the man with whom she had sex has no involvment, her pregnancy is difficult, her parents support her and then the child through the first five years of the child’s life. At this point, the mother of the child embarks on a new relationship, and my hypothetical diverges from the real case. Suppose the mother’s new relationship is with a man who is a member of a small racist society. He persuades the mother of the correctness of his view and after a time she decides that she’d like him to play a parent-like role in the child’s life, inculcating the child with his racist views. The grandparents, who are far more supportive of diversity, object and seek visitation with their grandchild.

The facts here are different. But is the case legally distinguishable? Could a court reach a different conclusion consistent with the Indiana case? Do I want them to? Can I argue that in both cases the more tolerant influence should prevail, because it is better for the child and/or better for the world? I think to be consistent with my general theme in this blog, I need instead to focus on what the relationship between the various parties and the child actually is.

However, I do not see one key fact in this hypothetical: that mother's racism caused grandmother's stroke. Yes, grandmother made that comment to the lesbian mother. Put those together and I am not so sure that there is not the same stridency in the relationships. I think any time that the grandparents voice a strident dislike of the parent to the child, the grandparents have a huge gaping hole in their case.

I am also thinking that there is a difference between lesbianism and racism for the child. After all, the court focuses on the best interests of the child and not the interests of the adults. I am wholly unaware of any study showing that gay/lesbian parents affect the child's socialization. I think being raised by a racist group will have a more difficult time not being shown as a negative influence on a child's socialization. However, I think I am now verging into third party custody issues.

Also, Leonard Link reports on the case in Indiana Appeals Court Rules for Lesbian Mom on Grandparent Visitation Claim.

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