INDIANAPOLIS The state attorney general’s office is asking the Indiana Supreme Court to overturn a ruling allowing unmarried couples, including those of the same sex, to adopt children through a joint petition that gives both partners equal custody.
Two trial judges have disagreed on the issue, and the Indiana Court of Appeals voted 2-1 last month in ruling that same-sex couples could adopt by joint petition. Attorney General Steve Carter noted the conflict among judges in a news release Monday.
“Given such a division thus far among five judges at two different levels of our courts; and given the fact that the state Supreme Court has not yet had the opportunity to interpret the most recent relevant enactment of the Legislature, I find it proper to invite the High Court to be heard in this matter,” Carter said.
Carter’s office wants the court to vacate the Court of Appeals’ ruling. Carter said the issue is whether Indiana law has changed to permit unmarried couples to adopt through a joint petition.
If the Supreme Court chooses to hear the case, it will likely extend the resolution of this particular case beyond the next legislative session, he said.
“Such action by the court, though, could provide sound guidance for any later legislative discussion regarding this subject matter,” Carter said.
The case involves a Morgan County lesbian couple whose attempt to adopt an infant girl was approved by a judge in one county but denied by a judge in another.
Barbara Baird, an attorney for the couple Becki Hamilton and Kim Brennan said she had not seen Carter’s appeal.
But, she said, “I think the Court of Appeals ruling will be upheld and should be upheld because it was rightly decided and did clarify the law, and no further clarification is needed by the Supreme Court.”
The appeals court overturned a ruling by Morgan Circuit Court Judge Matthew Hanson, who opposed the couple’s joint petition because he said Indiana law limits adoption to married couples and individuals. State law prohibits same-sex marriages.
The majority appeals court ruling said state law requires married persons seeking adoption to petition jointly.
“But it does not follow that in placing this requirement upon a married couple, the legislature was simultaneously denying an unmarried couple the right to petition jointly,” the ruling said.
The Morgan County Office of Family and Children placed the child with Hamilton and Brennan in 2004 when the girl was two days old and asked the couple to consider adoption. Hamilton and Brennan had lived together for more than a decade, and the state qualified them as foster parents.
Hanson was conducting hearings to terminate the parental rights of the girl’s birth mother when he learned that Hamilton and Brennan were living together and not married. He ordered the Office of Family of Children to look for a married couple to adopt the baby instead.
The couple turned to adjacent Marion County in their bid to keep the girl, and a probate court judge granted the adoption, saying it was in the child’s best interest to be with the couple.
Hamilton and Brennan have retained custody of the child during the legal dispute.
The Indiana Department of Child Services, which oversees the Morgan County office, argued that only married couples can file jointly for adoption, and unmarried couples and individuals must apply as single parents.
Judge Edward Najam, who dissented in the appeals court ruling, said the General Assembly amended a law last year to say that adoption by a second parent divests the previous adoptive parent of his or her parental rights if the two are not married.
Najam said that precluded sequential adoptions by an unmarried couple, and, “It must follow that the legislature also intended to preclude unmarried couples from filing joint petitions to adopt.”
This article appeared in the Dallas Voice print edition, May 19, 2006.