Family Law Tip of the Week: Same-Sex Couples Expecting

Welcome to Tip of the Week! Judicial officers will offer a tip each week for members of the Family Law Section. Feel free to send suggestions to Mag. Kim Mattingly at kimberly.mattingly@indy.gov.

By Mag. Kimberly Dean Mattingly, Marion Superior Court

It is actually more a discussion topic than a tip, I have to admit. One of my DR colleagues encountered this issue this week in a final hearing: same-sex female couple; one of them was noticeably pregnant. For a hetero couple, most of us in Marion County refuse to grant the divorce until paternity has been established in another man, or Husband has been excluded as the father via DNA. (I’ve considered allowing a putative father to testify to his intent to establish paternity, but since the statute says there are only two ways to establish paternity and testimony of putative father in his child's mother's divorce is not one of them, I’m not comfortable letting husband off the hook until we truly have our claws in putative father for paternity.)
 
Our in-house discussion led to these issues: what is to be done when a same-sex couple is expecting? To my paternity colleagues: are we establishing maternity for nonmarried, same-sex female couples yet, or is the non-birthing spouse still required to adopt? What about two men who are in the midst of adoption and decide to divorce? Indiana does not recognize surrogacy; are gay men going out of state to pursue this option? If so, how is the birth certificate issued? What if the non-pregnant female did not approve of her wife’s pregnancy or participate in the procedure or planning? We allow a hetero husband to challenge paternity, so shouldn’t we allow a lesbian wife to challenge parenthood as well? Has anyone litigated this yet? Looked to other states for guidance? If so, please share!

Stay tuned for a new tip next week!

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