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Posted on: May 15, 2020

Adoption: Let's Not Forget to Think Outside the Box

By Travis Van Winkle, Law Office of Travis Van Winkle

For most people, the word "adoption" conjures up one of a few common scenarios. The couple, unable to conceive, who turns to adoption to create a family; the stepparent who has literally stepped in and become a parent; or the couple who wants to adopt a child despite their ability to conceive. A recent discussion with a colleague reminded me of the need for practitioners to continue to think outside of traditional adoption boxes. It also reminded me of the need to draw the attention of the bar to the non-traditional boxes which have already been established by our Court of Appeals.  

In In re the Adoption of M.M.G.C., 785 N.E.2d 267 (Ind.App.2003), Indiana first recognized the right of a a same sex unmarried partner to adopt the child of her partner. The court, in that case, relied on the stepparent exception to the divesting provisions of the adoption statutes. Despite the partners being unmarried, the court focused on the fact that they were living with the child in the same household and functioning as a family unit. In In re the Adoption of K.S.P., 804 N.E.2d 1253 (Ind.App.2004), Indiana again held that a domestic partner could adopt her partner’s child without terminating the mother’s rights. The court noted that to deny children of same sex partners, as a class, the security of a legally recognized relationship with their second parent served no legitimate state interest.  

The Indiana Court of Appeals, in In Re Infant Girl W, 845 N.E.2d 229 (Ind.App. 2006), held that any unmarried couple, regardless of gender or sexual orientation, could adopt jointly. It noted the requirement for a married couple to jointly adopt stemmed from the legal obligations of married persons to one another and found this was not intended, by the legislature, to be a preclusion for unmarried persons to adopt jointly. The focus, once again, was on the family unit and the benefit to children in having a legally recognized family.

Indiana recognized the importance of two people, who were not in an intimate relationship, but working together to raise a child in In re the Adoption of A.M., 930 N.E.2d 613 (Ind.App. 2010). The maternal grandfather played a significant role in the upbringing of his grandson. They spent multiple days per week together. The grandfather helped with homework, kept the child overnight most weekends and took the child to athletic/scouting events. The grandfather sought to adopt the child with the mother’s consent. The trial court declined to approve the petition as to do so would divest the mother of her legal rights. The Indiana Court of Appeals found grandfather and mother were functioning as a family unit despite not living under the same roof. While this was certainly a less than traditional family structure, they were no less a family in the eyes of the court.  

The Court of Appeals, in In re the Adoption of J.T.A., 988 N.E.2d 1250 (Ind.App.2013), held that the fiancé of the biological mother was able to adopt her child without terminating her parental rights. While the parties were engaged, the court did not rely on a promise of marriage in reversing the trial court. Instead, the court focused on how the parties were working together as a family which resulted in the upbringing of a happy/healthy child.  

I have had the privilege of helping a grandmother adopt her grandson via a same sex second parent adoption. This case allowed the mother’s rights to remain intact while giving legal recognition to the realities of how these women were working together as equals for the child’s benefit. The focus here was on mother and grandmother working together to raise a little boy they both considered to be their child.  

Our courts have routinely focused on the benefits to children in having a legal reality extended to their family. In a doing so, they have recognized the importance of family regardless of how unconventional it might look to an outsider. The progress made via these cases required lawyers who were not afraid to think unconventionally. As we continue to see what constitutes a family change, we must not forget to strive for the law to legally recognize families even when they do not fit into the traditional adoptive boxes. 

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