Unmarried
couples, including those of the same sex, can adopt a child
through a joint petition that gives both partners equal
custody simultaneously, the Indiana court of appeals
in Indianapolis ruled Thursday. The 2-1
ruling involved a lesbian couple from Morgan County
whose attempt to adopt an infant girl was approved by a
judge in one county but denied by a judge in another.
The decision overturned a ruling by Morgan
County circuit court judge Matthew Hanson, who opposed
the joint petition of Becki Hamilton and Kim Brennan
because he said Indiana law limits adoption to married
couples and individuals. State law prohibits same-sex marriages.
The appeals court 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 2 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 and
Children to look for a married couple to adopt the
baby instead.
The appeals court noted that his decision had
nothing to do with Hamilton and Brennan as a same-sex
couple but instead had to do with their being
unmarried. 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.
The couple petitioned to release the girl from
her status as a ward of the Morgan County Office of
Family and Children, but Hanson rejected it and
ordered that she be moved to another couple's custody.
Hamilton and Brennan have retained custody of the
child during their appeal.
The Indiana Department of Child Services, which
oversees the Morgan County office, argued that only
married couples can file jointly for adoption and that
unmarried couples and individuals must apply as single parents.
Patricia Logue, an attorney for gay rights
advocacy group Lambda Legal, had argued that it did
not make sense to have a child who was doing very well
with one family to be uprooted and placed with another
family simply because they were married.
Logue said she was pleased with the ruling.
"This allows, for example, kids in foster care to be
placed with a lesbian couple and adopted by both those
parents right away with benefits of giving security to
the child right away," she said Thursday.
Judge Edward Najam, who dissented in Thursday's
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 that
"it must follow that the legislature also intended to
preclude unmarried couples from filing joint petitions to adopt."
The majority opinion, written by Judge John
Baker, disagreed. "The simple truth...is that the
legislature has not amended the Adoption Act to
affect, in any way, the ability of an unmarried couple to
file a joint petition to adopt. The statute is silent
on that."
Logue said some states allow same-sex couples to
file jointly for adoption.
The attorney general's office, which defended
the state in the appeal, was reviewing the ruling and
had no immediate comment, said spokeswoman Staci
Schneider. (AP)
