Court: Unmarried Couples of Same Sex Can Adopt in Indiana

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 ruled Thursday.

INDIANAPOLIS (AP) — 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 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 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 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 appeals court noted that his decision had nothing to do with Hamilton and Brennan as a same-sex couple but with 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 unmarried couples and individuals must apply as single parents.

Patricia Logue, an attorney for Lambda Legal Defense and Education Fund — a national organization that represents gay people and others — 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 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.”

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,” Baker wrote.

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.

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