State Laws and Legislation

Indiana Custody and Visitation Law

Indiana courts typically will not consider a parent’s sexual orientation in custody and visitation determinations unless it is shown to adversely affect or harm the children. There are no published cases dealing with transgender parents. Courts have ruled in support of same-sex co-parents.

Custody and Visitation for Gay, Lesbian and Bisexual Parents

Indiana courts typically will not consider a parent’s sexual orientation in custody and visitation determinations unless it is shown to adversely affect or harm the children.

Indiana law states: “The court shall determine custody and enter a custody order in accordance with the best interests of the child. In determining the best interests of the child, there is no presumption favoring either parent. The court shall consider all relevant factors, including the following: (1) The age and sex of the child; (2) The wishes of the child’s parent or parents; (3) The wishes of the child, with more consideration given to the child’s wishes if the child is at least 14 years of age; (4) The interaction and interrelationship of the child with the child’s parent or parents, the child’s sibling and any other person who may significantly affect the child’s best interests; (5) The child’s adjustment to the child’s home, school and community; (6) The mental and physical health of all individuals involved; (7) Evidence of a pattern of domestic or family violence by either parent; (8) Evidence that the child has been cared for by a de facto custodian. …

“A parent not granted custody of the child is entitled to reasonable visitation rights unless the court finds, after a hearing, that visitation by the non-custodial parent might endanger the child’s physical health or significantly impair the child’s emotional development.”

In one 2002 case, Downey v. Muffley, parents were awarded joint legal and physical custody of their two children. The mother, Downey, began living with a same-sex partner. She filed a petition to relocate with the children to Florida and, in response, the father, Muffley, filed a petition to modify custody. At some point Downey filed an amended notice to relocate to Indianapolis. The trial court denied Muffley’s motion to modify custody and granted Downey’s request to move. The trial court also, however, placed a restriction on Downey’s custody — she could not cohabitate with a same-sex partner while living with her children. Downey appealed this portion of the order. The appeals court reversed this restriction, stating that: “Without evidence of behavior having an adverse effect upon the children, we find the trial court had no basis upon which to condition Mother’s custody of her sons. We therefore find the trial court abused its discretion, and reverse that portion of the custody order which imposes conditions upon the award of custody to Mother. … Visitation and custody determinations must be determined with respect to the best interests of the children, not the sexual preferences of the parents.”

In a 1999 case, Pryor v. Pryor, the appeals court, when remanding the case back to the trial court, reminded the trial court that “sexual orientation as a single parental characteristic is not sufficient to render that parent unfit to retain physical custody of a child.”

In one 1998 case, Knotts v. Knotts, the father was awarded custody of the children. The mother appealed, arguing that the trial court punished her because of her sexual orientation. The appeals court sided with the trial court’s finding that the placement of the children with the father was in the best interests of the children, regardless of the mother’s sexual orientation, and even if this factor was considered, evidence presented at trial demonstrated that the mother’s current relationship with another woman impacted negatively upon her oldest child.

In another 1998 case, Marlow v. Marlow, the father was granted visitation with the condition that during periods of overnight visitation he could not have any non-related person in the house overnight when the children were present and that he could not include the children in “any social, religious or educational functions sponsored by or which otherwise promote the homosexual lifestyle.” The appeals court found that the trial court had a rational basis for placing these restrictions: “After visits with Bryn, the boys exhibited behavior consistent with emotional distress.” In sum, the appeals court confirmed that “the trial court’s foremost consideration in this case was the children’s best interests, not Bryn’s homosexuality.”

In a 1994 case, Teegarden v. Teegarden, the father, Albert, was awarded custody of the two children and the mother, Twila, enjoyed regular and unrestricted visitation. When Albert died, however, his new wife, Samantha, petitioned the court for custody. The trial court rejected this petition and awarded custody to Twila. It placed two restrictions on this custody, however: first, that Twila could not live with a woman with whom she was having an intimate relationship, and second, that she could not engage in same-sex activity in front of the children. Twila appealed these conditions. The court reversed these conditions, affirming that “without evidence of behavior having an adverse effect upon the children, we find the trial court had no basis upon which to condition Mother’s custody of her sons.”

In a 1992 case, Pennington v. Pennington, the trial court placed a restriction on the father’s visitation rights: “Bob’s adult male friend may not be present during overnight visitations.” The appeals court upheld this restriction, finding that the trial court found that Bob’s adult male friend would be injurious to the child’s emotional health. The appeals court went on to state: “It is not puritanical or unreasonable to attempt to shield a child of tender age, like Nathan, from the sexual practices of the visiting parent, whether those practices are homosexual, as Lisa [the mother] alleges, or heterosexual. Such protection is a sound practice designed to foster the child’s emotional well being, and is widely employed.”

In one 1981 case, D.H. v. J.H., the father was awarded custody of the children and the mother appealed, arguing the court improperly used her sexual orientation in its decision. The appeals court ruled that “evidence of wife’s homosexual conduct in this case was relevant and admissible [at the trial court].” The appellate court went on to state: “the proper rule to be that homosexuality standing alone without evidence of any adverse effect upon the welfare of the child does not render the homosexual parent unfit as a matter of law to have custody of the child.”

Custody and Visitation for Transgender Parents

There are no published cases dealing with transgender parents. State law, however, does not seem to permit the consideration of factors that do not affect the best interests of the child to be used in custody and visitation determinations.

Custody and Visitation for Same-Sex Co-Parents

In a 2005 case, the Indiana Supreme Court vacated an appellate decision that found that a lesbian’s adoption of her former same-sex partner’s children was valid. As such and even though the relationship had ended, she had “the responsibility to remain in [the children’s] lives — even if her only contribution is financial.”

In this case, Dawn brought an action against her former partner and the biological mother of a child to establish Dawn’s co-parentage with the child. Stephanie was impregnated through artificial insemination and Dawn’s brother was the semen donor. A.B. was born to the couple in 1999. The relationship ended in 2002, but Dawn continued to care for the child, make regular visits and provide financial support until Stephanie terminated all visits and refused the financial support. Dawn commenced this action to establish co-parentage of A.B. The appellate court held: “when two women involved in a domestic relationship agree to bear and raise a child together by artificial insemination of one of the partners with donor insemination, both women are the legal parents of the resulting child.” Although the state Supreme Court vacated the appellate court decision, the opinion states that it was up to the trial court judge to determine whether Dawn has parental rights and responsibilities. This case will return to trial for this determination.

Citations: IND. CODE ANN. §31-17-2-8; IND. CODE ANN. § 31-17-4-1; Downey v. Muffley, 767 N.E.2d 1014 (Ind. Ct. App. 2002); Pryor v. Pryor, 709 N.E.2d 374 (Ind. Ct. App. 1999); Knotts v. Knotts, 693 N.E.2d 962 (Ind. Ct. App. 1998); Marlow v. Marlow, 702 N.E.2d 733 (Ind. Ct. App. 1998); Teegarden v. Teegarden, 642 N.E.2d 1007 (Ind. Ct. App. 1994); Pennington v. Pennington, 596 N.E. 2d 305 (Ind. Ct. App. 1992); D.H. v. J.H., 418 N.E. 2d 286 (Ind. Ct. App 1981); Mariga v. Flint, 822 N.E.2d 620 (Ind. Ct. App. 2005); In Re Parentage of A.B.,818 N.E.2d 126 (Ind. Ct. App. 2004); 2005 Ind. LEXIS 1035 (Ind. 2005).