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November 10, 2013

Mother says custody dispute isn't over gay rights

SOUTH BEND, Ind. — The mother of a 5-year-old boy who is at the center of a high-profile custody battle says her focus is on doing what is right for her son, not setting legal precedent.

"I know that this looks like I'm fighting against gay rights, but I'm not," Nicole Jasinski told the South Bend Tribune in a story published Sunday. "It's about my son and what's best for him, and what's going to protect him in the long run."

The case has drawn statewide attention because it led the Indiana Court of Appeals on Oct. 31 to ask the Legislature to update state laws to address custody issues regarding children of same-sex and other non-traditional families. Attorneys say the case could pave the way for future same-sex parenting legislation in Indiana, where politicians are taking sides over whether a gay marriage ban should be written into the state constitution.

Because Indiana law bars same-sex marriage, Jacinski and Amber Carpenter were united in a civil ceremony. Jasinski became pregnant with donor sperm, and the two women and the boy lived as a family in Elkhart, with the boy calling Jasinski "mama" and Carpenter "mommy," even though Carpenter never formally adopted him, according to court documents.

After Jasinski took full custody when the couple split when he was 2, Carpenter filed for joint custody and asked for visitation rights in Elkhart Superior Court. Judge Stephen Bowers denied the petition, stating Indiana law is not clear on the rights and obligations of same-sex partners who had a child together but have not gone through the adoption process.

Carpenter's attorney, Lesa Duvall, said Carpenter considers the boy hers.

"He's her son and she's his mommy," she said.

Carpenter declined a request for an interview by the Tribune. She could not be reached by The Associated Press because her telephone number was not listed.

In a plea to the Indiana Court of Appeals, Carpenter argued she has acted as a parent in the boy's life and it is in the child's best interest for that relationship to continue. But Jasinski argued that Carpenter has no legal standing for custody under Indiana laws.

The appeals court ruled that Carpenter does not have legal standing to ask for joint custody, but it said she could ask for visitation. The appeals court instructed the lower court to consider the request under standards involving a former stepparent or a grandparent.

"Before this case, if you were not parent, stepparent or grandparent, you did not have standing to ask for visitation," Amy Griner, Jasinski's attorney, said. "Now, after this case, they have extended that right to same-sex partners."

The parties could appeal the decision to the Supreme Court, but both said they don't plan to do so, and will argue the issue of whether visitation is best for the child in Elkhart Superior Court.

State Sen. John Broden, D-South Bend, said he wouldn't be surprised if the issue comes up during the upcoming legislative session.

"Where the judicial branch does oftentimes ask us to frankly take a look at something, we often do so," he said.

 

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