How would a constitutional ban affect child custody?
Even as a stand-alone issue, whether to put the gay marriage ban into the state constitution instead of just leaving it in the Indiana code is a complicated question requiring Hoosiers to decide how ethical and moral sensibilities can be addressed by the legal system. But there are subsidiary issues that further complicate the matter, some of which are known and some of which are not.
One of the known ones is highlighted in a high-profile custody battle from Elkhart: What about the children?
Nicole Jasinski and Amber Carpenter were united in a civil ceremony. Jasinski became pregnant with donor sperm, and the two women and boy (now 5) lived together as a family. The couple split and Jasinski took full custody. Carpenter sued, asking for joint custody and visitation rights. A court denied the petition. Indiana law is not clear, Elkhart Superior Court Judge Stephen Bowers ruled, on the rights and obligations of same-sex parents who had a child together but have not gone through the adoption process. Carpenter never sought to adopt the boy.
The Indiana Court of Appeals has now ruled that Carpenter does not have legal standing to ask for joint custody, but she can ask for joint custody. It instructed the lower court to consider the request under standards involving a former stepparent or a grandparent, the only relatives besides parents now able to even ask for visitation.
And the appeals court also had a request of the General Assembly: Update state laws to address custody issues regarding children of same-sex and other nontraditional families. It’s a more than reasonable request. As with many social issues, the law has not kept pace with real-world developments, and people are left without the clear signs only the law can give.
And while they’re considering the changes, legislators might ponder how putting the gay marriage ban into the constitution would affect those going through such custody issues. The proposed amendment would also ban Indiana from recognizing “a legal status identical or substantially similar to that of marriage for unmarried individuals,” it would also affect heterosexual couples. How would that affect their custody battles?
Of all the reasons given for opposing the constitutional ban on gay marriage, the most convincing is that something so specific does not belong there. A constitution is best suited for broad principles that will not change over time. The best place for an issue on which public opinion evolves every day is in the law. If there are any unintended consequences, the law can be easily and quickly changed. The constitution cannot.