                                                                        FILED
                                                                   Aug 15 2016, 8:19 am

                                                                        CLERK
                                                                    Indiana Supreme Court
                                                                       Court of Appeals
                                                                         and Tax Court




ATTORNEY FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
Jaimie L. Cairns                                          Sean C. Lemieux
Cairns & Rabiola, LLP                                     Lemieux Law
Indianapolis, Indiana                                     Indianapolis, Indiana

                                                          Vanessa Lopez Aguilera
                                                          Lopez Law Office, PC
                                                          Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

In re the Marriage of                                     August 15, 2016
Kristy Gardenour,                                         Court of Appeals Case No.
                                                          32A01-1601-DR-82
Appellant-Petitioner,
                                                          Appeal from the Hendricks
        v.                                                Superior Court
                                                          The Honorable Stephanie LeMay-
Denise Bondelie,                                          Luken, Judge
                                                          Trial Court Cause No.
Appellee-Respondent.
                                                          32D05-1503-DR-151



Robb, Judge.




Court of Appeals of Indiana | Opinion 32A01-1601-DR-82 | August 15, 2016                    Page 1 of 22
                                Case Summary and Issue
[1]   In 2006, Kristy Gardenour and Denise Bondelie entered into a formal registered

      domestic partnership (“RDP”) in accordance with California law. In

      California, registered domestic partners share the same rights granted to and

      obligations imposed upon spouses. After moving to Indiana, Kristy and Denise

      agreed to co-parent a child. In 2012, Kristy was artificially inseminated, and

      the following year, gave birth to a son, C.G. In early 2015, Kristy filed a

      petition seeking to terminate the RDP. The trial court terminated the couple’s

      RDP, awarded Denise joint legal custody of C.G. and parenting time and

      ordered her to pay child support. Kristy now appeals, raising multiple issues,

      which we consolidate and restate as: (1) whether the trial court erred in

      concluding Kristy and Denise intended and agreed to become registered

      domestic partners with equal rights as married couples and further erred in

      determining the couple’s RDP agreement established a spousal relationship, (2)

      whether the trial court erred in concluding Denise is C.G.’s legal parent, and (3)

      whether the trial court abused its discretion in awarding Denise joint legal

      custody and parenting time and ordering her to pay child support. We

      conclude Kristy and Denise intended to enter into a RDP agreement in

      accordance with California law. Pursuant to California law, Kristy’s and

      Denise’s RDP established a relationship virtually identical to marriage, and

      under the principle of comity, we recognize their relationship as a spousal

      relationship. We further conclude Denise is C.G.’s legal parent under Indiana




      Court of Appeals of Indiana | Opinion 32A01-1601-DR-82 | August 15, 2016    Page 2 of 22
      law, and the trial court did not err in awarding Denise joint legal custody and

      parenting time and ordering her to pay child support. We affirm.



                            Facts and Procedural History
[2]   In 2003, Kristy moved from Michigan to California to begin a relationship with

      Denise. In accordance with California law, the couple entered into a RDP

      agreement in 2006. Thereafter, Denise and Kristy moved to Indiana. In 2012,

      the couple agreed to co-parent a child and Kristy was artificially inseminated.

      On May 14, 2013, Kristy gave birth to a son, C.G. After their relationship

      ended in October 2014, Denise returned to California. On March 2, 2015,

      Kristy filed a Petition for Dissolution of Marriage.


[3]   On October 8, 2015, the parties entered into a Partial Mediated Agreed Entry

      settling their property disputes, leaving only the issue of child custody before the

      trial court. On December 15, 2015, the trial court held a final hearing. During

      the hearing, Denise requested joint legal custody and parenting time, including

      regular video contact with C.G. and parenting time when she visited Indiana;

      Kristy requested primary physical and legal custody. The trial court issued the

      following Findings of Fact, Conclusions Thereon & Decree of Termination of

      Domestic Partnership, recognizing the couple’s RDP agreement established a

      spousal relationship, terminating the RDP, awarding Kristy primary physical

      custody of C.G., awarding Denise joint legal custody and parenting time, and

      ordering Denise to pay child support:



      Court of Appeals of Indiana | Opinion 32A01-1601-DR-82 | August 15, 2016   Page 3 of 22
                                        Findings of Fact


                                                ***


        5. On March 6, 2006, Kristy and Denise freely and voluntarily
        entered into a Declaration of Domestic Partnership.
        6. Kristy and Denise filed their Declaration of Domestic
        Partnership with the California Secretary of State, and on March
        13, 2006, they were issued a Certificate of Registration of
        Domestic Partnership uniting them in [a] domestic partnership in
        accordance with the California Family Code.


                                                ***


        8. In entering into their Declaration of Domestic Partnership
        Kristy and Denise understood that they were agreeing to, and
        intended to be bound by, the various rights, protections,
        obligations and responsibilities provided by the California laws
        governing domestic partnerships.
        9. Kristy and Denise are not married.
        10. However, both Kristy and Denise understood and intended
        that by entering into their Declaration of Domestic Partnership
        they would be treated the same as spouses with regard to their
        relationship even though they were not legally married.


                                                ***


        14. In 2012 Kristy and Denise began discussing having a child
        by artificial insemination using a sperm donor.
        15. Both agreed to have a child and Kristy was to be the birth
        parent.
        16. Initially they explored donors through various sperm banks.
        Their goal was to find a donor who looked like Denise so that the
        child would have the physical traits of both Kristy and Denise.

Court of Appeals of Indiana | Opinion 32A01-1601-DR-82 | August 15, 2016   Page 4 of 22
        17. The parties eventually abandoned the idea of using a sperm
        bank for several reasons including the excessive cost.
        18. Kristy discussed their plans with a friend at work who
        volunteered to donate his sperm.
        19. Both Kristy and Denise agreed together to use this friend as
        the sperm donor.
        20. Kristy found a sperm donor agreement online and asked
        Denise to review it. Denise is an attorney though she has not
        practiced law since 2006.
        21. Kristy and Denise together met with the friend/donor at a
        restaurant to review the proposed sperm donor agreement. The
        agreement was acceptable to the friend and subsequent to that
        meeting Kristy and the friend signed the donor agreement before
        a Notary at a bank.
        22. For approximately five (5) months the friend/donor would
        come to Kristy and Denise’s home once or twice each month and
        provide a sperm donation for Kristy’s insemination.
        23. Denise was present for the inseminations.
        24. Kristy became pregnant as a result of the artificial
        inseminations.
        25. After Kristy became pregnant she and Denise together began
        planning for the child’s future.
        26. Denise attended OB/GYN appointments and ultrasounds
        with Kristy during the pregnancy.
        27. Kristy and Denise attended parenting classes together during
        the pregnancy.
        28. During the pregnancy Kristy and Denise planned for the
        baby to carry Denise’s last name.
        29. Kristy discussed the matter with Denise’s father, Bruce
        Bondelie, and sought his support for the baby to carry the
        Bondelie name.


                                                ***


        31. Denise was present when [C.G.] was born.
        32. At [C.G]’s birth Kristy attempted to give him Denise’s last

Court of Appeals of Indiana | Opinion 32A01-1601-DR-82 | August 15, 2016   Page 5 of 22
        name but was not allowed by the hospital to use Bondelie on his
        birth records.
        33. Kristy believed that [C.G.] was Denise’s son as well as hers.
        34. Following [C.G.]’s birth Denise attended doctor’s
        appointments with Kristy and [C.G.]
        35. Denise participated in caring for [C.G.], feeding, changing
        and playing with him.
        36. After [C.G.] was born Kristy asked Denise to change the
        beneficiary of her life insurance to [C.G.] because she considered
        him to be Denise’s son as well and thought he should have the
        benefit of Denise’s life insurance proceeds in the event of her
        death.
        37. Denise’s father also included [C.G.] as a beneficiary of the
        Bondelie family trust.
        38. The parties could not financially afford for Denise to
        complete a second parent adoption of [C.G.] but intended to do
        so when they could afford it.
        39. The parties ended their relationship in July 2014 but
        continued to reside in the same household until October 2014
        when Denise went to California to care for her ailing father.
        40. From October 2014 until April 2015 Denise had regular
        contact with [C.G.] via [video chat] calls on a weekly basis.
        41. Kristy terminated Denise’s contact with [C.G.] in April 2015
        and has refused all of Denise’s requests for [video chat] and in
        person contact since that time.
        42. Denise visited with [C.G.] in person in Indiana in May 2015
        when she returned to retrieve her property.
        43. From the initial pregnancy through [C.G.]’s birth and
        afterward until October 2014, Denise acted in a parental
        capacity.
        44. After the family ceased residing together Denise maintained
        contact with [C.G.] as a non-custodial parent would.
        45. Denise clearly loves [C.G.] Denise and [C.G.] share a bond
        as child and parent.


                                                ***

Court of Appeals of Indiana | Opinion 32A01-1601-DR-82 | August 15, 2016   Page 6 of 22
                                     Conclusions Thereon


                                                ***


         3. In Indiana unmarried domestic partners are free to enter into
         contracts governing their rights and obligations upon
         termination of the domestic partnership and such agreements
         are enforceable. Bright v. Kuehl, 650 N.E.2d 311 (Ind. [Ct.] App.
         1995); Glasgo v. Glasgo, 410 N.E.2d 1325 (Ind. Ct. App. 1980).
         4. The parties’ Declaration of Domestic Partnership at a
         minimum constitutes a valid contract.
         5. The specific terms of their contract, by which the parties
         agreed to be bound, are those established by the California
         Family Law Code.
         6. In other words, by entering into the [RDP] Kristy and Denise
         created a valid, binding and enforceable contract which contract
         incorporates default terms set forth in the California Family Law
         Code.
         7. Kristy and Denise have the same rights, protections and
         benefits, and are subject to the same responsibilities, obligations
         and duties as are granted to or imposed upon spouses. Cal. Fam.
         Code § 297.5(a).
         8. In ending their relationship and dividing their assets and
         debts Kristy and Denise have the same rights, protections and
         benefits, and are subject to the same responsibilities, obligations
         and duties as apply to spouses in a dissolution of marriage. Cal.
         Fam. Code § 299(d).
         9. Just as spouses are permitted and encouraged to do in a
         dissolution of marriage in Indiana, the parties entered into a
         mediated settlement agreement, previously approved by this
         Court, settling all property issues between them.
         10. As part of the default terms of their contract, Kristy and
         Denise agreed that their rights and obligations with respect to a
         child of either of them are the same as those of spouses. Cal.
         Fam. Code § 297.5(d).
         11. In Indiana when spouses have a child through artificial

Court of Appeals of Indiana | Opinion 32A01-1601-DR-82 | August 15, 2016   Page 7 of 22
         insemination using a third party sperm donor both are entitled
         to the rights and obligations of parents the same as though the
         non-biological parent had adopted the child. Engelking v.
         Engelking, 982 N.E.2d 327 (Ins. [Ct.] App. 2013); Levin v. Levin,
         645 N.E.2d 601, 605 (Ind. 1999).
         12. By entering into their contract Kristy agreed that Denise
         would be treated as a parent with respect to [C.G.]
         13. Denise is entitled to continue her parent-like relationship
         with [C.G.] consistent with his best interests and is obligated to
         provide him with financial support consistent with Indiana law.
         14. This matter is distinguishable from A.C. v. N.J., 1 N.E.3d
         685 (Ind. [Ct.] App. 2013). The holding of the A.C. decision
         with respect to the legal relationship between A.C. and the child
         does not control the outcome of this case. There the Court of
         Appeals declined to declare that the domestic partner was the
         child’s legal parent by virtue of an informal, verbal agreement.
         In the instant case the parties have a formal, legal relationship
         by virtue of their registered domestic partnership making them
         more like the spouses in Levin and Engleking [sic] than the
         informal domestic partners in A.C. Furthermore, the Court’s
         holding in A.C. that the trial court could award the domestic
         partner visitation with the child supports this Court’s order here.


                                                 ***


         IT IS THERE[FORE] ORDERDED, ADJUDGED AND
         DECREED BY THE COURT AS FOLLOWS:


         1. The parties are not married and the pending requests for
         dissolution of marriage are hereby dismissed.
         2. The parties’ domestic partnership is terminated.
         3. Kristy shall have physical custody of [C.G.] Kristy and
         Denise shall share joint legal custody of [C.G.]
         4. Denise shall have the following visitation with [C.G.]:
               a. [Video] communication twice each week on days and

Court of Appeals of Indiana | Opinion 32A01-1601-DR-82 | August 15, 2016   Page 8 of 22
                      times to be agreed upon by the parties. . . .
                      b. When Denise travels to Indiana she shall have in
                      person visitation with [C.G.] three (3) times per week for
                      one hour each.
                      c. When Denise travels to Indiana for holidays and
                      [C.G.]’s birthday, she shall have visitation with [C.G.] as
                      the parties agree. . . .
               5. Denise shall pay the sum of $64.00 each week for child
               support in accordance with the attached Child Support
               Worksheet effective December 18, 2015.
               6. Kristy is responsible for the first $879.84 of uninsured
               medical, health, dental and optical expenses for [C.G.] on a
               yearly basis. Thereafter Denise shall be responsible for 13% and
               Kristy shall be responsible for 87% of these expenses on a yearly
               basis.



      Appellant’s Appendix at 13-19. Kristy now appeals.



                                 Discussion and Decision
                                      I. Standard of Review
[4]   Decisions regarding child custody, parenting time, and child support are all

      reviewed for abuse of discretion. Miller v. Carpenter, 965 N.E.2d 104, 108 (Ind.

      Ct. App. 2012). On appeal, we neither reweigh evidence nor reassess witness

      credibility. Id. Rather, we consider only the evidence most favorable to the

      judgment and the inferences flowing therefrom. Id.


[5]   The trial court entered findings of fact and conclusions thereon pursuant to

      Indiana Trial Rule 52(A). Such findings must disclose a valid basis for the legal


      Court of Appeals of Indiana | Opinion 32A01-1601-DR-82 | August 15, 2016   Page 9 of 22
      result reached in the judgment, and the evidence presented must support each

      of the specific findings. J.M. v. N.M., 844 N.E.2d 590, 599 (Ind. Ct. App. 2006),

      trans. denied. On appeal, we apply the following two-tiered standard: whether

      the evidence supports the findings and whether the findings support the

      judgment. Redd v. Redd, 901 N.E.2d 545, 549 (Ind. Ct. App. 2009). The trial

      court’s findings and judgment will be set aside only if they are clearly

      erroneous. Steele-Giri v. Steele, 51 N.E.3d 119, 123 (Ind. 2016). A judgment is

      clearly erroneous when a review of the record leaves us with a firm conviction

      that a mistake has been made. Redd, 901 N.E.2d at 549. We review

      conclusions of law de novo. Id. Finally, we generally give considerable

      deference to the trial court’s findings in family law matters as the trial court is in

      the best position to become acquainted with the relationship between parents

      and their children. Id.


                                     II. Spousal Relationship
[6]   Kristy contends the evidence does not support findings 8 and 101 and challenges

      the trial court’s conclusion based on those findings that the couple’s RDP

      agreement, at a minimum, constitutes a valid contract incorporating default

      terms set forth in the California Family Law Code, namely that the couple

      shared the same rights and obligations as spouses share. Specifically, she




      1
        In findings 8 and 10, the trial court found that by entering into a RDP, Kristy and Denise understood they
      were agreeing to, and intending to be bound by, California laws governing domestic partnerships, and as a
      result, they would be treated as spouses.

      Court of Appeals of Indiana | Opinion 32A01-1601-DR-82 | August 15, 2016                        Page 10 of 22
      argues there is no evidence the parties understood and intended to be bound by

      California’s laws governing RDPs and therefore there is no binding agreement.

      She also argues, assuming the RDP agreement did establish a relationship

      identical to marriage, the trial court erred in recognizing such a relationship in

      Indiana. We disagree.


[7]   In 2003, the California Legislature enacted the Domestic Partner Act (“Act”)—

      which affords two same-sex individuals who had previously, or would in the

      future, become registered domestic partners with certain rights and

      responsibilities—with the intent “to equalize the status of registered domestic

      partners and married couples.” Koebke v. Bernardo Heights Country Club, 115

      P.3d 1212, 1219 (Cal. 2005). In order to be declared domestic partners, couples

      must submit a Declaration of Domestic Partnership pursuant to sections 297

      and 298 of the Act. Effective January 1, 2005, section 297.5 provided,


              (a) Registered domestic partners shall have the same rights,
              protections, and benefits, and shall be subject to the same
              responsibilities, obligations, and duties under law, whether they
              derive from statutes, administrative regulations, court rules,
              government policies, common law, or any other provisions or
              sources of law, as are granted to and imposed upon spouses.
              ***
              (d) The rights and obligations of registered domestic partners
              with respect to a child of either of them shall be the same as those of
              spouses.




      Court of Appeals of Indiana | Opinion 32A01-1601-DR-82 | August 15, 2016      Page 11 of 22
      (Emphasis added); see also Cal. Fam. Code § 299.3 (providing that domestic

      partners who entered into a RDP prior to January 1, 2005, would, as a matter

      of law, be receiving new rights and responsibilities).

              [T]he decision to marry or to enter into a domestic partnership is
              more than a change in the legal status of individuals who have
              entered into marriage or domestic partnership. In both cases, the
              consequences of the decision is the creation of a new family unit
              with all of its implications in terms of personal commitment as
              well as legal rights and obligations.


      Koebke, 115 P.3d at 1221. In addition, California passed section 299.3, which

      provided those individuals who entered into a RDP prior to January 1, 2005,

      the opportunity to enter into written agreements that would be “enforceable in

      the same manner as a premarital agreement under California law . . . .” Cal.

      Fam. Code § 299.3. Stated differently, those individuals were allowed to

      contract around the default terms set forth in section 297.5. Section 299.3 also

      provided notice to all individuals who would become domestic partners after

      January 1, 2005, that domestic partners would begin receiving “many new

      rights and responsibilities . . . .” Therefore, section 299.3 puts those individuals

      who sought to enter into a RDP after January 1, 2005, such as Kristy and

      Denise, on notice that they would be governed by the default terms set forth in

      section 297.5 unless they entered into an express agreement to the contrary.


[8]   Here, the evidence shows Kristy and Denise, while living together in California,

      signed a notarized Declaration of Domestic Partnership in March 2006,

      swearing,

      Court of Appeals of Indiana | Opinion 32A01-1601-DR-82 | August 15, 2016   Page 12 of 22
        We the undersigned, do declare that we meet the requirements of
        Family Code Section 297, which are as follows:


                 We have a common residence;


                 Neither of us is married to someone else, or is a member of
                 another domestic partnership with someone else that has
                 not been terminated, dissolved, or adjudged a nullity;


                 We are not related by blood in a way that would prevent
                 us from being married to each other in this state;


                 We are both at least 18 years of age;


                 We are both members of the same sex . . .;


                 We are both capable of consenting to the domestic
                 partnership;


                 We consent to the jurisdiction of the Superior Courts of
                 California for the purpose of a proceeding to obtain a
                 judgment of dissolution or nullity of the domestic
                 partnership or for legal separation of partners in the
                 domestic partnership, or for any other proceeding related
                 to the partners’ rights and obligations, even if one or both
                 partners ceases to be a resident of, or to maintain a
                 domicile in, this state.


Appellant’s App. at 76; see also Cal. Fam. Code §§ 297, 298 (2005). Kristy and

Denise did not enter into a written agreement prior to submitting their

Declaration. The California Secretary of State issued a Certificate of Registered

Domestic Partnership declaring Denise and Kristy domestic partners “[i]n

Court of Appeals of Indiana | Opinion 32A01-1601-DR-82 | August 15, 2016    Page 13 of 22
      accordance with Section 297 of the Family Code of the State of California.”

      Appellant’s App. at 77.


[9]   Kristy now claims she did not intend to be bound by the default terms set forth

      in section 297.5 because the Declaration of Domestic Partnership did not

      include language notifying her of the statutory default terms. We acknowledge

      the Declaration does not specifically detail any rights or obligations associated

      with entering into an RDP. However, we also note both the Declaration and

      the Certificate reference California’s domestic partnership statute. See id. at 76,

      77. In addition, parties to a contract “are presumed to know and to have had in

      mind all applicable laws extant when an agreement is made” and “existing laws

      are considered part of the contract just as if they were expressly referred to and

      incorporated.” Rice v. Downs, 203 Cal. Rptr. 3d 555, 565-66 (Cal. Ct. App.

      2016) (citation omitted); see also Ethyl Corp. v. Forcum-Lannom Assocs., Inc., 433

      N.E.2d 1214, 1220 (Ind. Ct. App. 1982) (“It is well settled in Indiana that

      generally, unless the contract provides otherwise, all applicable law in force at

      the time the agreement is made impliedly forms a part of the agreement without

      any statement to that effect . . .; the parties are presumed to have had the law in

      mind.”). Therefore, despite the Declaration not detailing statutory language

      pertaining to the rights and obligations of domestic partners, we conclude

      Kristy and Denise contractually entered into a RDP—thereby incorporating

      default terms of California law—and agreed to be treated as spouses. See Cal.

      Fam. Code § 297.5.




      Court of Appeals of Indiana | Opinion 32A01-1601-DR-82 | August 15, 2016   Page 14 of 22
[10]   In addition, we do not see how the trial court erred in recognizing the couple’s

       RDP was the equivalent of marriage. Indiana’s recognition of a foreign

       marriage is a matter of comity. Mason v. Mason, 775 N.E.2d 706, 709 (Ind. Ct.

       App. 2002), trans. denied. “On comity grounds, Indiana will accept as legitimate

       a marriage validly contracted in the place where it is celebrated.” Id. Comity

       “represents a willingness to grant a privilege, not as a matter of right, but out of

       deference and good will.” Id. (citation omitted). However, Indiana courts

       “need not apply a sister state’s law if such law violates Indiana public policy.”

       Id.


[11]   Kristy contends the trial court erred in recognizing Kristy’s and Denise’s RDP

       as a spousal relationship because recognition of a same-sex marriage is contrary

       to Indiana public policy. Kristy’s argument is outdated. Kristy is correct in

       asserting that this court and our supreme court previously acknowledged a

       public policy against recognizing same-sex marriages because our legislature

       had enacted Indiana Code section 31-1-1-1(b), which stated a same-sex

       marriage is void in Indiana even if lawful in the state where it is celebrated. See

       McPeek v. McCardle, 888 N.E.2d 171, 174 n.2 (Ind. 2008); Mason, 775 N.E.2d at

       709 n.3. However, Indiana Code section 31-1-1-1 has been struck down as

       unconstitutional as “discriminating against homosexuals” by denying them

       rights granted to heterosexuals, “namely the right to marry an unmarried adult

       of their choice.” Baskin v. Bogan, 766 F.3d 648, 657 (7th Cir.), cert. denied, 135

       S.Ct. 316 (2014). In addition, the Supreme Court of United States has made

       clear “there is no lawful basis for a State to refuse to recognize a lawful same-

       Court of Appeals of Indiana | Opinion 32A01-1601-DR-82 | August 15, 2016   Page 15 of 22
       sex marriage performed in another State on the ground of its same-sex

       character.” Obergfell v. Hodges, 135 S.Ct. 2584, 2608 (2015).


[12]   Here, California law makes clear a RDP is identical to marriage. If we did not

       recognize California RDPs as the equivalent of marriage, it would seem to

       allow individuals to escape the obligations California imposes upon domestic

       partners, namely with respect to children. See Cal. Fam. Code § 297.5(d)

       (providing that registered domestic partners share the same rights granted to

       and obligations imposed upon spouses who have children). Applied here, a

       decision not recognizing their spousal status would allow Denise, a non-

       biological parent, to simply cross state lines in order to avoid parental

       obligations such as child support. In addition, not recognizing their status

       would ultimately harm C.G. because a child’s welfare is promoted by ensuring

       she has two parents to provide financial support. See Straub v. B.M.T. by Todd,

       645 N.E.2d 597, 601 n.9 (Ind. 1994). Thus, recognizing this spousal

       relationship does not go against Indiana public policy, we conclude the

       evidence supports findings 8 and 10, and the trial court did not err in

       concluding Kristy and Denise agreed to enter a spousal relationship in

       accordance with California law nor did it err in recognizing their spousal status.


                                           III. Legal Parent
[13]   Given Denise’s and Kristy’s spousal relationship and the fact C.G. was born,

       and has always lived, in Indiana, we next address whether Denise is C.G.’s

       legal parent under Indiana law. Kristy contends Denise is not C.G.’s legal


       Court of Appeals of Indiana | Opinion 32A01-1601-DR-82 | August 15, 2016    Page 16 of 22
       parent, arguing an agreement between domestic partners to co-parent a child

       born by artificial insemination is not enforceable. Denise counters she is C.G.’s

       legal parent, arguing the couple’s RDP agreement established a spousal

       relationship recognizable under comity and Denise and Kristy knowingly and

       voluntarily agreed to co-parent a child by artificial insemination. We agree

       with Denise.


[14]   In Levin v. Levin, 645 N.E.2d 601 (Ind. 1994), a married couple decided to have

       a child via artificial insemination. When the child was ten years old, the couple

       divorced and the father was required to pay child support. After paying child

       support for five years, the father filed a motion requesting the trial court to

       vacate the child support order because the child was not a “child of the

       marriage” under the Dissolution of Marriage Act, which the trial court denied.2

       Our supreme court affirmed the denial of the father’s motion, noting,


               A child conceived through artificial insemination, with the
               consent of both parties, is correctly classified as a child of the
               marriage. . . . We thus hold that, as in the case of adoption,
               where both the husband and wife knowingly and voluntarily consent to
               artificial insemination, the resulting child is a child of their
               marriage.




       2
        The Dissolution of Marriage Act defines a “child of the marriage” as those “born or adopted during the
       marriage of the parties.” Ind. Code § 31-9-2-13(a)(2).

       Court of Appeals of Indiana | Opinion 32A01-1601-DR-82 | August 15, 2016                      Page 17 of 22
       Id. at 605 (emphasis added). Because both parties knowingly and voluntarily

       consented to the artificial insemination, the non-biological father was a legal

       parent and was required to pay child support. Id.


[15]   In Engelking v. Engelking, 982 N.E.2d 326 (Ind. Ct. App. 2013), we encountered

       the same issue set forth in Levin, namely whether the non-biological father was

       the legal parent of two children conceived during marriage by artificial

       insemination. There,


               Mother testified that Father knew of the artificial inseminations
               that led to the conception of both children, helped her conduct
               research to determine the paraphernalia used to facilitate the first
               artificial insemination, talked with [the sperm donor] and his
               wife about the use of [the donor]’s sperm as a component of both
               inseminations, and consented to both inseminations. She also
               testified that Father saved the paraphernalia for the second
               insemination so that the first child would be an only child. She
               further testified that Father supported the child during the
               marriage, exercised his visitations rights during most of the
               lengthy period between the filing of the petition for dissolution
               and the final hearing, and claimed the oldest child on his tax
               return.


       Id. at 328. We concluded the non-biological father and mother knowingly and

       voluntarily consented to the artificial inseminations and therefore the non-

       biological father was the legal parent of both children. Id. at 329.




       Court of Appeals of Indiana | Opinion 32A01-1601-DR-82 | August 15, 2016   Page 18 of 22
[16]   Kristy maintains Levin and Engelking are inapplicable to the present case

       because Kristy and Denise were not married when C.G. was born.3 Kristy is

       correct to the extent Kristy and Denise were not “married.” But that is not a

       relevant distinction.4 Kristy and Denise entered into a formal RDP agreement

       equivalent to marriage under California law, and given Indiana’s principle of

       comity, we recognize their spousal relationship and treat them similarly to the

       married couples in Levin and Engelking.


[17]   That said, the evidence establishes Kristy and Denise agreed to co-parent a

       child conceived via artificial insemination with Kristy being the birth parent.

       Initially, they sought donors through various sperm banks but ultimately

       abandoned that idea. Kristy then discussed with a male friend the possibility of

       him donating his sperm. Kristy, Denise, and the friend met to discuss a

       proposed sperm donor agreement and ultimately all three agreed to the

       arrangement. Over the next five months, the friend provided sperm donations

       at the couple’s home. Denise was present for Kristy’s inseminations, and both

       were elated when Kristy became pregnant. During the pregnancy, Denise

       attended Kristy’s prenatal appointments and parenting classes, and Kristy




       3
        We find it interesting Kristy filed a Petition for Dissolution of Marriage, alleging the couple “married” in
       2006 and “[o]ne child was born during the marriage,” see Appellant’s App. at 23, despite Kristy arguing on
       appeal she did not intend to enter into a spousal relationship with Denise and Denise is not C.G.’s legal
       parent.
       4
         In addition, we acknowledge in both Levin and Engelking, the non-biological parent sought to avoid parental
       rights and obligations whereas Denise is a non-biological parent seeking to receive parental rights and
       obligations. This distinction does not change the law applicable to this situation, but given this unique
       circumstance, we find it noteworthy.

       Court of Appeals of Indiana | Opinion 32A01-1601-DR-82 | August 15, 2016                          Page 19 of 22
       planned for the child to carry Denise’s last name. In fact, Kristy discussed the

       possibility of the child carrying Denise’s last name with Denise’s father.


[18]   Following C.G.’s birth, Kristy attempted to give him Denise’s last name, but

       the hospital would not allow it. Despite this, Denise and Kristy still considered

       C.G. to be Denise’s son. Thereafter, Denise attended C.G.’s doctor’s

       appointments and cared for C.G. by feeding him, changing him, and playing

       with him. Kristy also asked Denise to name C.G. as a beneficiary of her life

       insurance; both Denise and her father included C.G. as a beneficiary on their

       life insurance policies. After the couple ended their relationship and Denise

       returned to California, Denise remained in contact with C.G. via video chat.

       We therefore conclude Kristy and Denise, as spouses, knowingly and

       voluntarily consented to artificial insemination. Denise is C.G.’s legal parent.


                                           IV. Parenting Time                     5




[19]   Kristy contends the trial court erred in awarding Denise parenting time.6

       Generally, “not only does a noncustodial parent have a presumed right of



       5
        Kristy also argues the trial court erred in awarding Denise joint legal custody of C.G and ordering Denise to
       pay child support; Denise does not challenge the child support order. Indiana Code section 31-17-2-13
       provides, “The court may award legal custody of a child jointly if the court finds that an award of joint legal
       custody would be in the best interest of the child.” Kristy does not argue the custody award was not in
       C.G.’s best interest. Therefore, to that extent, her argument is waived. See Ind. Appellate Rule 46(A)(8)(a).
       However, she argues the trial court erred because Denise is not a natural parent. As noted above, Denise is
       C.G.’s legal parent. As such, we conclude the trial court did not err in awarding Denise joint legal custody
       nor did it err in ordering Denise to pay child support.
       6
         Kristy also challenges findings 38, 41, 44, and 45. We conclude these findings are supported by the
       evidence, and Kristy’s assertions to the contrary invite us to either reweigh the evidence or reassess witness
       credibility, which we will not do. And, even assuming these findings are clearly erroneous, the decision of
       the trial court is supported by the remainder of the findings.

       Court of Appeals of Indiana | Opinion 32A01-1601-DR-82 | August 15, 2016                           Page 20 of 22
       parenting time, but the child has the correlative right to receive parenting time

       from the noncustodial parent because it is presumed to be in the child’s best

       interest.” Perkinson v. Perkinson, 989 N.E.2d 758, 764 (Ind. 2013). “A parent

       not granted custody of the child is entitled to reasonable parenting time rights

       unless the court finds, after a hearing, that parenting time by the noncustodial

       parent might endanger the child’s physical health or significantly impair the

       child’s emotional development.” Ind. Code § 31-17-4-1(a). Because Kristy

       does not assert Denise’s parenting time might endanger C.G.’s physical or

       mental health, she has waived this argument. See Ind. Appellate Rule

       46(A)(8)(a). Waiver notwithstanding, we note the trial court ordered Denise to

       receive the following parenting time: video chat communications twice a week;

       three visits per week, for one hour each, when Denise travels to Indiana; and

       parenting time as the parties deem fit when Denise travels to Indiana for

       holidays and C.G.’s birthday. Given the lack of evidence indicating parenting

       time would endanger C.G., coupled with the limited parenting time awarded to

       Denise, we conclude the trial court did not err in awarding Denise parenting

       time.



                                               Conclusion
[20]   California allows same-sex individuals to enter into RDP agreements. Under

       California law, parties to a RDP are treated virtually identical to married

       spouses. Kristy and Denise contracted to enter into a relationship equivalent to

       marriage, which we recognize under comity. In Indiana, spouses who


       Court of Appeals of Indiana | Opinion 32A01-1601-DR-82 | August 15, 2016   Page 21 of 22
       knowingly and voluntarily consent to artificial insemination are the legal

       parents of the resulting child. The trial court did not err in concluding Denise is

       C.G.’s legal parent, in awarding her joint legal custody and parenting time, and

       in ordering her to pay child support. Accordingly, we affirm.


[21]   Affirmed.


       Najam, J., and Crone, J., concur.




       Court of Appeals of Indiana | Opinion 32A01-1601-DR-82 | August 15, 2016   Page 22 of 22
