Monday, August 6, 2007

Custody case stirs gay-marriage debate

Custody case stirs gay-marriage debate
Battle over visitation, care of disabled man flares between parents and longtime partner
By Melissa Patterson
August 6, 2007

Brett Conrad spent more than half his life as Patrick Atkins' partner. For 25 years, the men shared bank accounts, apartments and eventually a home in Fishers.
But when Atkins, 47, fell seriously ill in 2005, Conrad faced what many gay Hoosiers consider a travesty: no law guaranteeing them the same rights as married couples to participate in care decisions for their ill partners.
Conrad, 47, spent much of the past two years trying to win guardianship of Atkins from Atkins' parents, Thomas and Jeanne of Carmel. Jeanne Atkins is quoted in court documents as saying she believes homosexuality is a sin and that she disapproves of the men's relationship. The parents have barred Conrad from visiting their now-disabled son in their home where he lives.
In June, Conrad won visitation rights from the Indiana Court of Appeals, but the court upheld an earlier Hamilton County ruling that left control of Atkins' care to his parents.
Gay-rights activists say the men's story illustrates the discrimination embedded in Indiana law and underscores why gay marriage should be allowed.
On the other side, opponents of same-sex marriage say the case could have been prevented if Conrad and Atkins had used existing laws that can give unmarried couples -- straight and gay -- the legal right to act on each other's behalf.
In its ruling, the appeals court recognized the human suffering at the center of the case:
"We are confronted here with the heartbreaking fracture of a family," the judges wrote in their ruling. "Brett and Patrick have spent 25 years together as life partners -- longer than Patrick lived at home with his parents -- and their future life together has been destroyed by Patrick's tragic medical condition and by the Atkinses' unwillingness to accept their son's lifestyle."
Court debates go on

The Atkins family attorney, David Richey, Lebanon, in July asked the appeals court to reconsider granting visitation, arguing the judges failed to recognize that, as guardians, the Atkinses should have final say on who can see and have contact with their son.
Conrad and his attorney, Jeffrey Dible, Indianapolis, declined to be interviewed for this story because the case is pending.
According to the case file, Atkins and Conrad met in 1978 while attending Wabash College in Crawfordsville.
Atkins came from a deeply religious family that disapproved of the relationship. In 2000, he begged for acceptance from his family through a letter.
"Trust me," he wrote, "God loves us all so very much, and I know he approves of the love that Brett and I have shared for over 20 years."
Conrad and Atkins lived together in various apartments for 12 years until buying a home in Fishers in 1992, which they titled jointly, court documents say.
Before falling ill, Atkins had been chief executive of his family's business, Atkins Elegant Desserts and Atkins Cheesecake.
On March 11, 2005, Atkins collapsed while on a business trip to Atlanta. He had a ruptured aneurysm and later suffered a stroke while hospitalized.
Conrad traveled to the Atlanta hospital to be with Atkins but was soon denied access by the family. Hospital staff defied the family's wishes and let Conrad visit Atkins during off-hours.
Atkins eventually was moved to a nursing facility in Carmel, where Conrad would arrive after regular visiting hours so the Atkinses would not see him.
He filed his guardianship request in June 2005. That November, the Atkinses moved Patrick into their home and have since refused to let Conrad visit. They also have refused his phone calls.
At the time of the trial, Atkins was able to walk, dress, bathe and feed himself with some help, to read accurately but understand only 25 percent of what he read, and to engage in simple conversations, court documents show. He still required close supervision and had significant problems with short-term memory and maintaining a prolonged attention span.
His condition today remains much the same, according to the most recent court filings.
The recent decision

In the June 27 decision, the appeals court ordered the lower court to grant Conrad the right to visit Atkins but not the right to be his guardian.
While judges have discretion in awarding guardianship, their decision is guided by state statute, which spells out that guardianship of an incapacitated person should fall to whoever has power of attorney, which is the legal authorization to act on behalf of that person.
If no power of attorney exists, next in line comes the spouse, then an adult child, then a parent and still more options related to marriage or blood. There is no specific right for gay partners.
Hamilton Superior Court Judge Steven R. Nation sided with the Atkins family, noting the lack of a power of attorney.
The appellate court affirmed that decision, saying it found no evidence the lower court had abused its discretion and that it was clear the Atkinses were committed to providing Patrick the best possible care.
In its decision, however, the court expressed misgivings about how the Atkinses feel about their son's sexuality. "We are extraordinarily skeptical that the Atkinses are able to take care of Patrick's emotional needs," said Chief Judge John G. Baker, writing for the 2-1 majority.
That, in part, is why the judges granted Conrad visitation rights, citing the findings of a court-appointed guardian who testified that Atkins would only stand to benefit if Conrad were allowed to visit him.
Gay-rights advocates say nothing short of marriage rights can provide the legal shield necessary to defend against a partner's relatives.
Without such protection, says the Rev. Jeff Miner, a pastor at Jesus Metropolitan Community Church, a gay-affirming congregation in Indianapolis, "you're thrown upon the mercy of the family, and in some cases they're not merciful."
Others who fought for a same-sex marriage ban in the Indiana Constitution this year see the issue differently.
"The problem isn't the couple couldn't get married," said Curt Smith, president of the conservative Indiana Family Institute. "The energy from the intervention comes from the parents' disapproval. . . . They think it's wrong, and that's not something the law can address."
While Conrad v. Atkins is a tragic case, Smith said, it doesn't merit changing Indiana laws.
The same circumstance could have befallen an unmarried straight couple, and there are a number of protections available to unwed couples that Conrad and Atkins didn't use, he said.
For example, he said, gay couples can appoint a health-care representative to ensure they are cared for in times of illness. Partners can include each other in wills.
But many gay couples aren't confident of those methods, saying nothing can match the unassailable rights of marriage.
For Kim Allman and Leisa Waggoner, disapproving families aren't the only threat to the layers of contracts in place to protect their assets, health and two children.
Waggoner, who adopted Allman's children, is painfully aware that when the family travels to Oklahoma to visit Allman's brother, state law there explicitly forbids her adoptive status.
"That would mean that if something happened to Kim (in Oklahoma), I could lose the kids," Waggoner said. "I'm scared."
Regardless of how the courts rule in the Conrad-Atkins case, the Atkinses aren't likely to change their minds about their son's relationship.
Jeanne Atkins testified at trial that it was "probably true" she would not let the men see each other unless required by law.
The record also shows that she told Conrad that if her son was going to return to life with his partner after recovering from his stroke, she would prefer he not recover at all.
In the bid for a rehearing, the Atkinses' lawyer denies Jeanne Atkins made the comment.

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