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.