Olbera v. Sykes, No. 25A-JP-2005 (2026)

Case details
Full caption
Nicole Olbera, et al. v. Tiara Sykes
Country
United States
Jurisdiction
Indiana (IN)
Court
Indiana Supreme Court
Decided
2026
Disposition
Reversed and Remanded
Panel
Brown (J.); Altice (J.)
Opinion
Per curiam
Nicole Olbera, et al., Appellants v. Tiara Sykes, Appellee-Plaintiff, --- N.E.3d ---- (2026) © 2026 Thomson Reuters. No claim to original U.S. Government Works.12026 WL 860644Only the Westlaw citation is currently available.Court of Appeals of Indiana.Nicole Olbera, et al., Appellantsv.Tiara Sykes, Appellee-PlaintiffCourt of Appeals Case No. 25A-JP-2005|March 30, 2026Editor's Note: This decision contains discussion of citationreferences that are incorrect or do not actually exist. Theseinvalid citations appeared in the original court opinion andhave been preserved as written since they are part of theofficial record. Any links to these invalid citations have beenremoved.Appeal from the Marion Superior Court The Honorable DaunA. Weliever, Magistrate Trial Court Cause No. 49D15-2401-DC-39 49D15-2401-JP-559Attorneys and Law FirmsAttorney for Appellant Nicole Olbera, Thomas Roberts,Roberts Law, Noblesville, IndianaAttorney for Appellant Demaj Baker, Georgia Dunkerley,Harshman Ponist Smith & Rayl, Indianapolis, IndianaAppellee Pro Se, Tiara Sykes, Indianapolis, IndianaJudges Brown and Altice concur.DeBoer, Judge.Case Summary*1 [1] In Henderson v. Box, the Seventh Circuit Court ofAppeals held that Indiana's statutory marital presumption ofpaternity was unconstitutional because it denied female same-sex spouses a presumption opposite-sex spouses are afforded:that a child born during the marriage is presumed to be alegitimate child, born in wedlock, and that each spouse in theunion is the child's parent. 947 F.3d 482, 488 (7th Cir. 2020),cert. denied; see also Ind. Code § 31-14-7-1(1) (“A man ispresumed to be a child's biological father if: [ ] the ... man andthe child's biological mother are ... married to each other; and[the] child is born during the marriage[.]”). At issue in thisappeal is how to apply that presumption when a woman bearsa child in a same-sex marriage and both her spouse and thebiological father claim parentage.[2] Tiara Sykes and Nicole Olbera were in a same-sex relationship and wanted to have a child together. Tofurther this goal, they introduced Demaj Baker into theirrelationship, and for a while both women had consensualsexual relationships with Baker. Olbera eventually becamepregnant, and she and Sykes married a few weeks beforeshe gave birth to N.O.-B. Eventually the women separated,and Sykes filed a petition for dissolution of marriage allegingthat N.O.-B. was a child of the marriage. Baker then filed apetition to establish paternity with respect to N.O.-B.[3] Following numerous interim proceedings in thedissolution and paternity causes, the trial court effectivelyruled that Henderson compelled a conclusion that Sykes wasN.O.-B.’s legal parent and Baker was not.1 As a result, itdismissed Baker's petition to establish paternity and entereda decree of dissolution awarding Olbera sole legal andprimary physical custody of N.O.- B., subject to Sykes’parenting time. Olbera and Baker now jointly appeal andargue, among other things, that the court clearly erred ingranting Sykes legal parentage because Baker rebutted themarital presumption. Because we agree with their argument,we reverse and remand.Facts and Procedural History[4] In 2019, Olbera and Sykes began dating and then movedin together, along with Sykes’ three children.2 The women gotengaged to be married and decided they wanted to have a childtogether. They agreed they would conceive with a mutuallyagreed upon male, and it was their intention that Sykes wouldget pregnant and carry the child to term.*2 [5] Sometime in 2020, Baker moved in with Sykes andOlbera. The two women found Baker to be a suitable male toprovide the sperm necessary to conceive their child. All threeagreed that they wanted the child to know his or her father andthat Baker would be a part of the child's life. From Januaryuntil June 2021, Sykes and Olbera both had consensual sexualintercourse with Baker. Sykes became pregnant twice inearly 2021, but both pregnancies resulted in miscarriages.Thereafter, the women agreed that Olbera would conceive andcarry the child. Sykes was present when Olbera and Bakerconceived a child through sexual intercourse. During Olbera's
Nicole Olbera, et al., Appellants v. Tiara Sykes, Appellee-Plaintiff, --- N.E.3d ---- (2026) © 2026 Thomson Reuters. No claim to original U.S. Government Works.2pregnancy, Sykes attended the prenatal care appointments—Baker did not.[6] Sykes and Olbera went to an attorney to get legal adviceabout adoption. Based on that advice, in November 2021—less than a month before the child was born—Sykes andOlbera got married. Sykes believed marrying Olbera wouldensure her status as the child's legal parent. Sykes beganusing Olbera's last name, but she never went through thesteps to legally change her name. When N.O.-B. was born onDecember 18, 2021, Baker was present in the delivery room.Sykes and Olbera agreed to give N.O.-B. their shared lastname, “Olbera,” and to hyphenate his last name with Baker's,since Baker would not be listed on the birth certificate. N.O.-B.’s birth certificate lists his parents as “Tiara Denise Olberaand Nicole Erica Olbera.” Exhibits at 4.[7] In July 2023, Olbera moved to Texas to live with her newgirlfriend and her children. Baker still lived in the maritalresidence with Sykes at that time, but he moved out later thatyear. When Olbera moved out of state, she and Sykes agreedthat N.O.-B. would live with Sykes in Indiana and Olbera inTexas for months at a time. On December 16, 2023, Sykesagreed to let Baker spend time with N.O.-B. while N.O.-B.was staying with her. Without notifying Sykes, Olbera cameto Indiana that day, took N.O.-B., and flew back to Texas.Later, Olbera informed Sykes that she wouldn't be bringinghim back to Indiana because Sykes was not his biologicalmother.[8] In the weeks that followed, Sykes initiated dissolutionproceedings and Baker petitioned to establish paternity.Because of the extent to which the dissolution and paternitymatters overlapped, we list the relevant procedural historychronologically.• January 2, 2024: Sykes filed a petition for dissolutionof marriage in which she alleged that she and Olbera“share[d] one minor child, born during the marriage[.]”Appellants’ Appendix Vol. 2 at 34.• January 19, 2024: Baker filed a petition to establishpaternity alleging he was N.O.-B.’s biological father. Id.at 38.• February 15, 2024: Sykes filed a motion to intervene inthe paternity case that same month, but her motion wasn'tgranted until June 21, 2024.• February 23, 2024: Olbera filed a counter petition fordissolution of marriage, alleging she and Sykes had “nochildren of the marriage” and Sykes had “no legal rightsregarding” N.O.-B. Id. at 45.• March 6, 2024: Paternity court approved a ProvisionalAgreed Entry between Baker and Olbera, which foundthat Baker “is the Father of [N.O.-B.] and paternityha[d] been established by stipulation[.]” Id. at 51. TheProvisional Agreed Entry granted Olbera sole legal andprimary physical custody of N.O.-B. and gave Bakerparenting time in accordance with the Parenting TimeGuidelines when distance is a major factor.• April 2, 2024: Dissolution court held a provisionalhearing, and in its June 27 order, the court noted therelated paternity case but granted Sykes parenting timefor seven weeks between July and September 2024. Indoing so, the court found that N.O.-B. was born duringthe marriage, Sykes “cared for [N.O.-B.] as a parent[,]”and “there [was] a parental bond between [Sykes] and[N.O.-B.]” Id. at 65. It also cited the Seventh Circuit'sdecision in Henderson for the proposition that Indianawas required “to recognize the children of same sexparents as legitimate children, born in wedlock, and toidenti[f]y both wives in each union as parents.” Id. at64. Olbera's subsequent motion for relief from that orderwas denied.*3 • December 2024: Dissolution court held anotherhearing at which Sykes and Olbera both appeared. Theorder from this hearing once again acknowledged thatBaker had established paternity, but it still referred toSykes as N.O.-B.’s parent and found that he had been“born ... during the marriage.” Id. at 77.• April 29, 2025: Baker contemporaneously filed twomotions in the dissolution case, one to intervene andanother to dismiss “all child related matters” from thatcase for lack of subject matter jurisdiction. Id. at 85.That same day, Olbera filed a motion in the dissolutioncase requesting findings of fact and conclusions of lawfollowing the upcoming hearing, and Baker did the samein the paternity case.• April 30, 2025: Court held a joint final hearing in thedissolution and paternity cases. By that point, it hadbeen almost two years since Olbera and Sykes hadlived together, and although the court had granted her
Nicole Olbera, et al., Appellants v. Tiara Sykes, Appellee-Plaintiff, --- N.E.3d ---- (2026) © 2026 Thomson Reuters. No claim to original U.S. Government Works.3parenting time, Sykes had not seen N.O.-B. since Olberatook him to Texas in December 2023.[9] At the hearing, the court heard testimony from Sykes,Olbera, and Baker, granted Baker's motion to intervene andthe motions for findings and conclusions, and took Baker'smotion to dismiss under advisement. The testimony centeredon Sykes’ denial of court-ordered parenting time, whether shewould receive parenting time in the future, Baker and Olbera'sproposed final agreement in the paternity case, and N.O.-B.’s best interests. Notably, in reference to the relationshipstatus between Olbera, Baker, and herself, Sykes testified thatthe three “officially [got] into a throuple”3 during Olbera'spregnancy, but the trilateral relationship didn't last long.Transcript at 25. Olbera disagreed that she and Sykes gotmarried “just so that [Sykes could] get rights to [Olbera's]son[,]” instead testifying that marriage had been “in the cardsfor” her and Sykes for a while. Id. at 81. Baker, for his part,testified that he told Sykes and Olbera he wouldn't “be a spermdonor, but [he would] be a father to [his] child. And that'sbasically what [he'd] been doing ever since.” Id. at 127.[10] On August 1, the court entered a decree of dissolutionand an order dismissing Baker's petition to establish paternity,both of which contained findings of fact consistent withthe facts recited above, as well as conclusions of law.4 Thecourt found that “[e]stablishing paternity in favor of a ‘spermdonor’ undermines the parental rights of the non-biologicalparent in a same[-]sex marriage.” Id. at 89, 105. And in lightof Henderson, the court found that Baker's paternity actionwas effectively an attempt “to abrogate the legitimacy of[N.O.-B.] born in wedlock.” Id. at 90. For those reasons, andbecause it determined Baker's petition to establish paternityhad not been timely filed within two years of N.O.-B.’s birthand did not meet any of the statutory exceptions permittingthe late filing of a paternity action, the court dismissed hispetition. In the decree of dissolution, the court specificallyruled that Sykes “is a parent of [N.O.-B.] as [he] was bornof the marriage.” Id. at 105. As such, it granted Olbera“sole legal and primary physical custody subject to [Sykes’]parenting time.” Id. at 106. It also denied Baker's motion todismiss for lack of subject matter jurisdiction. Olbera andBaker now appeal.5Discussion and Decision61. Standard of Review*4 [11] Olbera and Baker appeal the trial court's judgment“voiding [Baker] of all legal rights to his child[.]” Appellants’Brief at 16. Where, as here, the trial court entered findingsof fact and conclusions of law under Indiana Trial Rule52(A), our standard of review is well-settled. Drake v. Drake,221 N.E.3d 734, 739 (Ind. Ct. App. 2023). “We must firstdetermine whether the record supports the factual findings,and then whether the findings support the judgment.” Id. Inmaking these determinations, we consider only the evidencefavorable to the judgment and do not reweigh the evidenceor judge witness credibility. Id. “[W]e will not set aside thefindings or judgment unless they are clearly erroneous[.]” Id.We do, however, “review the trial court's legal conclusionsand any questions of law—like statutory interpretation—denovo.” White v. Town of Plainfield, 264 N.E.3d 727, 737 (Ind.Ct. App. 2025), trans. denied; see also In re Paternity of InfantT., 991 N.E.2d 596, 598 (Ind. Ct. App. 2013) (reviewingde novo the trial court's legal determinations regarding pre-birth establishment of paternity and the disestablishment ofmaternity), trans. denied.2. Statute of Limitations[12] We begin our review with the paternity court's decisionto dismiss Baker's petition to establish paternity. The courtgave alternative procedural and substantive reasons for itsdismissal. Procedurally, the court found that Baker's petitionwas time-barred because he failed to file it within two yearsof N.O.- B.’s birth and did not meet any of the statutoryexceptions for late filing. In relevant part, Indiana Codesection 31-14-5-3(b) states:The mother, a man alleging to be the child's father, or thedepartment or its agents must file a paternity action not laterthan two [ ] years after the child is born, unless:(1) both the mother and the alleged father waive thelimitation on actions and file jointly;(2) support has been furnished by the alleged father or bya person acting on his behalf, either voluntarily or underan agreement with:(A) the mother;(B) a person acting on the mother's behalf; or(C) a person acting on the child's behalf;...
Nicole Olbera, et al., Appellants v. Tiara Sykes, Appellee-Plaintiff, --- N.E.3d ---- (2026) © 2026 Thomson Reuters. No claim to original U.S. Government Works.4(4) the alleged father files a petition after the mother hasacknowledged in writing that he is the child's biologicalfather[.][13] “The statute of limitation[s] for paternity actions isnot jurisdictional.” Drake v. McKinney, 717 N.E.2d 1229,1231 (Ind. Ct. App. 1999). The two-year limitation bars theremedy rather than the action itself, and “must be pleadedand proven as an affirmative defense.” In re Paternity ofK.H., 709 N.E.2d 1033, 1035 (Ind. Ct. App. 1999). The partyasserting the statute of limitations must first prove “the suitwas commenced beyond the statutory time allowed[,]” thenthe “party who relies on facts in avoidance of a statute oflimitations has the burden of proving those facts.” Id.[14] Although Sykes was not an original party to the paternitycase, she intervened in June 2024, and we find nothing in therecord indicating that she ever raised that Baker was barredfrom establishing paternity because he filed outside the two-year window. Thus, the court erred in sua sponte invoking thetwo-year limitation to dismiss Baker's petition because Bakerwas never put on notice that he was expected to prove the factsnecessary to avoid the statute of limitations.73. Presumption of Parentage[15] Substantively, the trial court also found that Baker's claimto legal parentage failed on the merits because a “child [ ] bornto same[-]sex parents is [ ] a legitimate child, born in wedlock,and both wives are identified as parents.” Appellant's App.Vol. 2 at 92. On appeal, Olbera and Baker argue that thecourt's ruling misapplied Henderson, not because the courtrecognized that Sykes was afforded the marital presumptionof parentage, but because it failed to find that Baker rebuttedthat presumption. See Appellants’ Reply Br. at 5 (asserting themarital presumption “is rebuttable for same-sex couples justas it is for opposite-sex couples” and the “uncontroverted”evidence shows Baker rebutted the presumption).*5 [16] The presumption that a child born during marriageis a legitimate child of the marriage “is one of the strongestknown to the law[.]” H.W.K. v. M.A.G., 426 N.E.2d 129, 131(Ind. Ct. App. 1981). This marital presumption is codified asIndiana Code section 31-14-7-1(1), which reads:A man is presumed to be a child's biological father if:(1) the:(A) man and the child's biological mother are or havebeen married to each other; and(B) child is born during the marriage or not laterthan three hundred (300) days after the marriage isterminated by death, annulment, or dissolution[.]Along these lines, a child is considered a “[c]hild born inwedlock” if he is born to a woman and “a man who ispresumed to be the child's father under [section 31-14-7-1(1)]unless the presumption is rebutted.” I.C. § 31-9-2-15.Conversely, when a child is born to parents to whom themarital presumption does not apply, he is considered a“[c]hild born out of wedlock.” I.C. § 31-9-2-16.[17] These statutes reflect the public policy that “stability andfinality are significant objectives to be served when decidingthe status of children of divorce.” In re Paternity of S.R.I.,602 N.E.2d 1014, 1016 (Ind. 1992). But Indiana also has“a substantial public policy in correctly identifying parentsand their offspring.” Id. Accurate identification of parents isin the best interests of children for medical, psychological,and financial reasons, and plays an important role in thedetermination of child support. Id. (noting “public policydisfavors a support order against a man who is not the child'sfather”).[18] With this background in mind, we turn to the SeventhCircuit's consideration of Indiana's marital presumption inHenderson. There, a group of plaintiffs comprised of eightfemale, same-sex married couples sought “injunctive reliefto list both the birth mother and her same-sex spouse ontheir children's birth certificates and to have their childrenrecognized as children born in wedlock.” Henderson v.Adams, 209 F.Supp.3d 1059, 1063 (S.D. Ind. 2016). Eachof those couples had “agreed to have children together andconceived through various forms of assisted reproduction,using sperm from third-party donors.” Id. at 1066. In eachcase, the State declined to list both spouses on the child's birthcertificate and informed the couples that the non-birth mothercould be recognized as the child's legal parent only afterformal adoption proceedings. Id. In support of their requestfor injunctive relief, the couples argued that the three Indianastatutes discussed above (the marital presumption and thestatutes defining a child as born in or out of wedlock) operatedto treat women in female-female marriages differently thanindividuals in opposite-sex marriages. Id. at 1068.[19] The district court agreed with the plaintiffs and issuedan injunction “requiring Indiana to treat children born into
Nicole Olbera, et al., Appellants v. Tiara Sykes, Appellee-Plaintiff, --- N.E.3d ---- (2026) © 2026 Thomson Reuters. No claim to original U.S. Government Works.5female-female marriages as having two female parents,who ... must be listed on the birth certificate.” Henderson,947 F.3d at 484. Simply put, the district court concludedthat Indiana “must treat a wife as a parent even if she didnot provide an egg.” Id. In coming to this conclusion, itfound that sections 31-9-2-15, -16, and 31-14-7-1 workedtogether to unconstitutionally discriminate against same-sexcouples under the Due Process and Equal Protection Clausesof the Fourteenth Amendment. Id.; see also Obergefellv Hodges, 576 U.S. 644, 681 (2015) (finding same-sexcouples have the constitutional right to marry and be treatedthe same as opposite-sex couples in marriage); Pavan v.Smith, 582 U.S. 563, 567 (2017) (holding unconstitutionala provision of Arkansas law requiring the birth certificateof a child conceived by a married woman by means ofartificial insemination to list as parents the child's motherand her husband because the provision denied married same-sex couples a form of legal recognition afforded to marriedopposite-sex couples).*6 [20] On appeal, the State argued that the statutoryscheme did not discriminate against women in same-sexmarriages because the requirement that the biological fatherbe identified on a birth certificate applied without exception;in other words, the presumption of parentage would beovercome in any case where a married woman gave birth as“a result of in vitro fertilization using donated sperm, or ofsexual relations outside marriage[.]” Henderson, 947 F.3d at485. At the time, Indiana required new mothers to list thechild's “father” on a birth worksheet. Id. To the State, thismeant “biological father,” and was intended to produce arecord of biological parentage. Id. Thus, the product of thebirth worksheet was an original birth certificate identifyingthe child's biological parentage. Id. And according to theState, it was this record of biological parentage—not themarital presumption—that carried legal significance because“[a] husband does not have any legal rights or duties unlesshe is the biological father.” Id. at 486. So, the State claimed,“[o]nly following an adoption” would it be proper to issue asubsequent birth certificate identifying the nonbiological butlegal parent. Id. at 485.[21] The Seventh Circuit disagreed with the State's claimthat the marital presumption under section 31-14-7-1(1)carries no legal significance. Writing for the unanimous court,Judge Easterbrook reasoned that “[u]nless the presumption iscontested, the husband is deemed the father too, with parentalrights and parental duties, in a way that both women in afemale-female marriage are not.” Id. at 486 (citing Indianacase law showing “the statutory presumption has real force”).The Seventh Circuit held that “after Obergefell and Pavan, astate cannot presume that a husband is the father of a childborn in wedlock, while denying an equivalent presumptionto parents in same-sex marriages. Because Ind. Code §31-14-7-1(1) does that, its operation was properly enjoined.”Id. at 487. Accordingly, the Seventh Circuit affirmed thedistrict court's order requiring Indiana to recognize thechildren of the married, female, same-sex couple plaintiffs“as legitimate children, born in wedlock, and to identify bothwives in each union as parents[.]” Id. at 488.[22] However, the Seventh Circuit found that some parts ofthe district court's remedy were broader than legally justifiedand required revision. Id. at 487. It observed that the districtcourt “appear[ed] to turn a presumption of parentage intoa rule of parentage, so that in a same-sex marriage thebirth certificate must list ‘Mother #1’ and ‘Mother #2’ evenif, say, the birth mother conceives through sexual relationswith a man and freely acknowledges the child's biologicalparentage.” Id. (emphasis in original). Judge Easterbrookexplained that “[t]here's no constitutional reason why apresumption that can be defeated for men can't be defeatedfor women too.” Id.8[23] Since Henderson in 2020, our Legislature has notamended section 31-14-7-1 or sections 31-9-2-15 and-16 to bring them into compliance with the constitution.Nevertheless, it is apparent to us that the marital presumptionof parentage (biological fatherhood under the terms of thestatute and in the case of opposite-sex couples) must beafforded to women in same-sex marriages. Indeed, manystates have said the same. See McLaughlin v. Jones in andfor Cnty. of Pima, 401 P.3d 492, 498 (Ariz. 2017) (holdingthat Arizona's statutory “presumption of paternity ... cannot,consistent with the Fourteenth Amendment's Equal Protectionand Due Process Clauses, be restricted to only opposite-sexcouples”), cert. denied; In re A.M., 223 A.3d 691, 697 (Pa.Super. Ct. 2019) (“We [ ] have no difficulty in holding thatthe presumption of paternity is equally as applicable to same-sex marriages as it is to opposite-sex marriages.”); Schabergv. Schaberg, 637 S.W.3d 512, 523 (Mo. Ct. App. 2021)(finding Missouri's presumption of natural parentage mustapply equally to same-sex couples “in light of the holdings inObergefell and Pavan”), trans. denied.*7 [24] In this case, Olbera gave birth to N.O.-B. whileshe was married to Sykes.9 We needn't look any further toconclude that the law required that Sykes be afforded the
Nicole Olbera, et al., Appellants v. Tiara Sykes, Appellee-Plaintiff, --- N.E.3d ---- (2026) © 2026 Thomson Reuters. No claim to original U.S. Government Works.6marital presumption of parentage. Next, we examine whetherBaker successfully rebutted that presumption.4. Rebuttable Presumption[25] Though the trial court properly recognized that themarital presumption applied here, it appears to havecommitted the same error as the district court in Hendersonby treating it as a rule of parentage rather than a rebuttablepresumption. “[T]he guarantee of equal protection cannotmean one thing when applied to one individual and somethingelse when applied to [another.]” Students for Fair Admissions,Inc. v. President and Fellows of Harvard Coll., 600 U.S. 181,206 (2023) (quoting Regents of Univ. of Cal. v. Bakke, 438U.S. 265, 289-90 (1978)); see also Henderson, 947 F.3d at487 (“There's no constitutional reason why a presumptionthat can be defeated for men can't be defeated for womentoo.”). Consequently, just as it is in opposite-sex marriages,the marital presumption of parentage is rebuttable when achild is born into a female-female marriage.[26] Indiana has long held that the marital presumption canonly be rebutted “by direct, clear, and convincing evidence.”Myers v. Myers, 13 N.E.3d 478, 482 (Ind. Ct. App. 2014)(quoting Fairrow v. Fairrow, 559 N.E.2d 597, 600 (Ind.1990)). Traditionally, the marital presumption of biologicalfatherhood has been rebutted by showing:That a husband (1) is impotent; (2) was absent so as to haveno access to the mother; (3) was absent during the entiretime the child must have been conceived; (4) was presentwith the mother only in circumstances which clearly provethere was no sexual intercourse; (5) was sterile during thetime the child must have been conceived; or (6) is excludedas the child's father based upon blood grouping test results.Id. (quoting Minton v. Weaver, 697 N.E.2d 1259, 1260 (Ind.Ct. App. 1998), trans. denied). In a 2014 non-precedentialdissent from the denial of transfer, then-Chief Justice Dicksonwrote (with whom now-Chief Justice Rush joined) that “DNAtesting, if available, should be mandatory as the exclusiveway of providing conclusive, direct, clear, and convincingevidence to rebut the presumption” of biological paternity thatarises when a child is born during a marriage. In re Paternityof I.B., 5 N.E.3d 1160, 1161 (Ind. 2014) (mem.) (Dickson,C.J., dissenting from the denial of transfer). He added that“with the advent of DNA genetic testing, courts now havea virtually foolproof way to make paternity determinations”that is “overwhelmingly superior to reliance on traditionaltestimonial methods of proof.” Id. (Dickson, C.J., dissenting).This Court has favorably cited Justice Dickson's dissent andhas expressed that “DNA testing ... has emerged as theprincipal method of determining paternity.” Myers, 13 N.E.3dat 482-83.*8 [27] To state the obvious, a purely biologically-basedevidentiary standard of rebuttal would not provide equalprotection to women in same-sex marriages seeking accessto the “governmental rights, benefits, and responsibilities”that are “linked to marriage[,]” Obergefell, 576 U.S. at670, including the requirement that children born into suchmarriages are presumed legitimate, born in wedlock, and thateach wife in the union is considered a parent. Henderson,947 F.3d at 488. One spouse in these kinds of unions willnecessarily lack a genetic connection to the child, whichwould render the presumption rebuttable in every instance,and thus be illusory.10[28] That said, for our purposes we need not define theprecise contours of the marital presumption as it arises insame-sex marriages, nor need we define with specificitya generally applicable evidentiary standard of rebuttal thatcomports with equal protection considerations, which maynot be appropriate given the novel and unique circumstancesunder which these cases will arise. It suffices to say thatunder the circumstances of this case, Baker rebutted thepresumption by showing (1) he is the child's biological father(by the admission of all parties), and (2) that the parties did notobserve the requirements to enter into an enforceable spermdonor agreement, an issue we find particularly importantgiven the dearth of evidence that Baker—either expressly orthrough his actions—manifested an intention to relinquishhis parental rights to his biological child.11 See Appellee'sBr. at 9-10 (noting Sykes and Olbera chose to hyphenateN.O.-B.’s last name “to reflect both the marital and biologicalconnections”).[29] Here, the trial court described Baker as a “spermdonor[.]” Appellants’ App. Vol. 2 at 89, 105. But the IndianaSupreme Court has expressly held that one cannot donatesperm through an act of sexual intercourse because “thereis no such thing as ‘artificial insemination by intercourse[.]’” Straub v. B.M.T. by Todd, 645 N.E.2d 597, 601 (Ind.1994), reh'g denied. Indeed, where artificial insemination isdefined in the Indiana Code, the term expressly excludesinsemination through intercourse. See I.C. § 16-41-14-2(defining “artificial insemination” to mean “the introductionof semen into the vagina or cervix of a woman by means otherthan through the act of coitus”). This definition is consistentwith dictionary definitions of the term. See Davis v. Reilly,
Nicole Olbera, et al., Appellants v. Tiara Sykes, Appellee-Plaintiff, --- N.E.3d ---- (2026) © 2026 Thomson Reuters. No claim to original U.S. Government Works.7683 S.W.3d 739, 743-45 (Tenn. 2024) (collecting dictionariesdefining “artificial insemination” to exclude inseminationby intercourse and finding that Tennessee's statutory maritalrule of legitimacy for children born as a result of artificialinsemination did not apply to a female same-sex marriedcouple when the child was conceived through intercourse).*9 [30] This Court has had multiple occasions to considerarrangements by which a female same-sex couple sought tohave a child with the assistance of a sperm donor. In In rePaternity of M.F., the mother and her female partner wanted achild, and the mother's friend agreed to provide sperm, thoughit was ultimately not proven whether insemination occurredartificially or by natural means. 938 N.E.2d 1256, 1257 (Ind.Ct. App. 2010), reh'g denied, trans. denied. After conceptionbut before birth, the mother and father signed a sperm donoragreement by which the mother agreed to waive any rightto financial support from the father and the father agreed towaive rights such as custody, visitation, and decision-makingconcerning the child's needs. Id. at 1257-58. Years after thechild, M.F., was born, the mother and her partner split up.Id. at 1258. The mother then sought to establish the father'spaternity and secure financial assistance from him, whichthe trial court denied on the grounds that the sperm donoragreement was an enforceable contract. Id.[31] On appeal, a panel of this Court reiterated that spermdonor agreements are “unenforceable as against publicpolicy” if insemination occurs via intercourse. Id. at 1260.For a sperm donor agreement to be valid and enforceable,the panel explained that “a physician must be involved in theprocess of artificial insemination” and a written instrumentmemorializing the agreement “must reflect the parties’ carefulconsideration of the implication of such an agreement anda thorough understanding of its meaning and import.” Id.at 1261. Because the contract at issue “easily me[t] th[ose]requirements” and the mother failed to meet her burden toprove that insemination occurred by intercourse, which wouldhave invalidated the contract, the panel affirmed the trialcourt's decision to deny the mother's attempt to establishpaternity of M.F. in the father.12 Id. However, the panelcautioned that “parties who execute a contract less formal andthorough than this one do so at their own peril.” Id. at 1262.[32] In Gardenour v. Bondelie, two women, Kristy andDenise, entered into a formal registered domestic partnership(RDP) in California in 2006. 60 N.E.3d 1109, 1111 (Ind. Ct.App. 2016), trans. denied. In 2012, they moved to Indiana andagreed to conceive and co-parent a child. Id. A friend agreedto donate his sperm, and he as well as the couple agreed tothe terms of a sperm donor agreement. Id. at 1113. Over thecourse of multiple months, the friend came to the couple'shome regularly and donated sperm with which Kristy wasartificially inseminated while Denise was present. Id. OnceKristy achieved pregnancy, Denise helped her plan for thechild's future, attended prenatal care appointments, parentingclasses, and the two agreed the baby would carry Denise'slast name. Id. The child was born in 2013, and the coupleco-parented for a while until Kristy cut off Denise's contactwith the child in 2014 and then filed a petition for dissolutionof marriage the next year. Id. The trial court dismissed thedissolution petition because the parties were not married, butin so doing recognized the RDP was a valid contract that upontermination functioned like a dissolution of marriage. Id. at1114-15. It ordered that Denise share joint legal custody ofthe child, receive parenting time, and pay child support. Id. at1115. Kristy appealed, arguing in part that the trial court erredin determining Denise was the child's legal parent because“an agreement between domestic partners to co-parent a childborn by artificial insemination is not enforceable.” Id. at1118.13*10 [33] On appeal in Gardenour, a panel of thisCourt upheld the trial court's finding that Denise was thechild's legal parent. The panel found that “California lawma[de] clear a RDP [was] identical to marriage” and, afterObergefell, Indiana was required to treat Kristy and Denise'sspousal relationship as valid under principles of comity.Id. at 1117-18. Reviewing Indiana case law about legalparentage following births accomplished through artificialinsemination, the panel reiterated the Indiana SupremeCourt's holding in Levin v. Levin:A child conceived through artificial insemination, with theconsent of both parties, is correctly classified as a child ofthe marriage.... We thus hold that, as in the case of adoption,where both the husband and wife knowingly and voluntarilyconsent to artificial insemination, the resulting child is achild of their marriage.Id. at 1118-19 (quoting Levin v. Levin, 645 N.E.2d601, 605 (Ind. 1994)) (emphasis in original); see alsoEngelking v. Engelking, 982 N.E.2d 326, 328 (Ind. Ct. App.2013) (concluding that because a nonbiological father andmother knowingly and voluntarily consented to artificialinsemination, the nonbiological father was the children's legalparent).14 Applying Levin and Engleking, the Gardenourpanel held that “Kristy and Denise, as spouses, knowingly andvoluntarily consented to artificial insemination.” 60 N.E.3d
Nicole Olbera, et al., Appellants v. Tiara Sykes, Appellee-Plaintiff, --- N.E.3d ---- (2026) © 2026 Thomson Reuters. No claim to original U.S. Government Works.8at 1120. Notably, the panel emphasized that there was “aproposed sperm donor agreement and ultimately all threeagreed to the arrangement.” Id. at 1119 (emphasis in original).[34] The situation in this case is different from thoseconsidered in M.F. and Gardenour for a few reasons. First,following Henderson, because Sykes was married to Olberawhen Olbera gave birth to N.O.-B., Sykes is presumed tobe N.O.-B.s parent. Second, there is no risk that successfulrebuttal of the marital presumption would leave N.O.-B.without a second parent as both Sykes and Baker seek parentalrights. See Straub, 645 N.E.2d at 600 (“Any agreementpurporting to contract away [a child's right to receive supportfrom two parents] is directly contrary to this State's publicpolicy of protecting the welfare of children[.]”); see alsoSheetz v. Sheetz, 63 N.E.3d 1077, 1083 (Ind. Ct. App.2016) (applying equitable estoppel to prevent nonbiologicalhusband who had long held out child as his own fromrebutting the marital presumption and noting public policy didnot support leaving the child without a father).[35] In any event, the parties in this case unquestionablyfailed to enter into a valid sperm donor agreement. Olberawas inseminated via intercourse before she and Sykes marriedand during a period when all three parties were havingconsensual sex with each other. Moreover, there was nowritten agreement memorializing the parties’ intention thatN.O.-B. would be a child of Sykes and Olbera's marriageand that, as a consequence, Baker would relinquish all legalrights to the child. We find nothing in the record to reflect thatBaker ever explicitly or implicitly demonstrated an intentionthat his biological child would exclusively be considered achild of Sykes and Olbera's marriage or that he knowinglyand voluntarily relinquished his parental rights to the child.Indeed, the court's findings focused on the women's intent tothe exclusion of Baker's.*11 [36] Specifically, the trial court found that Olberaand Sykes wanted to have a child together and agreedto have Baker provide the sperm necessary to conceive achild. Despite the women's apparent understanding of thisarrangement, the parties all agreed that Baker would be part ofthe child's life because he wanted to be involved in the child'slife and they wanted the child to know his biological father.N.O.-B. was conceived prior to the marriage, shortly beforethe three labeled themselves “a throuple.” Tr. at 25. However,after Sykes and Olbera consulted an attorney toward the endof the pregnancy, Sykes came to believe they needed to marryto ensure her status as N.O.-B.’s parent. Sykes and Olberawere married just weeks before N.O.-B. was born, but Bakerwas present for his birth and the couple also gave him Baker'slast name. Sykes and Olbera lived with Baker for well overa year into N.O.-B.’s life, and Baker remained in the homefor a while even after Olbera moved to Texas. There was noindication that he ever entered into an informed agreement orotherwise intended the arrangement found by the trial court.In fact, Baker testified at the April 30, 2025 hearing that hetold Sykes and Olbera that he wouldn't “be a sperm donor[,]”and that he expected to “be a father to [his] child” from theoutset and had “been doing [that] ever since” N.O.-B. wasborn. Id. at 127.[37] We conclude that Baker met his burden to rebutthe marital presumption by “direct, clear, and convincingevidence.” Sheetz, 63 N.E.3d at 1080 (quoting Myers, 13N.E.2d at 482). Baker, as the biological father of N.O.-B.,never entered into an enforceable agreement with Sykes andOlbera to merely serve as a sperm donor and relinquish hisrights to legal parentage. There is no evidence from beforeN.O.-B. was conceived through the date of the joint hearing inthis matter that Baker intended such an arrangement or that heknowingly and voluntarily consented to give up his parentalrights to N.O.-B. Thus, the trial court clearly erred when itdetermined Sykes is N.O.-B.’s legal parent.Conclusion[38] We conclude that although Sykes was presumed to beN.O.-B.’s legal parent because he was born while she wasmarried to Olbera, Baker rebutted the marital presumptionand must be identified as N.O.-B.’s legal parent. Accordingly,we reverse the trial court's order dismissing Baker's petitionto establish paternity and remand for further proceedings inthat cause consistent with this opinion. We also reverse thetrial court's decree of dissolution to the extent it deemed N.O.-B. a child of Sykes and Olbera's marriage and its custodyand parenting time decisions that flowed from that erroneousfinding.15[39] Reversed and remanded with instructions.Brown, J., and Altice, J., concur.All Citations--- N.E.3d ----, 2026 WL 860644
Nicole Olbera, et al., Appellants v. Tiara Sykes, Appellee-Plaintiff, --- N.E.3d ---- (2026) © 2026 Thomson Reuters. No claim to original U.S. Government Works.9Footnotes1Throughout this opinion, we frequently use the terms “trial court” and “court” when referencing the actions of the lowercourt. We use these terms for ease of reference when no distinction is required between the actions of the dissolutioncourt and paternity court. Although these cases were not consolidated, the same judicial officer presided over most ofthe proceedings in both causes, held a joint final hearing, and issued final orders in both causes containing overlappingfindings implicated by this appeal.2The trial court's decree of dissolution and order dismissing Baker's petition to establish paternity include some facts thatwere established by evidence brought before the court prior to the joint final hearing. This is apparent because not allthe findings the court made in its final orders were evidenced at the final hearing, and certain findings contained in thecourt's prior orders were repeated in the final orders. See Appellants’ App. Vol. 2 at 56-67 (dissolution court's June 27,2024 order from the provisional hearing on April 2, 2024). Moreover, it appears Baker may not have been present whenthe evidence supporting those findings originally came before the court, and the appellate record does not contain thetranscripts of earlier hearings. But because the parties do not raise any concerns about these matters or challenge anyspecific findings of fact, our judgment does not hinge on these evidentiary issues.3We infer that Sykes used the word “throuple” to describe how the three referred to their relationship. A throuple is “a formof polyamorous relationship involving three people” in which all three persons are romantically involved with one another.Philip de Sa e Silva, Throuples and Family Law, 108 MINN. L. REV. 1559, 1560 (2024); see also Edward Stein, How U.S.Family Law Might Deal with Spousal Relationships of Three (or More) People, 51 ARIZ. ST. L.J. 1395, 1396 n.2 (2019).4Contrary to the requirements of Indiana Appellate Rule 9(F)(3), Appellants’ (Olbera and Baker's) notice of appeal onlydesignated the order dismissing the paternity action as the order being appealed, and not the decree of dissolution—which contains issues wholly intertwined with the paternity order. Because the order dismissing the petition to establishpaternity was included in the Appellants’ Appendix and is thoroughly addressed in both parties’ briefs, their error doesnot prevent us from reviewing the decree of dissolution. See Sumrall v. LeSEA, Inc., 234 N.E.3d 230, 241 (Ind. Ct. App.2024) (concluding that the appellant's failure to include a relevant order in his notice of appeal was not fatal where heincluded the order in his appendix and the opposing party addressed the applicable issue on appeal).5Sykes defends against this appeal pro se. “It is well settled that pro se litigants are held to the same legal standardsas licensed attorneys” and must accept the consequences of their failure to follow established rules of procedure. Basicv. Amouri, 58 N.E.3d 980, 983 (Ind. Ct. App. 2016), reh'g denied. Although we've identified multiple issues with Sykes’brief, such as her failure to include citations to the record in her statement of facts, her failure to support her argumentswith citations to relevant authority, and a citation to one seemingly hallucinated case (S.S. v. D.M., 150 N.E.3d 663 (Ind.Ct. App. 2020)), “we prefer to decide issues on the merits” and her noncompliance with our appellate rules has not been“so substantial as to impede our consideration of the issues[.]” Id.; see also Ind. Appellate Rules 46(A)(6)(a), 46(A)(8)(a), 46(B).6Olbera and Baker do not appeal the denial of Baker's motion to dismiss all child-related matters from the dissolution courtfor lack of subject matter jurisdiction. Below, Baker argued that the dissolution court lacked subject matter jurisdictionbecause he had established paternity through the Provisional Agreed Entry in the paternity court before the issue wasaddressed by the dissolution court. See Appellants’ App. Vol. 2 at 83-84.But this issue warrants some attention given our “duty to raise and determine the issue sua sponte if lack of subjectmatter jurisdiction in the original tribunal is apparent from the record.” Fox v. Nichter Const. Co., Inc., 978 N.E.2d 1171,1180 (Ind. Ct. App. 2012), reh'g denied, trans. denied. “The question of subject matter jurisdiction entails a determinationof whether a court has jurisdiction over the general class of actions to which a particular case belongs.” K.S. v. State, 849N.E.2d 538, 542 (Ind. 2006) (quoting Troxel v. Troxel, 737 N.E.2d 745, 749 (Ind. 2000), reh'g denied); see also Tingleyv. First Fin. Bank, Tr. of Land Tr. No. 428, 252 N.E.3d 428, 433 (Ind. 2025) (noting jurisdiction is often confused withother concerns). In this case, the Marion County Superior Court clearly had subject matter jurisdiction over issues relatedto N.O.-B. See Ind. Code § 33-29-1-1.5(1) (providing standard superior courts “original and concurrent jurisdiction in allcivil cases ...”); see also In re Paternity of G.S., 267 N.E.3d 1061, 1069 (Ind. Ct. App. 2025) (holding that the phrase
Nicole Olbera, et al., Appellants v. Tiara Sykes, Appellee-Plaintiff, --- N.E.3d ---- (2026) © 2026 Thomson Reuters. No claim to original U.S. Government Works.10“jurisdiction over the child” as used in a family law statute “refers to the now abolished ‘jurisdiction over the particular case’” (first quoting I.C. § 31-19-2-14 and then quoting Packard v. Shoopman, 852 N.E.2d 927, 930 (Ind. 2006))), trans. denied.Thus, to the extent there were procedural irregularities attendant to the concurrent dissolution and paternity proceedings,those irregularities did not go to those courts’ fundamental power to hear the cases. Because subject matter jurisdictionis not at issue and the parties do not dispute on appeal whether the dissolution or paternity court had authority to makedecisions related to N.O.-B., we do not sua sponte address whether either the paternity or dissolution court was precludedfrom making decisions related to the child because the issue was already pending before the other court . See generallyVarble v. Varble, 55 N.E.3d 879 (Ind. Ct. App. 2016) (surveying case law on the issue of authority between dissolutionand paternity courts), trans. denied.7In light of this conclusion, we need not address Baker's arguments that (1) he furnished support to N.O.-B. because helived in the home with him for more than a year after he was born, and (2) his last name on N.O.- B.’s birth certificateconstituted a written acknowledgment that he was N.O.-B.’s biological father.8Judge Easterbrook also made clear that because “[n]o biological father [was] a litigant[,]” the Seventh Circuit's opinion“d[id] not decide what parental rights and duties (if any) biological fathers such as sperm donors have with respect to thechildren of female-female marriages.” Henderson, 947 F.3d at 488.9N.O.-B. was conceived before Olbera and Sykes were married. However, by its terms, the marital presumption is notlimited to children who are both conceived and born during the marriage, and we assume the Legislature would haveincluded a conception requirement had it intended the statute to operate as such. See ESPN, Inc. v. Univ. of Notre DamePolice Dep't, 62 N.E.3d 1192, 1195 (Ind. 2016) (“As we interpret [a] statute, we are mindful of both ‘what it does say’ andwhat it ‘does not say.’ ” (quoting Mi.D. v. State, 57 N.E.3d 809, 812 (Ind. 2016))).10See Douglas NeJaime, The Nature of Parenthood, 126 YALE L.J. 2260, 2290 (2017) (“[T]ethering parenthood to biologicalties perpetuates the exclusion of same-sex couples, who necessarily include a parent without a gestational or geneticconnection to the child.”); see also Nancy D. Polikoff, Response: And Baby Makes ... How Many? Using In re M.C. toConsider Parentage of a Child Conceived Through Sexual Intercourse and Born to a Lesbian Couple, 100 GEO. L.J.2015, 2027, 2045 (2012) (“If biology rebuts a parentage presumption, then a couple—gay or straight—committed toraising a child together in a family unit can be denied the opportunity to provide that stable structure for the child.... Eitherspouse could disestablish the nonbiological mother's parentage on that basis, as could a biological father.”).11For purposes of this case, we need not decide whether Indiana law recognizes an expanded concept of intent-basedparentage. See Glover v. Junior, 333 A.3d 323, 327, 356 (Pa. 2025) (recognizing intent-based legal parentage in additionto parentage by biology, adoption, equity, and contract where a child is born using assistive reproductive technology).However, in addition to the absence of an enforceable sperm donor agreement, we find it relevant to note that there isa lack of evidence that it was ever Baker's intention to disavow that N.O.-B. was his child. When parentage is disputedin two persons and there is no possibility that the child may be left without a parent, it becomes even more importantto accurately identify the person with whom parental rights lie. See Troxel v. Granville, 530 U.S. 57, 65 (2000) (findingthat a parent's interest “in the care custody, and control of their children [ ] is perhaps the oldest of the fundamentalliberty interests”).12We recognize that the mother in Paternity of M.F. also sought to establish paternity in father for her second-born child whowas also determined to be father's biological child. 938 N.E.2d at 1258. Although not relevant to this appeal, the appellatepanel reversed the trial court as to the second child because unlike M.F., the terms of the sperm donor agreement didnot unambiguously disclaim father's parentage of that child. Id. at 1262-63. We also note that there is no indication thatparental rights to M.F. were established in the mother's former female partner following the mother's failed attempt toestablish paternity in the child's biological father.13We observe that unlike the biological mother in M.F., who sought to hold a sperm donor agreement unenforceable toobtain financial support from the biological father, Kristy (the biological mother) attempted to render a similar agreementunenforceable between herself and her former same-sex partner to exclude her former partner from legal parentage.
Nicole Olbera, et al., Appellants v. Tiara Sykes, Appellee-Plaintiff, --- N.E.3d ---- (2026) © 2026 Thomson Reuters. No claim to original U.S. Government Works.1114In a footnote, the Gardenour panel “acknowledge[d] in both Levin and Engelking, the non-biological parent sought toavoid parental rights and obligations whereas Denise [was] a non-biological parent seeking to receive parental rights andobligations.” 60 N.E.3d at 1119 n.4. While that distinction rendered the Gardenour case “unique[,]” it did not “change thelaw applicable to th[e] situation[.]” Id.15From our review of the record, it does not appear that Sykes was ordered to pay child support. See Appellant's App.Vol. 2 at 108 (decree of dissolution noting that “[t]he [p]arties did not offer any evidence related to child support” at thejoint final hearing).End of Document© 2026 Thomson Reuters. No claim to original U.S.Government Works.
ProvenanceKnow exactly where this document came from.Members see the sourcing behind every authority on DocPost — so you can check the record yourself and cite with confidence.Request access