New Mexico Supreme Court Follows Emerging Majority Trend on Co-Parent Custody

The New Mexico Supreme Court unanimously ruled in Chatterjee v. King (June 1, 2012) that a lesbian co-parent could pursue joint custody of the child who was adopted by her same-sex partner, where she had held herself out as a parent of the child from the time of the adoption and had fulfilled that role during the early years of the child's life.  Reversing the court of appeals and the trial court on this point, the court held that the definition of "natural parent" under the N.M. Uniform Parentage Act could include the same-sex partner of an adoptive parent, rejecting the view that only a biological or adoptive parent can be a "natural parent."  A "natural parent" has standing as an "interested party" to seek custody of a child without having to show that the child's biological or adoptive parent is "unfit."

The court of appeals had previously reversed the trial court's dismissal of Bani Chatterjee's petition as to visitation, and on remand the trial court found visitation to be in the best interest of the child.  However, Chatterjee pursued the appeal to the Supreme Court in order to vindicate her claim that she could seek joint custody as well.  Joint custody would give her a legal role in decision-making for the child, whereas visitation would give her only a right to continued contact.

The opinion by Justice Edward L. Chavez is based heavily on the California Supreme Court's landmark decision in Elisa B. v. Superior Court, 117 P.3d 660 (2005), which construed the California UPA's paternity provision to be open to a gender neutral construction, looking to the drafting history of the UPA and the policy underlying the statute of seeking to recognize the reality of family life and the need to bolster the best interests of children by preserving parental ties.  Justice Chavez noted that Colorado and Oregon courts have followed the reasoning of Elisa B. as well, and it is consistent with some lower court precedent in New Mexico.

The court concluded that such a result was also "consistent with the underlying policy-based rationale of the New Mexico UPA that equality in child welfare requires laws that achieve equality in parentage."  Wrote Justice Chavez, "Child's need for love and support is no less critical simply because her second parent also happens to be a woman.  Experts in child psychology recognize that sometimes the law is too limiting when it comes to actually addressing what is in the child's best interests.  The attachment bonds that form between a child and a parent are formed regardless of a biological or legal connection."  Further, "The law needs to address traditional expectations in light of current realities to keep up with the changing demographic of American families and to protect the children born into them."

The court concluded that denying Chatterjee the "opportunity to establish parentage" would "only serve to harm both Child and the state. . .  Therefore, we hold that the Legislature intended that Section 40-11-5(A)(4) [the paternity provision] be applied to a woman who is seeking to establish a natural parent and child relationship with a child whom she has held out as her natural child from the moment the child came into the lives of both the adoptive mother and the presumptive mother."

Turning to Chatterjee's factual allegations, which the court stated would, if proven true, be sufficient to give her the status of a "natural parent" and thus equal standing in a custody contest, the court summarized them as follows: "In her complaint, Chatterjee alleged that she and King were in a committed relationship from 1993 to 2008; she traveled with King to Russia to adopt Child during that relationship in 2000; she has openly held Child out to the world as her daughter ever since Child arrived in New Mexico from Russia; Child believes that Chatterjee is her parent; Child lived with both Chatterjee and King in the same house from May 2000 through August 2008; and Chatterjee provided financial and emotional support to both King and Child throughout this time period.  These allegations satisfy a presumption of natural motherhood. . ."  After the relationship of the parents "foundered," King moved with the Child to Colorado and cut off contact between the child and Chatterjee.

If Chatterjee is found to be a "natural mother," she would not have to show that King is an "unfit parent" in order for Chatterjee to be awarded custody.  The lower courts had raised the failure of Chatterjee to allege that King was an unfit parent as a barriet to her quest for joint custody.  The court held that the trial court erred by relying on a dictionary to determine the criteria for a "natural mother," pointing out that dictionary definitions are not relevant where a statutory scheme provides its own definition of a word or phrase.

Although the court was unanimous as to the result, Justice Richard C. Bosson wrote a separate concurring opinion stating concern that the court's opinion, if construed too broadly, might authorize inappropriate persons to seek custody.  In a lengthy discussion, he proposed a narrower reading of the statute to avoid such situations.  He referred to "the new model UPA" and a nine-factor factual test to  determine whether somebody who is neither a biological nor an adoptive parent should be able to seek custody upon the dissolution of a relationship with the biological or adoptive parent.  From the court's recitation of Chatterjee's factual allegations, it appears that she would fare well under the more detailed factual test.

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