In a unanimous opinion, the New Mexico Supreme Court ruled today in Chatterjee v. King that a nonbiological, nonadoptive mother has standing to pursue joint custody of her child. In 2010, I wrote here about the Court of Appeals ruling that Bani Chatterjee could not pursue custody of her child; that decision was reversed today. To briefly recount the alleged facts, Chatterjee and her former partner, Taya King, began their committed relationship in 1993. In 2000, they travelled to Russia, where King adopted a child who was intended to be the child of both of them. The couple lived with the child and co-parented her as two mothers until 2008, and the child had a last name combining both women's names. When their relationship ended, King moved away and prevented the child from seeing Chatterjee.
New Mexico has a version of the Uniform Parentage Act that creates a presumption of parentage for a man who holds a child out as his own, and that allows a woman to establish maternity in any way a father can establish paternity when that is "practicable." The court accepted as the definition of "practicable" something that is "reasonably capable of being accomplished." Because it is practicable for a woman to hold a child out as her own, that method of establishing presumed parentage is available to a woman. The court also noted, I am happy to say, that a contrary ruling might be unconstitutional sex discrimination, something I have long believed. The court specifically said that a contrary ruling would allow a man in a same-sex relationship to establish his parentage based on "holding out," but not a woman in a same-sex relationship.
The court cited decisions from several other states that have interpreted similar provisons of their UPA, including California and Colorado, which I wrote about here. It also cited an Oregon case, which I wrote about here, because that case applied a statutory presumption of a man's parentage if he consents to his wife's insemination to a claim by a lesbian ex-partner based on her consent to her partner's insemination.
The court also found its reasoning consistent with public policy. A child has no less need for love and support, it ruled, just because her second parent is also a woman; attachment bonds exist regardless of biological or legal connection; and "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 children born into them."
Finally, the court made clear that although there is a parental preference in determining custody, that does not apply between two parents. Therefore it does not apply here.
To be clear about the status of this case, Chatterjee's complaint alleged facts sufficient to show her presumed parentage, but because her case was dismissed she has not yet been required to prove those facts at a trial. Unless the parties reach an agreement on custody, that will be Chatterjee's next step.
One Justice wrote a concurring opinion. He agreed that Chatterjee's allegations made her a presumed parent but sought to limit the reach of the case to prevent someone coming into a child's life at a much later date, and not recognized as a parent by the child's and the child's family, from claiming presumed parentage. His concern was based entirely on the scenario of a man entering the picture, living with a woman and her children, and later claiming parentage and asking for custody (or having parentage claimed against his by the mother seeking child support).
Finally, a note on current New Mexico law. The state has adopted a new UPA since the one in effect when Chatterjee filed. Now a person claiming "holding out" parentage must live with the child during the first two years of the child's life. Chatterjee could meet that standard, as could all couples who plan for a child together and stay together until the child is two. If the couple splits up before that time, the partner who did not give birth to or adopt the child may face an obstacle to maintianing parentage. BUT, and this is HUGE, the recent New Mexico UPA also states that a person (gender and marital status-neutral) who consents to a woman's insemination with the intent to be a parent is a parent. So for children conceived through donor insemination, the nonbio mom will not need to rely on the "holding out" provision and will not need to worry about the meaning of the two-yea requirement. Rather, she will be a parent from the moment the child is born (conceived, really). The fact that the New Mexico Supreme Court interpreted the words of the UPA according to their plain meaning removes all doubt that it will do the same if asked to determine whether the donor insemination provision really creates parentage for both women in a lesbian couple.
Congratuloations to New Mexico attorney Lynn Perls and Shannon Minter and Cathy Sakimura at the National Center for Lesbian Rights for a huge win!
