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!
Showing posts with label New Mexico. Show all posts
Showing posts with label New Mexico. Show all posts
Friday, June 1, 2012
Friday, January 7, 2011
New Mexico update -- Republican governor may repeal domestic partner benefits
One day after New Mexico Attorney General Gary King released an opinion that same-sex marriages performed elsewhere would be recognized in New Mexico, the new Republican governor, Susana Martinez, said she is reviewing whether to eliminate domestic partner benefits for state employees. Both same-sex and different-sex couples receive those benefits, as a result of an executive order signed by Governor Bill Richardson in 2003.
Equality New Mexico says 2300 employees get those benefits, although that number sounds very high to me. When the Arizona legislature eliminated domestic partner benefits for its state employees (also both same-sex and different-sex), it affected about 800 people, and Arizona's population is so much larger than New Mexico's that I expect its state workforce is also much larger.
The Arizona legislation met with an immediate court challenge by Lambda Legal, but only on behalf of the same-sex state employees, something I criticized in this post. Lambda obtained a injunction at the District Court level that has kept the benefits in place, but the state appealed and oral argument in the Ninth Circuit is set for February 14.
No newspaper coverage I've seen has linked Martinez's announcement to the release of the AG opinion, but I read it as escalating her opposition to gay rights in the state.
Equality New Mexico says 2300 employees get those benefits, although that number sounds very high to me. When the Arizona legislature eliminated domestic partner benefits for its state employees (also both same-sex and different-sex), it affected about 800 people, and Arizona's population is so much larger than New Mexico's that I expect its state workforce is also much larger.
The Arizona legislation met with an immediate court challenge by Lambda Legal, but only on behalf of the same-sex state employees, something I criticized in this post. Lambda obtained a injunction at the District Court level that has kept the benefits in place, but the state appealed and oral argument in the Ninth Circuit is set for February 14.
No newspaper coverage I've seen has linked Martinez's announcement to the release of the AG opinion, but I read it as escalating her opposition to gay rights in the state.
Wednesday, January 5, 2011
New Mexico may be heading for showdown over marriage recognition
New Mexico elected a Republican governor, Susana Martinez, who took office earlier this week. Now the state's Democratic Attorney General, Gary King, has issued an opinion that marriages of same-sex couples performed where legally allowed will likely to considered valid marriages in New Mexico. He cited as support a 20-year-old court ruling that a marriage between an uncle and a niece, valid where performed, was not so against public policy even though such a marriage would be a crime in New Mexico.
A spokesperson for Governor Martinez has already issued a statement that Martinez made it clear during the campaign that she opposes same-sex marriage and that no court has ruled on the issue of recognition of those marriages from elsewhere. And a Republican Senator has already said that he will push for a constitutional amendment barring recognition of same-sex marriages. New Mexico has neither a statute nor a constitutional amendment barring same-sex marriages performed elsewhere. This puts it in a position similar to that of Maryland, whose attorney general issued an opinion reaching the same conclusion last February. But Maryland had -- and has -- a Democratic governor. If Gov. Martinez wants to restrict administrative recognition of same-sex marriages from elsewhere, she may well be able to force couples who seek that recognition into court.
When Bill Richardson was governor, he made strong efforts to get the legislature to pass a comprehensive domestic partnership law. He was unsuccessful.
A spokesperson for Governor Martinez has already issued a statement that Martinez made it clear during the campaign that she opposes same-sex marriage and that no court has ruled on the issue of recognition of those marriages from elsewhere. And a Republican Senator has already said that he will push for a constitutional amendment barring recognition of same-sex marriages. New Mexico has neither a statute nor a constitutional amendment barring same-sex marriages performed elsewhere. This puts it in a position similar to that of Maryland, whose attorney general issued an opinion reaching the same conclusion last February. But Maryland had -- and has -- a Democratic governor. If Gov. Martinez wants to restrict administrative recognition of same-sex marriages from elsewhere, she may well be able to force couples who seek that recognition into court.
When Bill Richardson was governor, he made strong efforts to get the legislature to pass a comprehensive domestic partnership law. He was unsuccessful.
Sunday, December 27, 2009
Contemplating gay and lesbian families in New Mexico in 2010
I'll be heading home to DC tomorrow from our annual end-of-year sojourn to our second home in Las Cruces, NM. There's lots to keep an eye on in New Mexico in the coming weeks.
On January 1, 2010, New Mexico's new parentage laws go into effect. Read Sections 7-703 & 704 of the new statute. It says that "a person who...consents to assisted reproduction...with the intent to be the parent of a child is a parent of the resulting child." The consent is supposed to be in writing before the assisted reproduction takes place. If the requisite written consent does not take place, the intended parent is still a parent "if the parent, during the first two years of the child's life, resided in the same household with the child and openly held out the child as the parent’s own."
New Mexico thus becomes the second jurisdiction in the country to recognize the parentage of the same-sex partner of a woman who conceives through donor insemination. The District of Columbia was the first. Because the DC statute also amended the law governing birth certificates, lesbian couples in DC can now receive a birth certificate naming both women as parents. It remains to be seen whether New Mexico will make it easy for lesbian couples to obtain original birth certificates listing both moms. Otherwise, the couple will need to seek a parentage order from a court. Even if the birth certificate does list both moms, the couple should get a court order of parentage or adoption to guarantee that other states will recognize both women as parents. As I've said about lesbian moms in DC, only a court order is entitled to "full faith and credit" in other states.
As for couple recognition, New Mexico is one of a small handful of states that has no "defense of marriage act." But it also has no legal status available to same-sex couples. There will be numerous opportunities for the state and the courts to determine whether same-sex couples married elsewhere will be recognized as married in New Mexico. Albuquerque attorney N. Lynn Perls reported earlier this year that when a child is born to a lesbian couple married elsewhere the state will issue a birth certificate naming both women as parents if there is also evidence of no other parent (meaning, I assume, proof of anonymous donor insemination or perhaps known donor insemination in a state that makes clear the donor is not a parent).
Governor Bill Richardson supports domestic partnership legislation, but the bill introduced in the 2009 legislative session failed. Rumor has it he will try again. This year's session is only 30 days (January 19 to February 18) so the suspense won't last long. To date, no DP bill has been pre-filed. (A DOMA bill has been pre-filed, calling for a vote on a constitutional amendment stating that marriage is only between a man and a woman; no one thinks there's danger of that bill passing.) Equality New Mexico will be front and center on these legislative issues.
Meanwhile, when discussing New Mexico I always like to mention that unmarried partners are entitled to make medical decisions for each other here, even without medical powers of attorney. If a person isn't married, top priority in the absence of a medical power of attorney goes to "an individual in a long-term relationship of indefinite duration with the patient in which the individual has demonstrated an actual commitment to the patient similar to the commitment of a spouse and in which the individual and the patient consider themselves to be responsible for each other's well-being." (That's N.M. Stat 24-7A-5). New Mexico also allows an unmarried partner to recover damages under certain circumstances if his or her partner dies as the result of someone's negligence. This makes New Mexico one of the states that sometimes values all families, along the lines I advocate in my book.
On January 1, 2010, New Mexico's new parentage laws go into effect. Read Sections 7-703 & 704 of the new statute. It says that "a person who...consents to assisted reproduction...with the intent to be the parent of a child is a parent of the resulting child." The consent is supposed to be in writing before the assisted reproduction takes place. If the requisite written consent does not take place, the intended parent is still a parent "if the parent, during the first two years of the child's life, resided in the same household with the child and openly held out the child as the parent’s own."
New Mexico thus becomes the second jurisdiction in the country to recognize the parentage of the same-sex partner of a woman who conceives through donor insemination. The District of Columbia was the first. Because the DC statute also amended the law governing birth certificates, lesbian couples in DC can now receive a birth certificate naming both women as parents. It remains to be seen whether New Mexico will make it easy for lesbian couples to obtain original birth certificates listing both moms. Otherwise, the couple will need to seek a parentage order from a court. Even if the birth certificate does list both moms, the couple should get a court order of parentage or adoption to guarantee that other states will recognize both women as parents. As I've said about lesbian moms in DC, only a court order is entitled to "full faith and credit" in other states.
As for couple recognition, New Mexico is one of a small handful of states that has no "defense of marriage act." But it also has no legal status available to same-sex couples. There will be numerous opportunities for the state and the courts to determine whether same-sex couples married elsewhere will be recognized as married in New Mexico. Albuquerque attorney N. Lynn Perls reported earlier this year that when a child is born to a lesbian couple married elsewhere the state will issue a birth certificate naming both women as parents if there is also evidence of no other parent (meaning, I assume, proof of anonymous donor insemination or perhaps known donor insemination in a state that makes clear the donor is not a parent).
Governor Bill Richardson supports domestic partnership legislation, but the bill introduced in the 2009 legislative session failed. Rumor has it he will try again. This year's session is only 30 days (January 19 to February 18) so the suspense won't last long. To date, no DP bill has been pre-filed. (A DOMA bill has been pre-filed, calling for a vote on a constitutional amendment stating that marriage is only between a man and a woman; no one thinks there's danger of that bill passing.) Equality New Mexico will be front and center on these legislative issues.
Meanwhile, when discussing New Mexico I always like to mention that unmarried partners are entitled to make medical decisions for each other here, even without medical powers of attorney. If a person isn't married, top priority in the absence of a medical power of attorney goes to "an individual in a long-term relationship of indefinite duration with the patient in which the individual has demonstrated an actual commitment to the patient similar to the commitment of a spouse and in which the individual and the patient consider themselves to be responsible for each other's well-being." (That's N.M. Stat 24-7A-5). New Mexico also allows an unmarried partner to recover damages under certain circumstances if his or her partner dies as the result of someone's negligence. This makes New Mexico one of the states that sometimes values all families, along the lines I advocate in my book.
Subscribe to:
Posts (Atom)