Not long along the New Mexico Supreme Court handed down the decision of Chatterjee v. King, a case that reflects the changing nature of the child custody discussion in this country.
The parties involved were two women who were in a long-term committed relationship. As time went on, they decided to bring a child into that relationship. They turned to a foreign adoption, but the strict laws of that country made it impossible for the women to jointly adopt a child, so the child was legally adopted by K. The child was cared for in their joint home by both women, and both supported the child financially. Ultimately, however, the relationship between the two deteriorated and K left the home and took the child to Colorado where she tried to prevent C from having any contact with the child.
C filed a petition to establish parentage, determine custody and timesharing under the New Mexico Uniform Parentage Act. [Note: the New Mexico Uniform Parentage Act was recodified in 2010 during the pendency of this suit, and certain provisions were changed; the court noted however, that their decision in this case would not have been impacted by those changes]. C argued she openly held out the child as her own and established a personal, financial or custodial relationship with the child and thus was presumed to be a legal parent. The Court of Appeals held only fathers could establish parentage based upon the facts presented.
The Supreme Court rules:
The UPA provided a man is the natural father of minor child if he “openly holds out the child as his natural child and has established a personal, financial, or custodial relationship with the child.”
The New Mexico Supreme Court found this presumption to be based on a person’s conduct, not a biological connection, and thus a woman was capable of holding out a child as her natural child and establishing a personal, financial, or custodial relationship with that child. The Court emphasized it is a principle of statutory construction that statutes should be construed, if possible, to avoid constitutional questions and referred to an earlier decision where the Court held classifications based on gender are presumptively unconstitutional. C was, therefore, entitled to be recognized as a parent and have an equal right to custody.
Child custody cases no longer always involve a man and woman having a child in wedlock—an increasing number of children are being born out of wedlock and more children are being born or adopted by same-sex couples. The issues involved can be challenging and are certainly evolving and representation by an experienced New Mexico family law attorney is important.