New Mexico Supreme Court Adds Protections for Children of Same-Sex Parents
June 4, 2012 by Sarah Warbelow, State Legislative Director
Last Friday, the Supreme Court of New Mexico granted important new protections to non-biological mothers who raise children within same-sex relationships. The Court’s ruling allows a woman who has assumed financial and parental responsibility for a child that she raised with another woman to be the legal parent of that child regardless of biology. This “presumption of paternity” is often used in family law to protect fathers who, usually after dissolving their marriage, find out that they are not their child’s biological parent. Though this presumption has traditionally been applied only to men, the Court’s new ruling extends these protections to non-biological mothers under New Mexico Law.
The National Center for Lesbian Rights successfully represented Bani Chaterjee, a woman who had been in a committed, long-term relationship with her partner Taya King. During the course of their relationship, the two women decided to adopt a child through international adoption. When joint adoption was not a possibility due to policies which discriminate against same-sex couples, only Taya legally adopted their daughter. Even though the name on the adoption certificate was Taya’s, Bani supported both Taya and their child financially, lived in the family home, and co-parented her daughter for a number of years before her relationship with Taya was dissolved. After their relationship ended, Taya moved their daughter to Colorado to keep Bani from having contact with her.
Bani filed a petition in the district court to establish custody and determine parentage, relying on the New Mexico Uniform Parentage Act to claim that she was presumed to be the child’s natural parent. Absent such a presumption, Bani would be considered a third party and could seek custody of the child that she raised only if she could prove that Taya was an unfit parent. After the district court dismissed Bani’s petition, the Court of Appeals held that only fathers can establish parentage based on the facts presented and that Bani lacked the standing to seek joint custody without a showing that Taya was an unfit parent. It was not until the Supreme Court of New Mexico heard her case that Bani’s status as a legal parent was finally recognized. This decision correctly interprets New Mexico law and promotes good public policy, encouraging the support of children, financial or otherwise, by the loving providers willing and able to care for them regardless of biology.
McCleary Law Fellow Mandy Finlay contributed to this post.
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