As a guardian ad litem (GAL) and domestic relations mediator in New Mexico, I take special interest in unusual court cases involving children. In Chatterjee v. King, 2011-NMCA-012 (cert granted Jan. 27, 2011, No. 32,789), the State Court of Appeals has recently issued a controversial and hotly disputed ruling regarding the custody rights of non-adoptive domestic partners.
After careful statutory analysis, the majority concluded that Sec 40-4-9.1(K) of the State's domestic relations code limits standing in a custody case to natural and adoptive parents, absent a showing of unfitness of the natural or adoptive parent. As a result, a domestic partner who alleges active, continued involvement in the child’s life and a parent-child bond with the child, but does not demonstrate a prima facie case of unfitness, lacks standing to petition for custody.
The Court rejected the arguments of the Petitioner and the minority that this case presented "extraordinary circumstances" that could expand standing under Sec. 40-4-9.1(K), pursuant to the authority of case law. See In re Adoption of JJB, 119 NM 638 (1995). It concluded that "Petitioner's allegation of psychological harm" resulting from the forcible break in the parent-child relationship, did not "rise[] to the level of extraordinary circumstances contemplated" in In re JJB. Marlene C., at Para. 24.
On the bright side for non-adoptive partners, the Court of Appeals did conclude that one who alleges active, continued involvement in the child’s life and a parent-child bond with the child nonetheless does have standing to assert visitation rights. The Court determined that "[t]he Legislature has not limited standing for visitation in the same way that it has for custody in Section 40-4-9.1(K)." Id. at Para. 34.
It will be very interesting to see what the Supreme Court does with this case on review.
In the meantime, if you are interested in child-related mediation or GAL (guardian ad litem) services, please contact Pilar Vaile, P.C. at (505) 247-0802, or info@pilarvailepc.com.
