As a guardian ad litem (GAL) and domestic relations mediator in New
Mexico, I take special interest in unusual court cases involving
children. In an important victory for same-sex parents, the Supreme Court recently reversed the Court of Appeals and held that a domestic partner and non-biological parent had plead sufficient facts to confer standing as a natural parent--and therefore to seek custody--where she alleged she held child out as her own by providing full-time emotional and financial support. Chatterjee v. King, 2012-NMSC-019.
In March of 2011, I wrote about Chatterjee v. King, 2011-NMCA-012, in which a Court of Appeals "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."
Thereafter, the matter was remanded. The District Court appointed a GAL and accepted the GAL's recommendation that contact and visitation with Chatterfjee would be in the child's best interests.
The question on final appeal to the Supreme Court was Chattejee's standing to seek custody. The Court held that a natural mother is an interested party with standing to pursue joint custody. It went on to conclude that the provisions of the Uniform Parentage Act that permit a presumption of fatherhood based on holding a child out as your own, must apply to women as well as to men. Section 40-11-4(A) provides that "the natural
mother may be established by proof of her having given birth to the
child, or as provided by Section [40-11-21]." Section 40-11-21 provides that "[a]ny interested party may bring an action to determine the existence or nonexistence of a mother and child relationship. Insofar as practicable, the provision of the [UPA] applicable to the father and child relationship apply."
The Court reasoned that "any interested person" was intended to be applied broadly, to promote the "strong public policy favoring child support." Here, Chatterjee plead holding the child out as her own in keeping with the factors identified in the "hold out provision" for fathers, § 40-11-5(A)(4), by "establish[ing] a personal, financial or custodial relationship with the child." As noted, the UPA requires courts to apply this provision relating to the father to women, when practical to do so.
The Supreme Court rejected the Court of Appeals conclusions that applying § 40-11-5(A)(4) rendered § 40-11-4(A) surplusage, and that the Legislature "created separate sections
for how a woman as opposed to a man can prove natural parenthood, implying that it intended each sex to have different means available for proving parenthood." 2011-NMCA-012, ¶ 12. However, it is "practicable" to apply the "hold out provision" to women, because this has nothing to do with biology. Additionally, the Court of Appeal's interpretation "renders meaningless the clear instruction in Section 40-11-4(A) that a 'natural mother may [also] be established ... as provided by Section 21." 2012-NMSC-019, ¶ 16.
The Court also noted that this decision is consistent with that in other jurisdictions and the strong public policy of providing for child support. Notably, the Court rejected the idea that "natural" and "biological" are synonymous terms as used in the NM UPA.
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.
