As I wrote a couple of posts back, the New Mexico Supreme Court recently issued an important new decision in a case called Chatterjee v. King. A lesbian couple wanted to raise a child and decided to adopt a child from from Russia. Only one of them legally adopted the child and, when the women split up, the legal status of the second woman was at issue. (Russia would not have permitted the women to adopt jointly.) The NM Supreme Court recognized the second woman as a parent as well using a doctrine called “holding out.” For more detailed discussion, do go read that earlier post.
There’s an interesting concurrence as well. The author, Justice Bosson, is concerned about the application of the holding out doctrine to a range of circumstances. In order to explore Bosson’s points I felt I needed to discuss what the difference between Chatterjee’s position and someone we might call a step-parent, which was the point of my most recent post.
Now to the concurrence. Justice Bosson has a hypothetical that warrants attention, so I’ll just quote it, even though it is long:
Suppose a hypothetical Mother has two children with men who are no longer involved in their lives for whatever reason, including death. Eventually, Mother begins a serious relationship with a hypothetical Man who moves in and lives happily with Mother and her two young children. Man assists in financial aspects of the household, which almost automatically includes expenses that support the children. At times he refers to himself as the children’s father, for example in conversations with neighbors, perhaps on school documents and so forth, either for convenience purposes or perhaps because he truly does wish to become the children’s father. Mother may or may not know that Man refers to himself in this way, but we will assume she does. Mother actively considers the possibility of marriage and that some day Man might adopt her two children.
After a few years, however, the relationship sours, and Mother asks Man to leave. It is over. But Man decides he does not want it to end entirely; he wants to share legal custody over the two children. Perhaps his motives are pure; perhaps he is just vindictive and extortionate. Whatever the motive, he alleges standing as a presumed father who has held out the children as his “own” and has established a financial, personal, and custodial relationship with them. He files in court and, as a presumed father, demands a full-blown custody hearing to prove his merits. The best interests of the children, he argues, require his presence in their lives, and Mother, whether out of spite or sincerity, is not acting in a manner consistent with those best interests. Mother finds herself in a custody battle to retain control over her own children.
Justice Bosson goes on to consider whether the legal analysis for this man should be the same as it was for Chatterjee. In essence, I’d say he is considering the application of holding out to a step-parent. (Even if we didn’t totally agree on what a step-parent was in the last post, I think we could all agree that this man is in that category.)
I think Justice Bosson is generally concerned about the erosion of parental rights held by King. When Chatterjee is recognized as a parent, King’s rights are diminished. Where once she had sole parental rights, now they are shared parental rights.
Similarly, in the hypothetical above, Mother has exclusive parental rights. Should Man also have some sort of rights, it necessarily diminishes Mother’s rights.
If you think about it, where two people enter into parenthood together–as was the case with Chatterjee and King, as far as we can tell–there shouldn’t really be a problem. Practically speaking, Chatterjee and King assumed parental responsiblities at the same time and they were shared from the get-go. It’s only in the form-over-substance world that King has rights that are diminished by Chatterjee.
But this isn’t true in the hypothetical. In a real world sense, Mother begins with sole parental rights and the assertion of rights by Man diminishes them. This at least ought to make us stop and think.
I won’t go much further today, but for one more note. As Justice Bosson observes, Man may act as he does here for a variety of reasons. Perhaps he acts out of spite (which is to say, out of a desire to hurt Mother). Perhaps he acts out of genuine affection for/attachment to the children.
Should we care why he acts as he does? Is motive important in determining the outcome? And is it true in reality (as opposed to simply in theory) that he might act for either of these sorts of reasons. I suppose what I am wondering in part here is whether a man would agree to an obligation to pay child support just to spite the mother.
More on this next time.