There’s a new case from the New Mexico Supreme Court that gives me an opportunity to revisit a topic I’ve written quite a bit about before, though it has been a while since I’ve written about an intra-lesbian dispute over parentage. This is one of those cases that fall into a regrettably common pattern, though as is always the case, there are a few specific twists. I’m happy to say that this is also a case where I think the court ultimately got it right.
Bani Chatterjee and Taya King were a lesbian couple. During their relationship King adopted a child from Russia. Though legally King alone adopted the child, the adoption was in reality a joint project of the women who wanted to raise a child together. (I’m sure the women would not have been allowed to adopt jointly in Russia, so it pretty much had to be one or the other of them. I do not know whether NM law permits second-parent adoption and, given the reasoning of the court, it doesn’t matter.)
King and Chatterjee lived together and co-parented for a number of years before their relationship deteriorated. At that point, King moved to Colorado and tried to prevent Chatterjee from having any contact with the child. Essentially King asserted that Chatterjee, who had not adopted the child, was not a parent and hence had no right to a continuing relationship with the child if she (King–who is clearly a legal parent) didn’t want it to continue.
I’ll pause here to note a two important points. First, for now the facts are taken as Chatterjee gives them because King has not yet had to take any position on the facts. Her assertion was that Chatterjee had no rights no matter what the facts. Second, you can see the power of legal parentage embedded in the case–because King is a parent she (as a general matter) has a right to decide who the child sees and who the child does not see.
Faced with King’s unwillingness to allow contact, Chatterjee went to court. She asserted that she, too, had rights as a parent even in the absence of an adoption. Her theory was that under New Mexico law a man who behaved as she did would have had status as a parent via the holding out provision of NM law. Further, NM has a provision that provides that, to the extent possible, men and women will be treated similarly in family law matters. Thus, Chatterjee (a woman) should have the ability to claim rights under the holding out provision.
The New Mexico Supreme Court accepted this argument. The statutory structure directs that “insofar as practicable” the provisions for a father/child relationship should apply to a mother/child relationship. Applying the holding out provision to Chatterjee is practicable and thus, is required. Once you allow Chatterjee to invoke the holding out provision, the case isn’t very close.
That “insofar as practicable” language is quite interesting if you think about it. We know that men and women are different with regard to conception/pregnancy. Law makes some of these differences important–giving birth, for example, can establish maternity but not, I assume, paternity. The language I quoted is a way of avoiding the difficult task of figuring how much the differences between men and women will really matter in parentage law. It in effect kicks the problem down the road to be resolved in cases like this one.
I’m going to stop here–I may come back tomorrow or even later today with more to say, though. One closing note: Interestingly, not only is Chatterjee a parent, she is a natural parent. This may seem odd given that many people probably assume that a natural parent means a biological parent. But, as I’ve noted in the past, I don’t think this is the legal meaning of “natural parent.” See section III of the opinion. A natural parent is a person who has legal recognition as a parent automatically without having to go to court to seek that status. Thus, natural parent is a non-adoptive parent. While it is true that in some instances a genetic parent can be a natural parent, non-genetic parents can also be natural parents. Chatterjee, for instance, is a natural parent because once one completes the required actions of holding out, parentage attaches automatically.