NM Lesbian Mother Victory: Women Can Hold Out, Too

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.

13 responses to “NM Lesbian Mother Victory: Women Can Hold Out, Too

  1. She is “natural parent” but she had to go to court to seek that status, so she is also probably an “adjudicated parent” under the UPA as well. Washington recently added back into statute the holding out provision and it will be interesting to see how parties and courts begin using it.

    • I think you are right that she is an adjudicated parent at this point. In general, though, people who claim parentage via holding out (or de facto, I would think) or via marriage are all natural parents.

      I have in mind a Venn diagram. There’s the universe of legal parents. Some of those legal parents (circle within circle) are adoptive parents. The rest–instead of calling them “non-adoptive parents”–we’ll call “natural parents.” It’s not an obvious usage of the word “natural” but I think that is what the law is doing here.

  2. Julie if parentage by holding-out provision is the same as de facto parent then you need to add foster parents into thought process because after a
    ertain point of foster parenting a child you can go to court to become de facto parents to the child to have standing in the case.

    I think they need to not mix up the terminology (applying natural to basically a step parent (not legally adopted) because it creates mass confusion. Isn’t law supposed to understood at a certain level by the general public – at least family law?

  3. sorry for the break in the previous comment – it should be after a certain…

    Forgot to include they need to make same sex adoption legal in all states so this does not happen. When one adopts internationally the other does a second adoption. Or they could simply comply with the international countries rules and chose another country (my preference).

    • You’ve identified an important point, I think. Clearly courts are worried about both foster parents and step-parents becoming natural parents via holding out and/or de facto. There’s a lot to think about and say here.

      First off, the problem isn’t really presented in a case like the NM one. I’d say Chatterjee is not, by our general understanding, a step-parent. Step-parents are people who arrive on the scene after the parent/child relationship has formed, I think. (They may also be people who “step into” someone else’s shoes–another parent who precedes them–but I’m not sure about this one. It seems to me when a single mother decides to introduce her partner into the child’s life as parent that person might be in the position analogous to a step-parent even though the person isn’t taking the place of an preceding parent.)

      Anyway, Chatterjee and King formed their relationship first and then brought a child into it. Under these circumstances, I don’t think it’s accurate to describe Chatterjee as a step-parent. She is an original parent. (I believe the holding out doctrine, as currently in force in NM, also speaks to this a bit because you have to be there the first two years of the child’s life, I think.)

      Now having said all that, let me go back to the point about people who really are in the position of what we think of as step-parents and foster parents. Perhaps we do not want to rules to operate the same way for them. This is an important question and I think perhaps merits more consideration than I can give it just this moment. It could, however, be tomorrow’s post.

  4. I’m no fan of the holding out doctrine. It means anyone could pretty much walk off with any kid. My standards for de facto parenting would be much higher than mere holding out.

    But I would even consider recognizing her as an equal parent if she can make a credible case that the ONLY reason she was unable to co-adopt was because of being a member of a lesbian couple.

    • I would also prefer that holding out/de facto be done away with in law and anyone in a relationship can legally adopt their partner or spouse’s child, regardless of gender/legal ability to marry, as long as the legal parent of the child formally consents.

      • The problem is that there will always be people who do not follow through with legal technicalities for a whole variety of reasons. For instance, suppose a couple doesn’t realize they need to go through a formal adoption proceeding? Or suppose they have limited means and choose to spend the money on other things directly related to the child’s care? I think de facto/holding out exist to take account of the fact that people won’t always do the things they legally should.

        To some degree this is also the rational for common law marriage–if two people act as though they are married then maybe we ought to treat them that way. It’s fallen out of favor (down to ten states, I think). But in common-law marriage you are mostly concerned with adults. Doctrines like de facto and holding out may protect children. For example, is a child to blame (and should a child suffer) if the parents don’t have access to a lawyer and so don’t realize that they need to do an adoption?

        • I think that is an acceptable result because I believe strongly in biological parents, or those that adopt legally, having very strong rights. I think the parent should have to formally sign those rights over or do something very bad (true abuse/neglect) to lose any amount of rights.

          • If I put on my law professor hat I have to ask the why question–which is to say, why should the rule you propose be the right one? How do you justify the strong preference for (let’s just say for now) the adoptive parent?

            The touchstone of a lot of the law in this area is the well-being of children. We justify legal systems by reference to that goal. If a child has in in fact been raised in a household with two parents but has actually only been adopted by one, it can be quite detrimental to the child to recognize only the one legal parent. The emotional/pscyhological parent/child relationship between the child and the non-legal parent may be a critical element of the child’s life. Should it be completely subject to the whim of the sole legal parents? You can even imagine situations where the legal parent is far less engaged (emotionally and psychologically) with the child than the non-legal one.

            It’s this set of concerns that drive the de facto doctrine. We need (as a society) to protect the interests of children who cannot protect themselves. If you want to set this doctrine aside and say that the legal parent can do as she/he likes in this situation, then you need to say why this is a good rule. What does it accomplish that makes it worth the cost to the individual child?

            • I think there needs to be a balance between the rights of the (indisputably) legal parent and the rights of the child. I believe a compromise like visitation is more appropriate than giving full parental rights.

    • The difference in standards for de facto and holding out is quite noteworthy. It’s hard to see it as being about anything but gender. Holding out (a lower standard–easier to meet) was for men.

      I just wrote a bit about your second point in a different response. I take it your suggestion that de facto should only be narrowly available stems from your general concerns about the doctrine?

      I understand encouraging people to do the legal things they can do that will make this all so much easier–here adopting. But there are so many reasons why people don’t–raising from knowledge about the law to access to lawyers to finances. What you are suggesting would mean that you could have children with identical family histories and situations but one would have access to de facto parentage to protect a parent/child relationship while another would not because one set of parents was more educated or knew a lawyer or some other happenstance that has nothing to do with the child. This bothers me.

      • Because I see this as the right of the legal parent to have to sign over the rights. Yes there are obvious cases but there are he said she said cases where the parent could unfairly lose rights. I mean, how do you decide, for example, what support is? If the spouse/partner contributes towards the rent is that supporting the child since he/she lives there too? Should paretnes have to discourage ANY positive relationship between their child and partner/spouse in order to prevent any risk of losing some parental rights?

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