Can a Step-Parent Be A Parent By Holding Out? The NM Concurrance Considered

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.


13 responses to “Can a Step-Parent Be A Parent By Holding Out? The NM Concurrance Considered

  1. I think order is important if it helps us determine the women’s intent at the time of the adoption. Of course, if adoption was available and they knowingly forgoed it, than it doesn’t matter to me at all.

    • I understand you to mean that if the women get together first than it may help us determine that the adoption was a joint project? While if the adoption comes first it’s obviously not a joint project?

      There’s a bunch of questions that need to be considered to flesh out the implcations of what you say–how it might work in practice.

      Is it fair to say that if you were convinced it was intended to be a joint project, you’d have both women be legal parents? This is an approach that has been proposed. For some the approach would be extended to ART–if the ART was intended as a joint project, then both women would be legal parents–or both people–could be a woman/man pair, too. What would you say to that extension? In other words, is this an approach you’d limit to adoption cases?

      Then there’s the question of how to determine intent. Some would say that IF the parties are together as a couple (whatever that means) then you assume joint project until someone proves it wasn’t. The alternative approach is to assume NOT joint project untili someone proves it is. (This is essentially a question of what the baseline assumption is.) Which one would you pick?

      Finally, what would happen in a situation where both women could have adopted but they didn’t know that and so they didn’t? I’m thinking here that they didn’t “knowingly forgo” the joint adoption so it wouldn’t disqualify the second woman? What if they knew but couldn’t afford it? Does that count as “knowingly forgoing” the joint adoption?

      You don’t really need to answer these if you don’t want to, but I did want to raise them so that folks could think about them.

      • A thought just occurred to me Julie. Isn’t adoption usually carried out with the presence of agencies and lawyers? and doesn’t it usually cost a lot of money to begin with? If so, indigence or lack of knowledge is not a feasible excuse for failing to complete the second parent adoption, if such a thing was available.

  2. In this, I differentiate between biological kinship and adoption. Order is important because it can help determine whether the adoption was a joint endeavor or not.
    however in the case of biological motherhood I don’t believe in the joint endeavor thing. Emotional support is cool as is financial assistance but it isn’t an actual part of the pregnancy. A sister or mother good offer the exact same assistance and it would have no legal import whatsover.
    Being pregnant is not a joint thing unless you are the actual impregnator and its your genes being carried. so order is irrelevant.

    • Okay–so I should read all the comments before I start responding, shouldn’t I? You’ve answered one of my earlier questions–about whether you’d have the same joint project test for adoption and ART and I think your answer is “no,” right?

      I think what you are saying here is that if a woman gets pregant the only person who can get automatic status as a coparent is the man whose genetic material created the pregnancy? And is that only if he impregnated her via sex? It would seem not–it’s just the genetics question, right? Does this mean no marital presumption for married couples using ART?

      I understand what you mean (I think) about being pregnant not being a joint endeavor. I’m actually somewhat sympathetic to that view (as a piece I’ve just had published makes clear. I promise to post it sometime soon so you can all read it.) But I wouldn’t say this quite as strongly as you do. I think a pregnancy can be a joint project–two people can decide they want to have a child and of course, that means someone (let’s say one of the two) has to be pregnant. The intent all along can be that the child will be raised as the child of both people (genetics or not). And the non-pregnant partner can participate in the whole prenatal care process. To me this really makes it a joint endeavor.

      Yet at the same time, the two people aren’t (in my mind) equal partners in the joint endeavor. The difference between being pregnant and not being pregnant is fairly significant to me. And that’s true whether the non-pregnant parter is genetically related to the fetus or not. So I might say this is a joint project but that the people involved don’t have equal rights/status. This is a bit different from your view, I think.

      And for you–how do you categorize a woman pregnant with a child she is not genetically related to?

      • last first
        a pregnant woman should always have “maternal presumption” unless she or the genetic mother challenges that presumption.
        (I’ve modeled it after the marital presumption! what do you think of that?)

        I’ve also previously stated that I support the marital presumption, not because I think its so great, but because the alternatives sound either Hitlerian (forced DNA testing) or chaotic (no fathers at all). However I would modify it by giving greater leeway to challenge it. For example in a previous post, I wrote that if an ART couple divorces shortly after the kids birth, either member of the couple should have the write to overturn paternity.

        A partner can not participate in prenatal care (unless he is the genetic father in which case he may undergo genetic testing as medically reccommended). Attending medical appointments together is a Partnering activity, not a parental one. There are many loving husbands and fathers who do not attend ob/gyn appointments with their wife and that has no import. If the partner takes the kid to the pediatrician after its born, now that could be considered a parenting activity.

        about your earlier questions about what counts as to “knowingly forgo the adoption” those are good questions and I don’t have the answer. If adoption was unavailable simply because they are a same sex couple, that perhaps makes it easier to determine.

  3. Interesting question about whether motive should matter. If the standard were “best interest of the child” then I think the court could and should look into the petitioner’s motives. But I don’t think that’s the standard in these UPA cases when it comes to establishing parentage, so perhaps a court not only couldn’t, but shouldn’t, look into motive.

  4. there’s also a gender assumption in the holding out doctrine- its seems to be based on the idea that no man would ever hold out and take responsibility for another chlid as his own unless he was really the father. we should check our assumptions.
    We assume that if we don’t catch those men on the flimsiest of evidence, than no one will step up to the plate to care for the poor kid.
    that may have once been true, I don’t know, perhaps its still true accross the board but it is by no means categorical.

    • YES and this is hugely important in my view. I think you are exactly right. Holding out is for men and, until recently, for men only. I think we set the bar low for exactly the reasons you say–we’re just trying to ensure we get someone here. De facto, while not formally restricted to women, has in fact been developed recently in the lesbian co-parent cases and thus is typically focussed on women claiming parentage. It’s a much higher bar. The new UPA (used in NM and WA) moves to gender neutrality on this by opening holding out to women as well as men.

      But presumably de facto still remains and it could be important where holding out isn’t available–maybe it’s month 23 of a child’s life and holding out requires a 2 year period. This all needs to be worked out.

      Anyway, I think the gender point you raise is critical. I think it does explain why the standards are so different. It’s as if we assumed that men wouldn’t want to be fathers so we have to make it easy while women are all too willing to be mothers so we make it harder. Perhaps it is time to have one standard for men and women that is in the middle. I don’t know what that would like look but it bears thinking about for sure.

  5. Thinking about it Julie, I don’t see what’s your basis for prefering Chatterjee’s parental status over Hypothetical Man’s. Hypothetical Man is certainly a de facto parent as much as anyone else. Isn’t looking at order more a matter of form than seeing how this family functions in the here and now?

    • I hope the next post cleared this up a bit. I didn’t mean to prejudge the question of whether Man is or is not a de facto parent. I just wanted to set up the question for discussion–should there be a different rule based on order. It isn’t clear to me that there should be, but I wanted to explore what the underlying concerns that lead people to argue for this are.

  6. i think holding out can not apply to a step parent because you can’t hold out a kid as your own, once you are already in another role.

Leave a Reply

Fill in your details below or click an icon to log in: Logo

You are commenting using your account. Log Out /  Change )

Google photo

You are commenting using your Google account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

Connecting to %s