Chatterjee v King, 2012-NMSC-019, and, more recently, Tomlinson v Weatherford, 2017-NMCA-055, examined the rights of same-sex partners in custody disputes. Although the laws are rapidly changing, same-sex parents continue to face legal issues not encountered by heterosexual couples, as these cases illustrate.
Chatterjee v King: Case Overview
Chatterjee and King had been living together in a committed relationship for several years when they decided to adopt a child. In 2000, they traveled together to Russia to adopt. They learned that Russian adoption agencies would not grant a same-sex adoption; they also learned that the adoption agency would view King’s ethnicity more favorably than Chatterjee’s. To facilitate the adoption, King became the sole legal adoptive parent. The family stayed together for 8 years after the adoption, and child rearing was equally shared by both Chatterjee and King.
For a time after Chatterjee and King separated, King allowed their daughter to spend time with Chatterjee. She began to reduce the frequency of visits and finally cut off all contact between the child and Chatterjee. Soon after, King moved to Colorado and effectively prevented any further contact.
In December 2008, Chatterjee filed a petition to be recognized as “a presumed natural parent” and sought joint custody of their child. King did not legally respond to or contest the merits of Chatterjee’s claims regarding parenthood. Instead, she moved to have Chatterjee’s petition dismissed, arguing that Chatterjee was simply a “third party” and, unless King had been found to be unfit, Chatterjee had no legal standing to bring a claim for custody.
On appeal, the New Mexico Supreme Court found that Chatterjee had standing. New Mexico’s laws concerning parentage were reinterpreted to include the possibility of legal parentage for non-biological/non-adoptive mothers.
Uniform Parenting and Dissolution of Marriage Acts
Two pieces of New Mexico legislation came into play in Chatterjee v King. The first, New Mexico’s Uniform Parenting Act, deals with who can be considered a child’s parent; the second, the Dissolution of a Marriage Act, delineates who and under what circumstances a person can request custody of a child.
Chatterjee’s “presumed natural parentage” rested on New Mexico’s Uniform Parent Act (UPA). The first UPA was federal. In 1973, the National Conference of Commissioners on Uniform State Laws proposed a Uniform Parentage Act that radically changed how parentage was determined in the United States. Prior to 1973, the laws of most states failed to identify two legal parents if the parents were not married. “Illegitimate” children did not benefit from the financial and legal benefits of having two legal parents. The UPA sought to provide a uniform way to identify two legal parents for children born in and out of wedlock. The New Mexico UPA, NMSA 1978, ¶¶ 40-11A-101 – 903 (2009, as amended through 2013) lists presumptions, or circumstances, that may be used to establish paternity in the law. It suffices to fulfill any of the presumptions to be held as a natural parent. Specifically, the UPA provides that a man is to be the natural father of a child if “…he resided in the same household with the child and openly held out the child as his own.” ¶ 40-11A-204(A)(5). Chatterjee indeed lived with the child and held the child out as her own, but Chatterjee was not a man.
Article 4 of Chapter 40 NMSA covers all aspects of divorce: grounds, residency requirements, property division, alimony and custody. Under the provisions relating to custody, the Act stipulates “When any person other than a natural or adoptive parent seeks custody of a child, no such person shall be awarded custody absent a showing of unfitness of the natural or adoptive parent.” ¶ 40-4-9.1(K). Sidestepping Chatterjee’s claim to parentage, King rested her request for dismissal on this.
How the case unfolded
The district court, where Chatterjee’s initial petition was submitted, dismissed the petition as requested by King. Its reasoning was that Chatterjee could not be considered a natural parent: the UPA presumptions were gender-specific to males and did not extend to females.
New Mexico courts generally grant visitation (the right of a non-custodial parent to see a child) to non-custodial parents unless it is shown to be against the child’s best interests. The law concerning visitation by non-parents (grandparents, family members, 3rd parties) is less clear cut. In the Chatterjee v King case, the district court did not grant Chatterjee visitation privileges.
Chatterjee appealed the District Court’s ruling. The New Mexico Court of Appeals affirmed the state court’s finding that Chatterjee could not be deemed a natural parent, agreeing that the UPA paternity presumption could not be applied to women. But the Court of Appeals reversed the District Court’s dismissal of Chatterjee’s petition for visitation. They sent it back to District Court to determine if visitation would be in the best interests of the child. On remand, and upon the recommendation of the appointed Guardian ad Litem, visitation was granted.
Still fighting to be acknowledged as a natural parent (and for joint custody), Chatterjee appealed to the New Mexico Supreme Court.
In June 2012, four long years after the first petition was filed, the NM Supreme Court, in a unanimous decision, decided in Chatterjee’s favor. Their decision clearly established that the UPA was henceforth to be applied equally to men and women. Their decision rested on four arguments:
- Plain Language: the court reasoned that the ability to hold a child out as one’s own by providing full-time emotional and financial support is based on conduct, not gender, and it is therefore practicable for a woman as well as for a man.
- Legislative Intent: the authors of NM’s original UPA, in commentary to the act, had noted that masculine terminology was used only for simplicity’s sake and not to limit its application to males.
- Application in other jurisdictions: The California Supreme Court and the Colorado and Oregon Courts of Appeals had all extended the parentage presumption to women in similar cases.
- Public Policy: NM’s public policy is to promote the best interests of the child and that end is usually best served by facilitating that the child has two loving parents.
Tomlinson v Weatherford Case Overview
A more recent New Mexico case, also a same-sex custody dispute, turned more on establishing jurisdiction, but nevertheless underscored the same lack of protection a non-biological, non-adoptive parental faces in same-sex child rearing.
Tomlinson and Weatherford were in a domestic relationship and decided to have a child. Weatherford was artificially inseminated and gave birth to R.W., in Oklahoma in April 2007. Following closely on the birth, Tomlinson and Weatherford requested and were granted co-guardianship of their child in an Oklahoma District Court.
In 2008, the family moved to New Mexico. From the time of the child’s birth until May 2009, the two women and their child lived as a family. In 2009, Tomlinson left the home but continued to share parenting responsibilities until September 2012, when Weatherford cut off contact between Tomlinson and their child.
In May 2013, Tomlinson initiated action to establish parentage and determine custody and timesharing. Weatherford left New Mexico right after the petition was filed and returned to Oklahoma. She was not served prior to leaving New Mexico, as she could not be located.
Weatherford’s move and subsequent engagement of the Oklahoma courts began a four-year legal tug of war during much of which Tomlinson was unable to see or visit their child.
How the case unfolded
Once back in Oklahoma, Weatherford filed an objection to New Mexico’s jurisdiction over Tomlinson’s parentage petition. She also filed a change of venue in the 2007 co-guardianship case in an apparent attempt to have a basis for claiming that there was a simultaneous custody proceeding occurring in Oklahoma.
Weatherford succeeded in obtaining a stay in the New Mexico case and in further delaying a legal decision on Tomlinson’s claim.
In the end, the New Mexico state court declined jurisdiction. It did not address Tomlinson’s request for interim visitation, and it denied her motion to stay the enforcement of its judgement, pending appeal.
When Tomlinson went to the New Mexico Court of Appeals, she argued that the district court had:
- erred in declining jurisdiction
- overstepped by making findings on the merits of her custody claim when the sole issue in front of the court was that of jurisdiction
- violated due process by failing to address her repeated requests for interim visitation
- violated equal protection
The first two of these (and her right to interim visitation) were based on the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA), and the Court of Appeals resoundingly agreed with her. The Court of Appeals declined to address the constitutional issues raised, however, agreeing with the District Court that the question of jurisdiction needed to be resolved before any other claims could be evaluated.
Uniform Child Custody Jurisdiction and Enforcement Act (the Act)
The UCCJEA is federal legislation adopted by every state for the purpose of determining which state has jurisdiction over, and authority to make decisions for a child in a custody case.
New Mexico’s UCCJEA supersedes earlier state legislation. The earlier act signaled 4 bases for establishing jurisdiction:
- it was the child’s home state
- assuming jurisdiction would be in the child’s best interests
- in emergency circumstances to protect the child
- if no home state existed, or another state had declined jurisdiction
Significantly, the CCJA did not prioritize between these bases. The new act clearly prioritized the “home state”, defined as “…the state in which a child lived with a parent or a person acting as a parent for at least six consecutive months immediately before the commencement of a child custody proceeding”. § 40-10A-102(7). The UCCJEA also eliminated the “best interests” language which had created confusion between the jurisdictional issues and substantive custody determination.
The Court of Appeals Decision
In a strongly worded decision, the Court of Appeals found for Tomlinson across the board. It strongly agreed that the New Mexico District Court was the proper venue for the custody proceedings. It concluded “…at the time the petition was filed, New Mexico was R.W.’s home state and the district court had jurisdiction to make the initial child custody determination” Tomlinson v Weatherford, 2017-NMCA-055, ¶ 16. Regarding Weatherford’s claim that the co-guardianship created a simultaneous proceeding, the court tersely stated, “We are not persuaded” Id. at 17. It questioned the NM district court’s decision to decline jurisdiction, noting that “The legal basis for the district court’s decision is not clear” Id. at 25.
Lastly, the New Mexico Court of Appeals remarked on what was possibly the most difficult aspect of a prolonged custody fight for Tomlinson – the years during which she was unable to have contact with the child. The Court stated:
In May 2013 when the petition to determine parentage and child custody was filed, Petitioner moved for interim visitation and contact with R.W. The district court did not rule on Petitioner’s motion, and in August 2013 Petitioner again requested that the court address the issue of visitation. However, it appears from the record before us that while the district court addressed other issues in the case, this particular issue was not addressed. Id. at 25.
Tomlinson had prevailed in the Court of Appeals, but she had all the same been deprived of years of contact with her child.
Both Chatterjee and Tomlinson cases were bitter and long fought. In Chatterjee, the issue of same-sex parenting was directly addressed in the issues of the case. In Tomlinson, it remained sub rosa, yet many believe attitudes toward same-sex parenting nevertheless influenced the proceedings. In each case, the relationships between the parent and the child were affected immensely.
Same-sex marriage has been legal since across the United States since 2015 and, had the partners in these cases been married, the petitioners would have been afforded more protections under the law. But in both cases, official adoption would have ensured iron-clad rights of the non-biological/non-adoptive parent and that would hold even if the law of the land changes again on same-sex marriage.