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Child Custody Rights of Same Sex Partners in New MexicoOur Family Law Attorneys in Santa Fe, NM recognize that custody disputes involving same sex couples pose unique challenges. While the ruling by the U.S. Supreme Court that invalidated sections of DOMA provided some protections for same sex partners, the court fell short of imposing an obligation on individual states to observe marriage equality between homosexual and heterosexual couples. Because the nation’s highest court elected to permit individual state legislatures to continue determining whether to allow gay marriages within individual states, the decision did little to clarify parental rights between unmarried same sex couples.

Although committed lesbian partners can become embroiled in complex custody issues when only one of the partners is a biological or adoptive parent, the New Mexico Supreme Court decided a case last year that affirmed the parental rights of both partners in lesbian relationships. In Chatterjee v. King, the appellate court found that New Mexico’s domestic relations statutes extended standing to seek custody exclusively to biological and adoptive parents absent a find of unfitness by the natural or adoptive parents. Based on this rationale, the appellate court ruled that unless parental unfitness is established, a parent my not rely on proof of ongoing active participation in the life of the child or the establishment of a parental bond with the child to obtain custody rights.

The New Mexico Supreme Court in overruling the lower court equated the non-biological mom’s rights to that of a father in a paternity action. The court reasoned that the Uniform Parentage Act creates a presumption of parentage in favor of a dad who holds himself out as the parent of the child. The court ruled that this presumption must apply equally to both genders. The court also indicated that when interpreting whether the mom was an “interested party,” public policy favored interpreting this provision broadly in the interest of establishing parenting relationships to facilitate financial support (i.e. child support) for children. This means that a lesbian partner may have standing to seek joint custody even if the party is neither a natural or adoptive parent provided she had held herself out publicly as the child’s parent.

Tips for Handling a Child Custody Evaluation in New Mexico

The above information is designed solely to illustrate general principles of law, and does not constitute a specific legal opinion on individual cases. We suggest that you contact experienced legal counsel for a specific opinion tailored to your individual circumstances.

If you are a gay, lesbian or transgender individual and have questions about family law issues, Jay Goodman & Associates offers a free consultation in our centrally located offices in Santa Fe and Albuquerque during which we discuss your situation and answer your questions. Call us today to schedule your free consultation at (505) 989-81147 to learn about your rights and options.

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