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Court: Same-sex partner can't seek child custody

By BARRY MASSEY/None
Dec. 2, 2010 at 6:02 a.m.


SANTA FE, N.M. (AP) - A same-sex partner of an adoptive mother can't seek child custody but may request visitation, the New Mexico Court of Appeals has ruled in a precedent-setting case.

State laws provide no legal right for a Santa Fe-area woman to bring a lawsuit asking for custody of a child who was adopted by her partner during their 15-year relationship, the court concluded in a 2-1 ruling issued Wednesday.

Shannon Minter, legal director of the National Center for Lesbian Rights, said Thursday the ruling was a "step backward" on child custody because New Mexico previously had been a leader in "protecting children's relationships with functional parents, with people who are true parents in every sense of the word but don't have a biological or adoptive relationship with the child."

The court's majority said the state's child custody law applies to biological or adoptive parents. Other people, such as the unmarried partner of an adoptive parent, can't seek child custody unless the parent is unfit, which isn't at issue in the case.

Judge Michael E. Vigil dissented, saying he disagreed with the ruling because it "may result in the permanent severance of a parent-child bond."

The custody dispute involves Bani Chatterjee and Taya King, who adopted a 13-month-old girl from Russia in 2000. Only King adopted the child because of concerns that Russian adoption agencies would object to two same-sex parents.

The couple separated in 2008, and King moved to Colorado. Chatterjee filed a lawsuit in state district court asking a judge to declare her a parent and decide custody and visitation.

She contended she had shared in raising the child for nine years and there was a parent-child relationship, but the judge dismissed her case.

Lawyers for Chatterjee declined to comment Thursday on the new ruling.

King's lawyer, Patrick McDaniel of Albuquerque, said the ruling "draws a line between parents and non-parents" in seeking child custody.

"It does set forth clearly that there's a difference between a parent and other people who may claim parentage because of relationships - whether it's boyfriend-girlfriend or whether it's a same-sex relationship," said McDaniel.

The ruling potentially affects more than just same-sex couples, according to McDaniel and Minter.

"This would apply to stepparents, domestic partners, same-sex or heterosexual. I don't see this as a same-sex issue," said McDaniel.

New Mexico law does not provide for same-sex marriages, and proposals have failed in the Legislature to establish domestic partnerships, which would provide unmarried same-sex and opposite-sex couples the legal protections of married couples on issues ranging from medical decision-making to adoption and child support.

The appeals court did not decide whether Chatterjee should be granted visitation rights, only that she can go back to district court and ask for that.

Minter said that was a positive side to the ruling, but McDaniel disagreed.

"The idea that the door can be opened to visitation to anybody who has a relationship to a child, I find that troubling," said McDaniel. "What if a biological parent had a series of relationships? Does that mean each of those people has visitation rights?"

The court's majority, in an opinion by Judge James Wechsler, said it's up to the Legislature to expand whether a "non-parent" has the legal standing to seek custody of a child.

Vigil said in his dissent that Chatterjee should be able to seek custody because of previous New Mexico court decisions that favor recognizing a "psychological parenthood relationship."

The judge called the child "helpless with the most to lose in this case: a loving, nurturing parent."

In denying custody to Chatterjee, the court majority ignored "the realities of a parent-child relationship, and the child's interest in her right to a parent," he wrote.

___

Online:

Appeals Court: http://coa.nmcourts.gov/documents/opinions/Chatterjee%20FO.pdf

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