Same-Sex Partner Looses Child Custody

Bay Windows, the largest GLBT newspaper in New England, has reported that in a precedent-setting case in a New Mexico court, Bani Chatterjee can only seek visitation and not custody of her now 11 year-old daughter, as the child's adoption papers only list her former partner, Taya King, as the parent.

The court ruled 2-1 against Chatterjee, a Santa Fe resident, in her request to file a lawsuit asking for custody of a child that was adopted during her 15 year long same-sex relationship with the child's adopted mother.

The Legal Director of the National Center for Lesbian rights, Shannon Minter, said that the precedent-setting case is a step "backward" where New Mexico had been known for "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 claims that the law only applies to biological or adoptive parents - Chatterjee was neither - and that "other people" can only seek custody if the a parent is deemed unfit.

One dissenter, Judge Michael E. Vigil, said that he disagreed because it may result in the "permanent severance of a parent-child bond." 

Taya King adopted the child from Russia when she 13 month's old.  Concerned that the Russian adoption agencies might object to same-sex parents, they chose to only use King's name.

King moved to Colorado in 2008, as the couple had separated at that time, and Chatterjee filed a lawsuit asking a state district court judge to declare her a parent, and to decide custody and visitation.

The judge dismissed the case though Chatterjee contended she had spent nine years sharing in parental duties and that there was a formed parent-child relationship.

Chatterjee's lawyer declined to comment on the court's latest ruling.

Patrick McDaniel, King's lawyer, said that the ruling " 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.  This would apply to stepparents, domestic partners, same-sex or heterosexual. I don't see this as a same-sex issue."

The fact remains that New Mexico law doesn't provide for same-sex marriages.  Proposals to establish domestic partnerships have also failed in the Legislature.  These proposals - had they been approved - would garner same-sex couples the same legal protections as married couples in regards to adoption and child support, among other rights.

Chatterjee didn't have her visitation rights granted and must return to court to make a new request.

While the idea of visitation rights being granted in the future may have seemed like positive news, McDaniel argued, "The idea that the door can be opened to visitation to anybody who has a relationship to a child, I find that troubling.  What if a biological parent had a series of relationships? Does that mean each of those people has visitation rights?"

Judge Vigil feels that the ruling has left the child "helpless with the most to lose in this case: a loving, nurturing parent."

If you are heading toward a child custody battle, click here to contact a family law attorney from our directory to learn about the laws governing your state.