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Latest News and Views of Walther Family Law

Isn’t it always the case that the life gets more interesting and more complicated when kids enter the picture? The same holds true in same sex marriages, but in these marriages some of the complications can stem from the law.

Before same sex marriage became legal in New Mexico (and still, in states that do not recognize same sex marriages), same sex couples who wanted to have equal parental rights had to go the adoption route: For lesbians, typically one partner would be the biological parent, and the other would adopt the child. For gay men, it was (and is) even more complicated – legal contracts with surrogates, paternity affidavits, adoption and even then some legal ambiguity could (and can) remain.

Children born to a legally married couple are born into the marriage and legal parental rights are automatically established. In New Mexico, this is now the case for same sex couples the same way as it is for parents in a heterosexual marriage. Legal parental rights are important. Not only do they establish who has the right to provide the custody, nurturing and care of a child, but they also confer standing. Standing is the legally protectable interest that entitles an individual to bring a controversy before the court. Simply stated: No standing, no possibility to even petition the court for anything concerning the child, be it the custody or visitation rights of the parent or the child’s right to social security or veterans benefits.

So now that same sex marriage is legal and same sex parents both have legal parental rights, everything’s cool, right?

Well…yes…so long as you and your spouse stay in New Mexico and so long as no new unforeseen legislation comes along.

But what if you move to one of the 31 states that do not currently recognize same sex marriage? In a non- recognition state, a non-biological parent may not be able to prove a parent child relationship. If there is a divorce, that parent would lack standing to petition for custody or visitation or even to have any say in the child’s upbringing.

From a Family Law perspective, New Mexico is progressive and your rights and obligations as parents have increased dramatically in-state. But they haven’t increased everywhere. Laws are still in flux and quite a few state legislatures would like to upend even those rights that are now established.

In the NM same sex custody case Chatterjee v King, former New Mexico Court of Appeals Judge Richard Bosson stated “Adoption can be complicated but, at the very least, it has a set legal protocol. It alerts everyone concerned, just like executing a will, of the solemnity of the occasion and its permanent consequences.”

Married or no, going the extra mile to legally adopt a non-biological child clearly cements the parent-child relationship in the eyes of the law, in all 50 states. I counsel same sex parents to adopt to be sure.