Subject: Parental Rts/Custody:New Mex
From: Blythe Systems <[email-masked]>

Via The NY Transfer News Service 718-448-2358, 718-448-2683

from The (Electronic) Gay Community Magazine - February 28 1992
 
   NEW MEXICO COURT OF APPEALS REVERSES NATIONAL TREND DENYING
          NON-TRADITIONAL PARENTS VISITATION AND CUSTODY
  
ALBUQUERQUE, NM (EGCM) -- In a decision that looks other national
court rulings in the eye and clearly moves away from their
reliance on antiquated definitions for functional families, the
New Mexico Court of Appeals rules that a non-biological lesbian
mother may be entitled to seek custody or visitation with the
child she raised with her former partner of 14 years. It is the
first appellate victory in the country in favor of recognizing a
legal relationship between a non-biological lesbian parent and a
child conceived through donor insemination. Furthermore, the New
Mexico Court ruled that a parent "may enter into an agreement with
another person concerning the custody of a child," including
persons who are not biologically related to the child, and
specifically held, in very strong language, that "sexual
orientation, standing alone, is not a permissible basis for the
denial of shared custody or visitation."
 
This stunning ruling was issued in the case of A.C. v. C.B. a
custody / visitation dispute between two women who had lived
together for fourteen years and shared parental responsibility for
their seven year old child who was born to C.B. by alternative
insemination. The non-biological co-parent, A.C., sued for
visitation rights after C.B. refused contact between her former
partner and the child.
 
The suit initially filed by A.C. was withdrawn by her when the
biological mother agreed in settlement negations to allow
visitation. When the biological mother did not honor that
agreement, A.C. moved to have her lawsuit reopened, at which point
the lower court dismissed her claims, without giving a hearing on
the evidence and facts of the case, ruling that, based on past New
Mexico law, a non-biological party could not sue for visitation.
 
In refuting the lower court's ruling, the Court of Appeals noted
that "a determination of the best interests of the child must be
made on the basis of evidence before the court" and that the
district court "erred in concluding that this type of an agreement
[i.e. the settlement agreement which lead to the initial withdrawn
of the suit] is unenforceable as a matter of law."
 
"This brave and rational ruling by the New Mexico Court of Appeals
is a tremendous validation of lesbian and gay families," commented
Paula Ettelbrick, Lambda's Legal Director, and co-author of a
"friend of the court" brief submitted in this case. "The Court
specifically refused to follow other state courts which are stuck
in the view that `family' only takes one form, which does not
include lesbians and gay men. We are very hopeful that this case
will reverse the trend of decisions that failed to recognize our
families."
 
The Court of Appeals ruling compels the lower court to reopen the
non-biological co-parent's case and to give her a hearing at which
she can present her facts and evidence of her relationship with
the child and the couple's intention that they would both be
parents to the child. It is not yet known whether the case will be
appealed further.
 
In an unusual move that recognizes Lambda's significant leadership
in the area of lesbian and gay family law, the Court ordered
Lambda to submit a "friend of the court" brief because the issue
on appeal raised "important questions regarding the rights of
non-traditional parents, as well as other significant issues."
Paula Ettelbrick wrote Lambda's brief with assistance from Maria
Gil De Lamadrid from NCLR, Albuquerque attorney Elizabeth Stacy
Venill, and Lambda Cooperating Attorney Marian Rosenberg from
Sanctuaries for Families in NYC.
 
For more information contact: Paula Ettelbrick; Lambda Legal
Defense & Education Fund; 666 Broadway; New York, NY 10012; Voice
212-995-8585; Fax 212-995-2306. Lambda Legal Defense & Education
fund; 606 South Olive Street #580; Los Angeles, CA 90014; Voice
213-629-2728; Fax 213-629-9022.
 
                             ###
 
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