From: Blythe Systems Subject: Parental Rts/Custody:New Mex 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 The suit initially filed by A.C. was withdrawn by her when the biological mother agreed in settlement negations to allow visitation.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court "erred in concluding that this type of an agreement [i.e. the settlement agreement which lead to the initial withdrawn of the suit] is unenforceable as a matter of law."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. ### The entire contents of The Electronic Gay Community Magazine are Copyright 1992 by The Land of Awes Computer Information System (telephone 316-269-0913 Voice, 316-269-4208 FAX/BBS) but may be reproduced by any means without permission from the publishers provided that this copyright notice remains with each article.