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Bench Memos

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Unnatural Reasoning



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If you need further evidence that our legal world is insane, consider this:

Two women, A and B, were in a committed, long-term domestic relationship when they agreed to bring a child into their relationship. B adopted a child, C, from Russia. For a number of years, A supported B and C financially, lived in the family home, and “co-parented” C, but A never adopted C. The relationship between A and B then ended, and B sought to prevent A from having any contact with C. A sued to establish parentage and determine custody rights.

Governing law states that a “parent and child relationship” means “the legal relationship between a child and his natural or adoptive parents incident to which the law confers or imposes rights, privileges, duties, and obligations.” (Emphasis added.)

Does A have a “parent and child relationship” with C?

Believe it or not, according to a ruling issued last Friday by the New Mexico supreme court, A is “a natural mother” of C. (More precisely, in the particular procedural context of the case, the court determined that the facts pleaded by A—the facts outlined above—would, if proven, suffice to establish a presumption that she is “a natural mother” of C.)

I emphasize that I have no considered view on what custody rights, if any, someone in A’s position ought to have, but the idea that the law can be twisted to classify A as “a natural mother” of a child that she indisputably has no genetic relationship with and did not give birth to strikes me as absurd (and nothing in the court’s effort to justify that result persuades me otherwise).



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