New Mexico is known for its inclusive legal culture, particularly when it comes to same-sex marriages and family life in the LGBTQ+ community. One area in which nuances may arise is that of paternity in same-sex couples. Here is some guidance for families seeking clarity in this complex area of law.
What is paternity?
The term “paternity” has traditionally been used to describe a male father figure in a child’s life. However, in a same-sex union, the topic of paternity has less to do with gender and more to do with the establishment of parental rights and responsibilities.
New Mexico law acknowledges that children benefit from the involvement of both of their parents in their lives, regardless of their parents’ gender and sexual orientation. Therefore, establishing paternity is essential to leverage the legal rights to which they are entitled.
How paternity can be established
Under New Mexico law, and in particular New Mexico Statute Chapter 40, Article 11A, Section 40-11A-106 [1], determinations of “paternity” apply regardless of sex or gender. This means paternity can be established in the following ways:
1. Voluntarily by completing a Voluntary Acknowledgement of Paternity form [2]. This is the typical method for establishing paternity in a same-sex relationship as it allows the relationship between the child and their non-biological parent to be legally affirmed and ensures equal parental responsibility is assigned to both parents.
2. There is a presumption of paternity when a child is born within 300 days of a terminated or invalid marriage;
3. Presumption of paternity can be established through naming the second parent on the child’s birth certificate;
4. There is also a presumption of paternity when the second parent resides in the same household as the child and their mother for at least the first two years of the child’s life and accepts and promotes the child as being their own.
5. When a child is born through artificial insemination to a same-sex couple, the couple should seek legal advice from an attorney familiar with LGBTQ+ custody (https://kufferlaw.com/lgbtq/) to ensure that the rights of both parents and the child are protected from the outset.
Seeking a court order to establish paternity
When a paternity dispute arises, it may be necessary to seek a court order to establish legal paternity. New Mexico courts prioritize the best interests of the child, so following this route can provide legal clarity and protection for both parents.
Second parent adoption
Second parent adoption is a route through which the non-biological parent of a child can obtain joint parental responsibility for them. Although it should not be necessary in cases where both parents planned the birth or adoption of the child together, it is recommended by the National Center for Lesbian Rights [3] to ensure that their parental rights are protected in every state.
Rights and responsibilities of same-sex couples
Same-sex couples in New Mexico enjoy the same rights as their heterosexual counterparts. This means that once paternity is legally established, both parents can exercise their parental rights with respect to their child’s upbringing, education, healthcare and general wellbeing. Establishing legal paternity renders both parents equally responsible for financially supporting their child.
Paternity for custody arrangements
Regardless of the sexual orientation of the divorcing couple, the court of New Mexico always prioritizes the needs and best interests of the child(ren) involved when determining appropriate custody arrangements.
Same-sex couples who have legally established the paternity of the non-biological parent must work together to the extent possible and seek legal advice in order to develop a parenting plan that ensures they each maintain a meaningful presence in their child’s life, even after divorce. Depending on the circumstances, adoption is typically a wise choice for same sex couples.
Navigating the complexities of custody and visitation is always fraught with emotions, but couples should rest assured that as long as they prioritize the needs of their child, it will be possible to arrive at a solution that delivers an acceptable family dynamic.
The inclusive laws that bind the citizens of the state of New Mexico are leading the way for legal frameworks to evolve in accordance with societal norms. Same-sex couples receive the same legal rights and protection as their heterosexual counterparts.
The Law Office of Dorene A. Kuffer is home to experienced family law attorneys who are passionate about progressing the rights of the LGBTQ+ community. Contact us today to help build a strong legal foundation for your family.
Resources:
[1] https://codes.findlaw.com/nm/chapter-40-domestic-affairs/nm-st-sect-40-11a-106/
[2] https://www.nmhealth.org/publication/view/form/612/
[3] https://www.nclrights.org/wp-content/uploads/2013/07/Legal_Recognition_of_LGBT_Families.pdf