What constitutes a family isn’t a legal construct. This is something people who identify as LGBTQ+ understand better than anyone.
You know what it’s like to have the government decide if your love is worth recognizing.
The kids you love may not share your DNA, even though they hold a big piece of your heart.
And unfortunately, you may have experienced the pain of having someone that the government defines as your family turn their back on you because of who you are.
Because of this, you know that families are something you build. Something you fight for.
The good news is that New Mexico law recognizes this, and it attempts to protect LGBTQ+ parents and their children, even when family relationships start to fray. The courts here have been clear: families are defined by the love and commitment between parents and children, not by biology, gender, or paperwork alone.
Still, when relationships end or family circumstances change, the question of who is a legal parent can become complicated. This is especially true when children were added to your family through assisted reproduction, surrogacy, or adoption. In these situations, you need a seasoned family law attorney like Attorney Bob Matteucci at your side. Bob is ready to help you protect your family and assert your parental rights.
The Legal Landscape: Equal Protection for LGBTQ+ Parents
LGBTQ+ parents have often experienced poor treatment from courts around the country. Rather than recognizing love is the tie that binds, many states have said biological relationships and formal adoptions are prerequisites for parental rights.
New Mexico took a different path.
In the case Chatterjee v. King, the New Mexico Supreme court held that parties in same sex relationships have the same right to seek parentage, custody, and child support orders as any other parent.
In that case, two women in a committed relationship became parents to a child from another country. One woman officially adopted the child, but the other could not because of the then-existing law. Both parties to the case raised and supported the child.
When their romantic relationship ended, the adoptive parent tried to cut off the child’s contact with her non-adoptive parent. In court, the adoptive parent argued that the non-adoptive parent was not a true, legal parent. The court disagreed. It reasoned that the law should recognize functional parent-child relationships — those built on love, care, and shared responsibility — instead of looking only at biology or paperwork.
This case has set the tone for family law in New Mexico. LGBTQ+ parents have the same rights as any other parents.
Taking the Law Into the Real World
In theory, New Mexico’s child custody laws and other statutes impacting parental rights are applied equally. LGBTQ+ parents are treated just like any other parents, and nobody can face discrimination because of their sexual orientation, gender identity, or marital status.
That’s well and good, but issues still arise because the law may be inclusive, but it is not automatic. LGBTQ+ parents still have to jump through hoops that heterosexuals don’t in order to assert their rights.
That’s where Attorney Bob Matteucci comes in. He knows what paperwork should be filed and what evidence a court is going to find persuasive if you need to prove you are a parent and you want to assert your right to play a significant role in your child’s life.
Establishing Parental Rights: The Importance of Documentation
They say the best defense is a good offense, and that’s especially true when it comes to protecting your family. For LGBTQ+ parents, the best offense is proactive planning.
Even though New Mexico law recognizes functional parenthood, and you never expect to split up with your child’s other parent, taking steps to document your relationships and legally formalize your family can save you a lot of heartache in the future.
Adoption for LGBTQ+ Parents
New Mexico law allows any adult, regardless of gender or sexual orientation, to adopt a child. Married same-sex couples can adopt jointly, and unmarried partners may pursue a second-parent adoption if one partner has already adopted or is the biological parent.
This is one of the most powerful tools for protecting your parental rights. Once finalized, an adoption decree is iron clad, ensuring your parental status is recognized nationwide, not just in New Mexico. This is critically important if you plan to travel with your child, may move to another state or country in the future, or ever separate from your child’s other parent.
Assisted Reproduction and Surrogacy in New Mexico
Surrogacy and assisted reproduction can be life-changing tools for LGBTQ+ couples who wish to create a family together. But the laws that apply are almost as complex as the science.
The guiding principle in these cases is intent: who intended to be the parents of the child? If the evidence shows that both partners planned to parent the child together, and took concrete steps in that direction, New Mexico courts will typically respect that intent.
New Mexico does not have a single, comprehensive surrogacy statute, but courts here recognize and enforce surrogacy agreements as long as they are clear, voluntary, and consistent with public policy. That means LGBTQ+ parents should:
- Obtain pre-birth parentage orders when possible, establishing parentage before the child’s birth.
- Avoid informal arrangements that might not be recognized under New Mexico law.
It is important to note here that the law surrounding embryos is less settled.
Adding Both Parents’ Names to Everything
Outside of the courts, LGBTQ+ parents can create a paper trail that provides evidence of their parenting by adding both parents’ names to medical, educational, and legal documents. Adding a would-be parent’s name to these documents doesn’t magically turn them into a legal parent, but it can be evidence of parenting activity that is used to support a future legal claim.
FAQs: LGBTQ+ Parental Rights in New Mexico
Q: Does marriage automatically make me a legal parent if my spouse gives birth during our marriage?
A: Generally, yes. Under New Mexico law, a child born during a marriage is presumed to be the child of both spouses, regardless of the spouses’ gender. However, it is still wise for the non-birthing parent to formally adopt the child.
Q: What if we were never married?
A: You can still be recognized as a legal parent if you helped raise the child and intended to co-parent from the beginning. Chatterjee v. King established that unmarried same-sex partners may have equal standing to seek custody or visitation.
Q: Can I adopt my partner’s biological child?
A: Yes. New Mexico allows second-parent adoptions, even if the couple is not married. Once finalized, the adoption grants you full parental rights.
Q: What if my name isn’t on the birth certificate?
A: You may still be recognized as a parent if you can show that you acted as one by supporting, and caring for your child, and identifying yourself as their parent.
Q: Are New Mexico courts allowed to favor a biological parent over a non-biological parent?
A: No. Courts cannot discriminate based on biology, gender, sexual orientation, or gender identity. The focus is always the child’s best interests.
Serving Families with Dignity & Compassion
New Mexico is one of the more progressive states when it comes to recognizing and protecting LGBTQ+ families. But there are still legal steps you should take to protect your children and your parental rights when your family structure doesn’t fit the traditional mold.
Bob Matteucci is an experienced family law attorney who has helped many LGBTQ+ families in the Albuquerque area ensure both parents are able to love and support their child, no matter what direction life takes them. Please contact him today to schedule a meeting.