                                                   I attest to the accuracy and
                                                    integrity of this document
                                                      New Mexico Compilation
                                                    Commission, Santa Fe, NM
                                                   '00'04- 13:03:01 2011.04.27
Certiorari Granted, January 27, 2011, No. 32,789

       IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

Opinion Number: 2011-NMCA-012

Filing Date: December 1, 2010

Docket No. 29,823

BANI CHATTERJEE,

       Petitioner-Appellant,

v.

TAYA KING,

       Respondent-Appellee.

APPEAL FROM THE DISTRICT COURT OF SANTA FE COUNTY
Daniel A. Sanchez, District Judge

Caren I. Friedman
Santa Fe, NM

N. Lynn Perls
Albuquerque, NM

for Appellant

Kerri L. Allensworth
Albuquerque, NM

Atkinson & Kelsey, P.A.
Patrick L. McDaniel
Albuquerque, NM

for Appellee
New Mexico Legal Group, P.C.
Julie Bishop
Albuquerque, NM

University of New Mexico School of Law

                                         1
Antoinette Sedillo Lopez, Professor
Albuquerque, NM

for Amicus Curiae
National Center for Lesbian Rights

                                           OPINION

WECHSLER, Judge.

{1}      This case involves the issue of whether a non-parent has standing to assert a custody
and/or visitation claim, absent a finding of unfitness of the natural or adoptive parent, under
New Mexico statutory or case law. Petitioner Bani Chatterjee appeals the district court’s
dismissal of her petition to establish parentage and determine custody and time sharing with
regard to the adopted child of her former partner, Respondent Taya King, as well as the
denial of her motion to reconsider. We hold that NMSA 1978, Section 40-4-9.1(K) (1999)
limits standing in a custody case to natural and adoptive parents and, as a result, denies
Petitioner standing to bring her custody claim. We further hold that Section 40-11-5(A) of
the Uniform Parentage Act (the UPA), NMSA 1978, §§ 40-11-1 to -23 (1986, as amended
through 2004) (repealed and recompiled at NMSA 1978, Sections 40-11A-101 to -903
(2009))—presuming that a father is the natural father under certain circumstances—does not
apply to women and, therefore, does not establish natural parenthood in Petitioner sufficient
to grant her standing. We additionally hold, however, that the equitable power of the courts
mandates a consideration of the best interests of the child. As such, if the allegations in the
petition are proven, the best interests of the child may accord Petitioner standing to assert
her visitation claim. Therefore, we affirm in part and reverse in part, and we remand to the
district court to consider the allegations in the petition and the best interests of the child and
to determine whether Petitioner has standing to seek visitation with the child.

BACKGROUND

{2}     Petitioner and Respondent were in a committed relationship for several years when
they traveled to Russia to adopt the child. Although Petitioner accompanied Respondent to
Russia, she did not adopt the child at that time or in the time since they returned. After
several years together, Petitioner and Respondent ended their relationship, and Respondent
moved out with the child. Respondent initially allowed Petitioner to visit with the child but,
after time, reduced the frequency of visits and ultimately terminated them. Shortly
thereafter, Respondent moved with the child to Colorado.

{3}     Petitioner then filed a petition to establish parentage and determine custody and time
sharing with regard to the child. Petitioner alleged that she, Respondent, and the child had
lived as a family and that, with Respondent’s consent, both she and Respondent raised the
child and held themselves out as parents. Petitioner further alleged that she had provided
financial and emotional support for the child, had cared for the child on a daily basis, and

                                                2
had formed a parental relationship with the child. Respondent filed a motion to dismiss the
petition, arguing that (1) pursuant to Rule 1-012(B)(6) NMRA, Petitioner is unable to state
a claim for relief under the UPA because she is neither the biological nor adoptive parent of
the child, and (2) pursuant to Section 40-4-9.1(K), Petitioner, as a third party seeking
custody and visitation, is prohibited from gaining rights absent a showing of unfitness of the
adoptive parent. The district court ruled that Section 40-4-9.1(K) does not grant standing
to Petitioner because it requires a finding of unfitness and the petition alleges that both
parents are fit. The court further stated that the UPA does not apply because it “read the
[UPA] as applying between a child and its natural and adoptive parents only, of which the
petitioner is neither.” The district court therefore granted Respondent’s motion to dismiss,
concluding that the petition failed to state a claim upon which relief can be granted.
Petitioner filed a motion to reconsider, which the district court denied.

SUMMARY OF THE ISSUES

{4}     This case deals broadly with standing. There is a difference in cases addressing
standing between an action for custody and one for visitation. As this Court discussed in
Rhinehart v. Nowlin, “it is clear that the [L]egislature did not equate custody and visitation
rights.” 111 N.M. 319, 324, 805 P.2d 88, 93 (Ct. App. 1990). We therefore respond to
Petitioner’s claims for custody and visitation separately. In order to evaluate Petitioner’s
standing case, we first consider statutory construction and legislative intent, and then we
analyze existing New Mexico case law.

{5}     The central issue is the application of Section 40-4-9.1(K). Therefore, we first
evaluate the plain language and legislative intent of the custody statute and the related
definitions in Section 40-4-9.1(K), (L) to determine whether the Legislature has expressly
limited custody actions to adoptive and natural parents, absent a finding of unfitness of the
natural or adoptive parent. Within that context, we analyze Petitioner’s argument that she
has standing under Section 40-4-9.1(K) because of the definition of “parent” in Section 40-4-
9.1(L)(5). We then analyze our Supreme Court’s expansion of Section 40-4-9.1(K) to allow
for standing in cases in which extraordinary circumstances are present to determine whether
it applies to Petitioner.

{6}     We next consider Petitioner’s arguments under the UPA. We first consider whether
Section 40-11-5(A)(4), the “holding out” provision with regard to paternity, should be
gender neutral and therefore grant Petitioner standing for her custody claim as the child’s
natural mother. We then evaluate Sections 40-11-7 and 40-11-21 to determine whether they
are sufficient to grant Petitioner standing for custody as the child’s natural mother.

{7}     After determining that New Mexico statutory law does not grant Petitioner standing
to bring her custody claim, we discuss existing case law regarding custody for a non-parent.
We address Petitioner’s claim that the courts have plenary equitable power and that the best
interests of the child should override any statutory limit to standing for a custody case in
Section 40-4-9.1(K). We then address the effect of cases that appear to acknowledge

                                              3
standing for a person in Petitioner’s situation.

{8}     Finally, we address Petitioner’s claim for visitation and the courts’ equitable powers
in situations not expressly limited by the Legislature. We discuss the allegations in
Petitioner’s petition to determine whether the district court’s consideration of the best
interests of the child might warrant granting standing to Petitioner. We also address
Respondent’s assertion that Troxel v. Granville, 530 U.S. 57 (2000), limits a non-parent’s
claim for standing with respect to custody and visitation.

STANDING

{9}      Petitioner argues that the district court erred in dismissing her petition for failure to
state a claim because, “under numerous sources of law, [Petitioner] has parental standing to
seek custody of, and visitation with, [the child].” “When a statute creates a cause of action
and designates who may sue, the issue of standing becomes interwoven with that of subject
matter jurisdiction. Standing then becomes a jurisdictional prerequisite to an action.” Am.
Civil Liberties Union of N.M. v. City of Albuquerque, 2008-NMSC-045, ¶ 9 n.1, 144 N.M.
471, 188 P.3d 1222 (internal quotation marks and citation omitted). We review de novo
whether a party has standing to bring a claim. Vescio v. Wolf, 2009-NMCA-129, ¶ 8, 147
N.M. 374, 223 P.3d 371. We also review “[a] district court’s decision to dismiss a case for
failure to state a claim under Rule 1-012(B)(6) . . . de novo.” N.M. Pub. Sch. Ins. Auth. v.
Arthur J. Gallagher & Co., 2008-NMSC-067, ¶ 11, 145 N.M. 316, 198 P.3d 342 (internal
quotation marks and citation omitted). In addressing Rule 1-012(B)(6) claims, we accept
as true all well-pleaded facts and resolve any doubt in favor of the complaint’s sufficiency.
N.M. Pub. Sch. Ins. Auth, 2008-NMSC-067, ¶ 11; see also Vescio, 2009-NMCA-129, ¶ 8
(stating the same with regard to standing). We uphold orders to dismiss for failure to state
a claim only when it appears that the plaintiff cannot recover or obtain relief under any set
of facts provable under the complaint. N.M. Pub. Sch. Ins. Auth, 2008-NMSC-067, ¶ 11.

Section 40-4-9.1(K)

{10} Section 40-4-9.1(K) states, “[w]hen any person other than a natural or adoptive
parent seeks custody of a child, no such person shall be awarded custody absent a showing
of unfitness of the natural or adoptive parent.” When interpreting legislative intent, we first
look to the plain language of a statute and give words their ordinary meaning. Albuquerque
Bernalillo County Water Util. Auth. v. N.M. Pub. Regulation Comm’n, 2010-NMSC-013, ¶
52, 148 N.M. 21, 229 P.3d 494. We will not read language into a statute that is not there,
particularly when it makes sense as written. Cobb v. State Canvassing Bd.,
2006-NMSC-034, ¶ 34, 140 N.M. 77, 140 P.3d 498.

{11} Subsection (K) is our Legislature’s codification of the oft-discussed parental
preference doctrine. See Rhinehart, 111 N.M. at 324, 805 P.2d at 93 (stating that Sections
40-4-9.1(K), 40-4-7 to -9.1, and 40-9-1, when taken together, “reflect the [L]egislature’s
intent to grant trial courts wide discretion in awarding either custody or visitation based on

                                                4
the best interests of the children, subject to [the] parental preference doctrine in custody
matters” (emphasis omitted)); see also In re Guardianship of Ashleigh R., 2002-NMCA-103,
¶ 14, 132 N.M. 772, 55 P.3d 984 (“New Mexico has long recognized the parental preference
doctrine, which holds that in a custody contest between a parent and a non[-]parent, the
parent should generally prevail unless he or she is found unfit.”). The doctrine creates a
presumption that the interests of minor children are best served in the custody of the natural
parents and places the burden of proving the contrary onto the non-parent. See In re
Guardianship of Ashleigh R., 2002-NMCA-103, ¶ 14.

{12} The plain language of the statute is clear: “When any person other than a natural or
adoptive parent seeks custody of a child, no such person shall be awarded custody absent a
showing of unfitness of the natural or adoptive parent.” Section 40-4-9.1(K). Giving the
words their ordinary meaning, Subsection (K) explicitly states that, unless there is a showing
of unfitness of the natural or adoptive parent, only a natural or adoptive parent has standing
to bring a claim for custody. Under Subsection (K), therefore, a third party—one other than
the natural or adoptive parent—would have standing to bring a custody claim, as long as
there is a showing of unfitness of the natural or adoptive parent. The definitions section,
Subsection (L), states who such a third party may be. A third type of parent could be that
“person who is acting as a parent who has or shares legal custody of a child or who claims
a right to have or share legal custody.” Section 40-4-9.1(L)(5) (emphasis added). In other
words, a person “who claims a right to have or share legal custody” is a parent under
Subsection (L)(5) and would have standing to bring a custody claim upon a showing of
unfitness of the adoptive or natural parent under Subsection (K).

{13} Petitioner argues that Section 40-4-9.1(K) does not bar her from seeking custody,
even though there has been no finding of unfitness of the adoptive mother, Respondent.
Specifically, Petitioner argues that, because Section 40-4-9.1(L)(5) defines “parent” to
include a “person who is acting as a parent who has or shares legal custody of a child or who
claims a right to have or share legal custody,” Petitioner is a “parent” under the statute, read
as a whole. This argument would have us read a third type of parent into Subsection
(K)—that “parent” as defined in Subsection (L)(5) is a “person who is acting as a parent who
has or shares legal custody of a child or who claims a right to have or share legal custody.”
However, we do not read language into a statute that is not there, Cobb, 2006-NMSC-034,
¶ 34, and the Legislature explicitly limited standing to natural and adoptive parents. Section
40-4-9.1(K). We are particularly hesitant to do so in this case, when the Legislature clearly
contemplated other types of “parent” in Subsection (L), yet declined to include this third
type of “parent” in Subsection (K).

{14} Moreover, whenever possible, statutes must be read as a whole and in harmony with
one another. State v. Smith, 2004-NMSC-032, ¶ 10, 136 N.M. 372, 98 P.3d 1022. As stated
above, Section 40-4-9.1(K) would allow a person “who claims a right to have or share legal
custody”—a “parent” under Subsection (L)—to have standing to bring a custody claim upon
a showing of unfitness of the adoptive or natural parent. We cannot read the statute any
other way without adding words that the Legislature did not see fit to add or rendering

                                               5
portions of Section 40-4-9.1 meaningless. See Int’l Ass’n of Firefighters v. City of Carlsbad,
2009-NMCA-097, ¶ 11, 147 N.M. 6, 216 P.3d 256 (“We seek to give meaning to all parts
of the statute, such that no portion is rendered surplusage or meaningless.”), cert. denied,
2009-NMCERT-007, 147 N.M. 363, 223 P.3d 360.

{15} Indeed, if we were to read Subsection (L) as Petitioner requests, granting a non-
adoptive or non-natural parent standing to bring a custody claim, we would be rendering
meaningless the Legislature’s limitation of standing to adoptive and natural parents. See §
40-4-9.1(K). We reiterate that the Legislature knows how to include language in a statute
if it so desires. Cf. State v. Katrina G., 2007-NMCA-048, ¶ 17, 141 N.M. 501, 157 P.3d 66
(stating that, if the Legislature had wanted to draft a children’s code statute with the same
expiration of jurisdiction as seen in the adult code, it could have done so). Instead, the
Legislature chose to limit Subsection (K) to natural and adoptive parents, and we decline to
expand the statute beyond that limitation. Cf. Rhinehart, 111 N.M. at 325, 805 P.2d at 94
(stating that in a custody dispute between a natural father and a step-mother that the court’s
discretion in custody cases is limited by Subsection (K) in that there must be a showing of
unfitness in the natural or adoptive parent “[b]efore the court can award any person other
than a natural or adoptive parent custody of the children”).

{16} Respondent argued at oral argument before this Court that the dissolution of marriage
statutes, NMSA 1978, §§ 40-4-1 to -20 (1901, as amended through 2008), do not apply to
this case because there was no marriage or dissolution thereof. We do not read Section 40-4-
9.1 to apply only to proceedings between a husband and a wife. Although Chapter 40,
Article 4 of the 1978 compilation of the New Mexico statutes is entitled “Dissolution of
Marriage,” the Legislature did not limit the application of the entire chapter to proceedings
between present or former married parties. First, the title assigned by the Compilation
Commission does not limit the reach of a statute. See NMSA 1978, § 12-2A-13 (1997)
(“Headings and titles may not be used in construing a statute or rule unless they are
contained in the enrolled and engrossed bill or rule as adopted.”). Section 40-4-9.1 was
originally adopted in 1981. As enrolled and engrossed, the bill stated that it was “relating
to custody of minors; providing for joint custody under certain circumstances.” 1981 N.M.
Laws, ch. 112. The bill amending Section 40-4-9.1 in 1986 stated that the bill was “relating
to child custody; providing for [the] rights, obligations and procedures in joint custody
determinations; repealing and enacting a section of the NMSA 1978.” 1986 N.M. Laws, ch.
41.

{17} Moreover, the express language of portions of Chapter 40, Article 4 specifically
contemplates proceedings between parties who are not and who have never been married.
For instance, Section 40-4-9(A) applies to “any case in which a judgment or decree will be
entered awarding the custody of a minor.” Section 40-4-11 applies to “any proceeding
before a court in which the court has the duty or authority to determine liability of a parent
for the support of minor children or the amount of that support.” Section 40-4-11.1(A)
applies to “any action to establish or modify child support.” Each of these sections addresses
the rights and obligations of “parents,” not “spouses,” regarding custody of their minor

                                              6
children and child support. See also NMSA 1978, § 40-4B-10 (1988) (requiring Child
Support Hearing Officers to apply child support guidelines, as established by statute (Section
40-4-11.1), the Supreme Court, or the Secretary of Human Services). In contrast, other
portions of Chapter 40, Article 4 expressly state that the section only applies to proceedings
between a husband and wife. See, e.g., § 40-4-5 (defining the jurisdiction of a district court
“to decree a dissolution of marriage”).

{18} Section 40-4-9.1 similarly concerns the rights of parents to custody of their child.
It defines the forms of custody and states the presumption for joint custody as being in the
best interests of a child. Section 40-4-9.1(A), (L). It specifically defines a “parent” subject
to its provisions as “a natural parent, adoptive parent or person who acting as a parent who
has or shares legal custody of a child or who claims a right to have or share legal custody.”
Section 40-4-9.1(L)(5). It makes no mention of the need for an existing or prior spousal
relationship for its application.

{19} Our reading is supported by appellate decisions that have applied portions of Chapter
40, Article 4 to proceedings not involving a dissolution of marriage. For example, in In re
Adoption of J.J.B., 119 N.M. at 652, 894 P.2d at 1008, our Supreme Court considered the
“public policy” of New Mexico in custody matters as stated in Section 40-4-9.1(K) in
discussing the custody rights to a child in an adoption proceeding between a natural parent
and an adoptive parent that did not involve the dissolution of marriage. In Grant v.
Cumiford, 2005-NMCA-058, ¶¶ 2, 13, 137 N.M. 485, 112 P.3d 1142, this Court applied the
“presumption that joint custody is in the best interests of the child” found in Section 40-4-
9.1(A) in a case involving parents who were “never married.” We also applied various
provisions of the statutory child support guidelines on “Imputation of Income” and
“Abatement” of child support found in Section 40-4-11.1. Grant, 2005-NMCA-058, ¶¶ 22-
32.

{20} There is one case that can be read inconsistently. In Vescio, 2009-NMCA-129, ¶ 12,
this Court mentioned Section 40-4-9.1(K) in connection with an aunt’s custody petition.
Relying on In re Guardianship Petition of Lupe C., 112 N.M. 116, 119, 812 P.2d 365, 368
(Ct. App. 1991), we stated that the section “authorizing the court to make an order for the
guardianship of a child . . . only applies in the context of marital dissolution.” Vescio, 2009-
NMCA-129, ¶ 12. In re Guardianship Petition of Lupe C. involved Section 40-4-7(B) and
(C), not Section 40-4-9.1. 112 N.M. at 119, 812 P.2d at 368. Section 40-4-7(B) and (C)
only apply to dissolution of marriage cases. To the extent that Vescio can be read to limit
the application of Section 40-4-9.1 to cases involving marital dissolution, we hold that it
should not be so interpreted. See Grant, 2005-NMCA-058, ¶¶ 2, 13 (noting that the
presumption of Section 40-4-9.1(A) that joint custody is in the best interests of the child
applied in a case in which parents were never married); cf. Normand ex rel. Normand v. Ray,
109 N.M. 403, 406-08, 785 P.2d 743, 746-48 (1990) (addressing Section 40-4-9(B) and (C)
in a case involving a child custody dispute between the father and maternal grandparents in
which there was no dissolution of marriage before the court).


                                               7
{21} Regardless, the argument that Section 40-4-9.1 does not apply if there is no marriage
or dissolution of marriage before the court does not address the parental preference doctrine
that underlies Section 40-4-9.1. Even if Section 40-4-9.1 were not to apply to custody issues
between non-spouses, the parental preference doctrine would nevertheless apply. See In re
Guardianship Petition of Ashleigh R., 2002-NMCA-103, ¶ 14 (stating application of parental
preference doctrine in custody contest between parent and non-parent).

{22} Finally with respect to our analysis of Section 40-4-9.1(K), we note that the dissent
observes that legislatures in other states have enacted statutes that specifically deal with the
factual circumstances similar to this case and that our Legislature has not done so. Indeed,
the New Mexico Legislature has not enacted such a statute. However, it is because the
Legislature has not acted to grant Petitioner standing to seek custody that we reach our
conclusion. Section 40-4-9.1 addresses standing of non-parents to seek custody of a child
and limits it to circumstances in which there is a showing of parental unfitness. It is the
Legislature’s responsibility to expand the requirements for standing if it wishes to do so.

Expansion of Section 40-4-9.1(K)—Extraordinary Circumstances

{23} Our Supreme Court has recognized an expansion of the express language of Section
40-4-9.1(K) to allow for allegations of “extraordinary circumstances.” In re Adoption of
J.J.B., 119 N.M. 638, 652, 894 P.2d 994, 1008 (1995) (stating that, despite the public policy
in New Mexico as demonstrated by Section 40-4-9.1(K), when “[c]ustody based upon the
biological parent-child relationship [is] at odds with the best interests of the child[,] the best
interests of the child must prevail” and that “[a] parent’s right is not absolute and under
extraordinary circumstances, custody of a child may be awarded to a non[-]parent over the
objections of a parent”). Petitioner argues in her reply brief, and made the assertion at oral
argument, that extraordinary circumstances exist in this case. However, she made no such
argument before the district court or in her brief in chief. See Rule 12-216(A) NMRA (“To
preserve a question for review it must appear that a ruling or decision by the district court
was fairly invoked, but formal exceptions are not required, nor is it necessary to file a motion
for a new trial to preserve questions for review.”); State v. Foster, 1999-NMSC-007, ¶ 41,
126 N.M. 646, 974 P.2d 140 (stating that “issues not addressed in an appellant’s brief will
be deemed abandoned”), abrogated on other grounds as recognized by Kersey v. Hatch,
2010-NMSC-020, 148 N.M. 381, 237 P.3d 683.

{24} Nonetheless, even if we were to accept Petitioner’s assertion that she “implicitly”
argued extraordinary circumstances in her petition by stating that psychological harm would
come to the child if Petitioner was not permitted to have a continuing relationship with the
child, we are not persuaded that Petitioner’s allegation of psychological harm rises to the
level of extraordinary circumstances contemplated by our Supreme Court in In re Adoption
of J.J.B. Indeed, the Court in that case stated that “special facts and circumstances might be
found that would provide an extraordinary reason for taking a child from its parent” and that
these special circumstances seem to “be the anticipation of unique situations that are beyond
the usual unfit-parent criteria and are not expressly covered by statute or case law.” 119

                                                8
N.M. at 652, 894 P.2d at 1008 (internal quotation marks and citation omitted). Although the
Court declined to enumerate specific facts and circumstances, the examples that it gave
indicate that extraordinary circumstances are instances in which there have been no formal
allegations of unfitness, but in which “the natural parent’s circumstances have so
significantly changed as to render the parent unfit” or “the child’s contact with the biological
parents has been so minimal that he or she has significantly bonded with [other] parents.”
Id. at 652-53, 894 P.2d at 1008-09 (citing also to a New York case that indicates that an
extraordinary circumstance could exist if removal of the child from the custody of a non-
parent “is grave enough to threaten destruction of the child,” even if there has been no formal
charge of abandonment or persisting neglect by the parent (internal quotation marks and
citation omitted)). See also In re Guardianship of Ashleigh R., 2002-NMCA-103, ¶ 24 (“A
lengthy separation between parent and child can be an exceptional circumstance justifying
the denial of custody to an otherwise fit parent.”). The Court further stated that
acknowledging an extraordinary circumstance amounts to an “involuntary disruption of the
bond between parent and child” and that it is “met only with great difficulty, for evident
reasons of humanity and policy.” Id. at 653, 894 P.2d at 1009 (internal quotation marks and
citation omitted). Petitioner has not asserted that the relationship between Respondent and
the child is so weak as to amount to unfitness, that there would be “destruction of the child”
if Petitioner is not granted custody, or that there should be any disruption of the parent and
child relationship between Respondent and the child. We therefore decline to further address
Petitioner’s extraordinary circumstances argument.

The UPA

{25} Petitioner raises another argument under the UPA, arguing that the UPA presumes
her to be the child’s parent, entitling her to standing to bring her custody claim. Petitioner
relies upon Sections 40-11-5(A)(4) and 40-11-21 and asserts that the Legislature intended
the “holding out provision” pertaining to paternity, Section 40-11-5(A)(4), to apply equally
to women. We apply the 2008 version of the UPA because that is the statute that was in
effect at the time of the proceedings below.

{26} Section 40-11-5(A)(4) states that “[a] man is presumed to be the natural father of a
child if . . . while the child is under the age of majority, he openly holds out the child as his
natural child and has established a personal, financial or custodial relationship with the
child.” Section 40-11-21 states, in pertinent part, “[i]nsofar as practicable, the provisions
of the [UPA] applicable to the father and child relationship apply” to a mother and child
relationship. Petitioner would have us read these statutes together to accord her standing
because her allegations assert that she held out the child as her own and, as such, should be
“presumed to be the natural [mother] of [the] child.” Section 40-11-5(A).

{27} Section 40-11-4 of the UPA states that the “parent and child relationship” can be
established by (1) the natural mother by proof of her having given birth or as provided by
Section 40-11-21, (2) the natural father as provided by the UPA, and (3) an adoptive parent
under the Adoption Act. As stated above, whenever possible, statutes must be read as a

                                               9
whole and in harmony with one another. See Smith, 2004-NMSC-032, ¶ 10. Moreover, we
look first to the plain language of a statute and give words their ordinary meaning.
Albuquerque Bernalillo County Water Util. Auth., 2010-NMSC-013, ¶ 52. Section 40-11-4
expressly provides for the methods by which a woman can assert her status as the natural
mother—by proof of her having given birth or by some other proof of being a natural
mother, as provided by Section 40-11-21. The methods by which a man can assert his status
as a natural father are provided in Section 40-11-5. If we were to read Section 40-11-5 to
apply to women, pursuant to Section 40-11-21, we would be rendering the portion of Section
40-11-4 ascribing the methods by which a woman may assert her status as a natural mother
surplusage. See Int’l Ass’n of Firefighters, 2009-NMCA-097, ¶ 11 (“We seek to give
meaning to all parts of the statute, such that no portion is rendered surplusage or
meaningless.”). Therefore, we decline to read Section 40-11-5(A)(4) in this impracticable
way. See § 40-11-21 (stating that “[i]nsofar as practicable, the provisions of the [UPA]
applicable to the father and child relationship apply” to a mother and child relationship).

{28} Petitioner further argues that Sections 40-11-7 and 40-11-21 allow her, as an
“interested party,” to bring an action to determine the existence of a mother and child or a
parent and child relationship. Section 40-11-7 is titled “[d]etermination of father and child
relationship; who may bring action; when action may be brought.” Although the statute
states that any interested party may bring an action to determine the existence of a parent and
child relationship, Section 40-11-21 addresses the mother and child relationship, so we may
fairly assume that Section 40-11-7 addresses the father and child relationship, as stated in
its title. See State v. Lewis, 2008-NMCA-070, ¶ 19, 144 N.M. 156, 184 P.3d 1050
(indicating that the title of a statute may be used to determine legislative intent); see also §
12-2A-13 (stating that titles may be used in construing a statute if they are contained in the
enrolled or engrossed bill). As to Section 40-11-21, to read the statutes harmoniously, we
must limit Section 40-11-21 to its use, as referenced by Section 40-11-4. If we were to
expand Section 40-11-21 to allow an interested party to assert the existence of a mother and
child relationship with a woman who is not the biological or adoptive mother, we would be
rendering Section 40-11-4 meaningless insofar as it establishes the parent and child
relationship as used in the UPA as relating to a natural mother, natural father, or adoptive
mother. See Int’l Ass’n of Firefighters, 2009-NMCA-097, ¶ 11 (stating that we do not read
statutes to render portions of it meaningless); see also § 40-11-2 (defining the “parent and
child relationship” as used in the UPA as “the legal relationship existing between a child and
his natural or adoptive parents [and] includes the mother and child relationship and the
father and child relationship” (emphasis added)).

{29} Additionally, as stated above, Section 40-11-4 states that a parent and child
relationship can be established between a child and a natural mother by proof of the mother
having given birth to the child or by some other proof of natural motherhood, as provided
for in Section 40-11-21, which allows an interested party to assert the existence of such a
relationship. Section 40-11-4 does not, however, allow for a parent and child relationship
between a child and a natural mother to be established by proof of some other kind of parent
and child relationship—in other words, nothing in the statute indicates that the Legislature

                                              10
contemplated a parent and child relationship being established between a natural mother and
a child with regard to anyone other than a natural mother. See Black’s Law Dictionary 1127
(9th ed. 2009) (referring to “birth mother” or “biological mother” under the definition of
“natural mother”); id. at 1106 (defining “birth mother” within the definition of “mother” as
“[t]he woman who carries an embryo during the gestational period and who delivers the
child” and allowing for instances of artificial insemination, and defining “biological mother”
as “[t]he woman who provides the egg that develops into an embryo”). We will not read
additional meaning into a statute that is not there, particularly when it makes sense as
written. See Cobb, 2006-NMSC-034, ¶ 34. Petitioner does not claim that she has given birth
to or legally adopted the child. Therefore, she has not established standing under Section
40-11-21 by which she may establish a parent and child relationship as that relationship is
used in the UPA.

Equity and Common Law

{30} We next address Petitioner’s arguments that New Mexico case law gives her standing
based on A.C. v. C.B., 113 N.M. 581, 829 P.2d 660 (Ct. App. 1992), and Barnae v. Barnae,
1997-NMCA-077, 123 N.M. 583, 943 P.2d 1036, and that Subsection (K) “does not take into
account the reality of psychological parentage and certainly does not trump the courts’
plenary equitable powers.” Petitioner alleges that she is “the equitable parent” of the child
and that her parental right should be recognized under an equitable parent or de facto parent
theory to maintain the stability of her parent-child relationship with the child. We first
discuss A.C. and Barnae, which, although informative, are not entirely analogous to the issue
before us.

{31} A.C. involved an oral agreement between a biological mother and her partner, the
petitioner, entered before the birth of the mother’s child, to raise the child as co-parents. 113
N.M. at 582, 829 P.2d at 661. The petitioner claimed that she participated in the rearing of
the child, including sharing in the financial responsibility, for several years. Id. After the
parties separated, the petitioner filed an action, seeking joint legal custody and time sharing.
Id. A.C. dealt primarily with the petitioner’s allegations that the biological mother
committed fraud, inducing the petitioner to dismiss the petition. However, this Court briefly
addressed the district court’s finding that “no valid legal marriage existed between the
parties, there was no adoption of the child by [the p]etitioner, and thus, [the p]etitioner had
no standing or enforceable rights.” Id. at 583, 829 P.2d at 662. We declined to “issue an
advisory opinion, particularly without the benefit of the district court’s findings of fact and
conclusions of law,” but stated that someone “in [the p]etitioner’s shoes may be able to
establish deprivation of a legally recognized right to maintain some type of continuing
relationship with the child.” Id. at 586, 829 P.2d at 665. We therefore stated that the
petitioner had “made a colorable claim of standing to seek enforcement of such claimed
rights.” Id. However, A.C. did not consider Section 40-4-9.1. See State v. Gamlen, 2009-
NMCA-073, ¶ 15, 146 N.M. 668, 213 P.3d 818 (“It is well established that cases are not
authority for propositions not considered.” (internal quotation marks and citation omitted)).
We decline to rely on a statement based on a hypothetical situation, which did not consider

                                              11
the relevant statute in our case, to override the Legislature’s stated public policy. See
Coppler & Mannick, P.C. v. Wakeland, 2005-NMSC-022, ¶ 8, 138 N.M. 108, 117 P.3d 914
(stating that “[t]he general equitable power of the district court cannot overcome the public
policy established by the Legislature”).

{32} Similarly, Barnae addressed a dispute between a biological mother and her partner,
the petitioner. 1997-NMCA-077, ¶ 2. Again, in that case, the petitioner did not legally
adopt the children, and, after the parties ended their relationship, the petitioner filed a
petition for custody and time sharing. Id. ¶¶ 2, 6. The primary issue was whether New
Mexico or California had jurisdiction, but, in dealing with the jurisdiction question, we
stated our view of New Mexico case law on the question of whether the petitioner had
standing to state a claim. Id. ¶ 10. Citing A.C., we reiterated that “a person in a situation
similar to [the p]etitioner’s made a colorable claim of standing to assert a legal right to some
type of continuing relationship with a child.” Barnae, 1997-NMCA-077, ¶ 10. We observed
that, “[e]ven though the standard factors used to determine forum non conveniens . . . weigh
in California’s favor, that analysis is obviated by the fact that the California courts would
dismiss this case if New Mexico were to relinquish jurisdiction,” noting that California
courts do not grant standing to individuals in the petitioner’s position. Id. ¶ 21. However,
again, this Court did not consider Section 40-4-9.1 in Barnae, and we will not rely on
Barnae for a proposition overriding the Legislature’s explicitly stated limitation in Section
40-4-9.1. See Coppler & Mannick, P.C., 2005-NMSC-022, ¶ 8 (“The general equitable
power of the district court cannot overcome the public policy established by the
Legislature[.]”); Gamlen, 2009-NMCA-073, ¶ 15 (“[C]ases are not authority for propositions
not considered.” (internal quotation marks and citation omitted)).

{33} Nor do the plenary equitable powers of the courts provide standing in this case. The
district court exercises comprehensive equitable powers when dealing with cases involving
children. Sanders v. Rosenberg, 1997-NMSC-002, ¶ 10, 122 N.M. 692, 930 P.2d 1144 (filed
1996). However, these equitable powers are not without limitation. See id. “It is a basic
maxim that equity is ancillary, not antagonistic, to the law.” Coppler & Mannick, P.C.,
2005-NMSC-022, ¶ 8 (internal quotation marks and citation omitted). The equitable powers
of the courts cannot overcome the Legislature’s established public policy, and courts may
not act in equity when doing so would violate an express provision of a statute. Id.; see also
State ex rel. Miera v. Chavez, 70 N.M. 289, 291, 373 P.2d 533, 534 (1962) (“The courts will
not add to such a statutory enactment, by judicial decision, words which were omitted by the
[L]egislature.”). The Legislature has acted and has enacted in Section 40-4-9.1(K) the
standards for standing to seek custody of a child. The Legislature’s action does not leave
room for us to invoke the courts’ inherent equitable authority to alter the legislative
standards. Indeed, the courts’ inherent equitable powers are “usually exercised when there
is no other parent or individual to act for the child.” In re Guardianship Petition of Lupe C.,
112 N.M. at 119, 812 P.2d at 368. Absent a finding of unfitness of the adoptive or natural
parent as required by Section 40-4-9.1(K), a non-parent does not have standing for a custody
claim because the equitable powers of the courts do not trump the public policy established
by the Legislature in Section 40-4-9.1(K). Coppler & Mannick, P.C., 2005-NMSC-022, ¶

                                              12
8.

Visitation and the Best Interests of the Child

{34} Petitioner’s arguments for visitation were included with her arguments as to custody.
The Legislature has not limited standing for visitation in the same way that it has with
custody in Section 40-4-9.1(K). Indeed, as expressed in Rhinehart with regard to step-parent
visitation, the requirement that a non-parent show unfitness of a natural or adoptive parent
before the court can consider the non-parent for custody “is not relevant to a determination
of visitation.” 111 N.M. at 325, 805 P.2d at 94 (citing Section 40-9-1 with regard to
grandparent visitation). In Rhinehart, this Court relied on the courts’ equitable powers and
declined to accept the “father’s argument that the [L]egislature’s failure to permit statutorily
the granting of visitation rights to stepparents necessarily prohibited the trial court from
exercising jurisdiction for that purpose in [that] appeal.” Id.; see also Sims v. Sims, 1996-
NMSC-078, ¶ 29, 122 N.M. 618, 930 P.2d 153 (stating that “the presumption is that the
[L]egislature, in enacting statutes, does not intend to overturn long-established equitable
powers beyond what it declares with irresistible clearness by either express declaration or
necessary implication” and clarifying that a statute that does not expressly limit a body of
law will not be construed as restricting the courts’ equitable powers (internal quotation
marks and citation omitted)). As stated above, the courts have “wide discretion in awarding
. . . visitation based on the best interests of the children.” Rhinehart, 111 N.M. at 324, 805
P.2d at 93.

{35} When reviewing a Rule 1-012(B)(6) dismissal, we accept well-pleaded facts as true.
N.M. Pub. Sch. Ins. Auth., 2008-NMSC-067, ¶ 11. Although many of the facts and
conclusions in the petition are disputed, doubts should be resolved in favor of the sufficiency
of the complaint. Id. The petition alleges that (1) Respondent adopted the child when she
was thirteen months old; (2) Petitioner did not adopt the child through the Russian agency
due to prejudice in Russia toward same-sex parents and race; (3) the parties raised the child
together, sharing physical custody of the child for over nine years, have “fully participated
in parenting her,” and “have held and continue to hold themselves out as parents of the
child”; (4) the parties are “fit and proper parents”; (5) Petitioner has provided for the
“physical, emotional, and social needs of the child”; and (6) “Petitioner and the . . . child
mutually acknowledge a relationship as parent and child.” These facts, if proven, assert a
colorable claim for standing for visitation, and the district court erred in relying on Section
40-4-9.1(K) to deny Petitioner standing for visitation. We express no opinion as to whether
the court should grant standing to Petitioner or whether the disputes should be resolved in
favor of Petitioner if standing is granted. We merely hold that the district court is not
restricted by Section 40-4-9.1(K) in considering visitation and, instead, can and should use
its equitable powers to consider the facts stated in the petition and determine whether
Petitioner should be granted standing for her visitation claim. See Rhinehart, 111 N.M. at
325, 805 P.2d at 94 (stating that courts have “inherent powers to act in the best interests of
the children” and that the “best interests are the paramount consideration for the court in
custody cases”).

                                              13
{36} Respondent argues that, in Troxel, the United States Supreme Court established that,
“[a]bsent allegations that [Respondent] is unfit, state interference with her decisions
regarding the care, custody and control of her child is unconstitutional and in derogation of
the rights of [Respondent].” 530 U.S. at 70. We are not persuaded that Troxel limits
standing for visitation as broadly as Respondent desires. In Troxel, the Court did state that
the Due Process Clause of the Fourteenth Amendment to the United States Constitution
“protects the fundamental right of parents to make decisions concerning the care, custody,
and control of their children.” Id. at 66. However, the Court was careful to hold that the
statute at issue in that case, Wash. Rev. Code. § 26.10.160(3) (2004), unconstitutionally
infringed on the fundamental right “as applied to [the respondent] in [that] case.” Troxel,
530 U.S. at 67 (emphasis added). Indeed, although the Court reiterated that “there is a
presumption that fit parents act in the best interests of their children,” id. at 68, it declined
to “consider the primary constitutional question passed on by the Washington Supreme
Court—whether the Due Process Clause requires all non[-]parental visitation statutes to
include a showing of harm or potential harm to the child as a condition precedent to granting
visitation.” Id. at 73. Instead, the United States Supreme Court held that the application of
the statute to the respondent and her family violated her due process right because the
Washington Superior Court’s reasons for awarding visitation to the petitioner demonstrated
that it “failed to accord the determination of [the respondent], a fit custodial parent, any
material weight” and, instead, involved “nothing more than a simple disagreement between
the Washington Superior Court and [the respondent] concerning her children’s best
interests.” Id. at 72, 75. In other words, Troxel does not stand for the proposition that a non-
parent could never be awarded visitation absent a finding of unfitness of the custodial parent.
Rather, as it expressly stated, it merely held that the statute, as applied to the respondent in
that case, violated the respondent’s due process rights. Id. at 75.

{37} In the present case, we do not see a similar violation of Respondent’s due process
rights. Cf. Deem v. Lobato, 2004-NMCA-102, ¶¶ 17, 21, 136 N.M. 266, 96 P.3d 1186
(declining to strike down New Mexico’s Grandparent’s Visitation Act as facially
unconstitutional in light of Troxel and stating that “[t]here is nothing in Troxel or the
resulting case law to suggest that the Supreme Court considered the presumption that a fit
parent acts in the best interests of his or her child to be other than a rebuttable
presumption”); see also Williams v. Williams, 2002-NMCA-074, ¶ 23, 132 N.M. 445, 50
P.3d 194 (stating that “Troxel may have altered, but it did not eradicate, the kind of
balancing process that normally occurs in visitation decisions”). Rhinehart, and even A.C.
and Barnae, do not indicate a sweeping allowance for visitation rights awarded to a non-
parent based solely on a district court’s opinion of the best interests of the child, regardless
of a custodial parent’s own determination. Instead, those cases and our holding today merely
allow a non-parent who has established a prima facie case for a parent and child relationship
to assert a claim for visitation. See Rhinehart, 111 N.M. at 325, 805 P.2d at 94 (stating that
the district court should use its discretion to grant visitation rights to a non-parent when
“visitation is in the best interests and welfare of the children”); see also Barnae, 1997-
NMCA-077, ¶ 10 (stating that “a person in a situation similar to [the p]etitioner’s made a
colorable claim of standing to assert a legal right to some type of continuing relationship

                                              14
with a child”); A.C., 113 N.M. at 586, 829 P.2d at 665 (stating that someone “in [the
p]etitioner’s shoes may be able to establish deprivation of a legally recognized right to
maintain some type of continuing relationship with the child”).

{38} It is still for the district court to determine whether Petitioner’s assertions are to be
believed and, if so, whether they are sufficient to warrant court-ordered visitation. Cf. In re
Adoption of Francisco A., 116 N.M. 708, 713, 866 P.2d 1175, 1180 (Ct. App. 1993) (stating
that “it may be in the child’s best interest to allow visitation by a step[-]parent who had not
adopted the child following divorce from the child’s natural parent” and that “our [S]upreme
[C]ourt has held that the district court sitting as a court of equity has inherent power
concerning issues of custody of minors” (internal quotation marks and citation omitted)); see
also In re Samantha D., 106 N.M. 184, 186, 740 P.2d 1168, 1170 (Ct. App. 1987) (stating
that parents do not have absolute rights in their children and that, instead, parental rights are
secondary to the best interests and welfare of the children). However, the district court erred
in dismissing Petitioner’s complaint for failure to state a claim on the grounds that Section
40-4-9.1(K) denied her standing for visitation.

ATTORNEY FEES

{39} Petitioner argues in her reply brief that she is entitled to reasonable attorney fees if
she prevails. She makes this argument in response to a statement made in Respondent’s
closing argument in her answer brief that she has been “forced . . . to engage in expensive
and protracted litigation.” Rule 12-213(C) NMRA states that the reply brief “shall reply
only to arguments or authorities presented in the answer brief.” Respondent’s complaint that
she has invested a significant amount of time and energy in this litigation is not an argument
sufficient to allow Petitioner to raise an argument for attorney fees for the first time in her
reply brief. See id.

CONCLUSION

{40} For the reasons stated in this opinion, we affirm in part and reverse in part and
remand to the district court to determine whether Petitioner has standing for visitation based
upon the best interests of the child.

{41}    IT IS SO ORDERED.

                                                ______________________________________
                                                JAMES J. WECHSLER, Judge

I CONCUR:

______________________________________
CELIA FOY CASTILLO, Judge


                                              15
MICHAEL E. VIGIL, Judge (Dissenting)

VIGIL, Judge (dissenting).

{42} The majority holds that the UPA does not apply to this case, and I agree. The
majority also holds that Petitioner has standing to seek visitation with the child, and I again
agree. However, the majority holds that Petitioner has no standing to seek a declaration of
parenthood or legal custody of the child. I cannot agree with this conclusion because this
may result in the permanent severance of a parent-child bond. Without standing, Petitioner
has no right to prove the allegations of the petition that, indeed, a parent-child bond has
formed between her and the child she helped raise from infancy for nine years.

{43} The child is helpless with the most to lose in this case: a loving, nurturing parent.
Petitioner asks for her day in court where she can seek to have her rights and duties as a
parent of the child confirmed. In concluding Petitioner has no standing to be heard, the
majority negates years of jurisprudence which recognizes the realities of a parent-child
relationship, and the child’s interest in her right to a parent.

STANDARD OF REVIEW

{44} I emphasize that the case is before us following a district court dismissal for failure
to state a claim upon which relief can be granted pursuant to Rule 1-012(B)(6). “In
reviewing the district court’s decision to dismiss for failure to state a claim, we accept as true
all well-pleaded factual allegations in the complaint and resolve all doubts in favor of the
complaint’s sufficiency. A Rule 12(B)(6) motion is only proper when it appears that [the]
plaintiff can neither recover nor obtain relief under any state of facts provable under the
claim.” N.M. Pub. Sch. Ins. Auth., 2008-NMSC-067, ¶ 11 (internal quotation marks and
citation omitted).

FACTUAL ALLEGATIONS

{45} The allegations contained in the petition are under oath. Petitioner desires to have
the rights afforded to a parent, and she is willing to take the responsibility of supporting the
child. Petitioner states that the parties were in a committed domestic relationship for fifteen
years, from August 1993, until August 2008. During their domestic relationship, Petitioner
and Respondent both went to Russia to adopt the child. However, Petitioner did not legally
adopt the child because Respondent told her “that there would be prejudice on the part of the
Russian adoption agencies both because of same sex parents and racial prejudice.” Thus,
Respondent adopted the child. The adoption took place in March 2000, when the child was
thirteen months old.

{46} Petitioner further alleges that “[s]ince the adoption of the child and until the parties’
separation, both parties have raised the child and have fully participated in parenting her.
Both parties have held and continue to hold themselves out as parents of the child.”

                                               16
Petitioner adds that she has provided for the physical, emotional, and social needs of the
child; that since the adoption of the child to the present, Petitioner performed a substantial
share of the care taking functions for the minor child and assumed a parental role by tending
to the child’s physical, emotional, and social needs on a day-to-day basis; that as a result, a
parent-child bond was formed between Petitioner and the child; and that Petitioner and the
child mutually acknowledge a parent and child relationship.

{47} Petitioner adds that Petitioner’s relationship with the child began with the consent
of the Respondent; that Petitioner has shared physical custody of the child for an extended
period of nine years; that Respondent cooperated in the development of the parent-child
relationship between Petitioner and the child; that Respondent held Petitioner out as the
child’s parent, and consented to and accepted Petitioner holding herself out as such; and that
Respondent assured Petitioner, through direct communications as well as through her
conduct, that Petitioner would remain the child’s parent.

{48} Petitioner contends Respondent is “estopped from denying Petitioner’s status as the
child’s parent,” and Petitioner “is the equitable parent of the minor child, and as such is
entitled to relief, including but not limited to the affirmation of Petitioner’s parental rights
by virtue of equitable estoppel.” Petitioner asserts, “[i]t is in the best interests of the child
that the Petitioner’s rights as a parent be affirmed under the equitable parent or de facto
parent theory, and that the established security and stability of the parent-child relationship
between the child and the Petitioner be maintained.” Accordingly, Petitioner asks the district
court to order that she “be declared a legal parent of the minor child”; that “both parties be
ordered to contribute to the support of the minor child”; that “the court determine custody
and timesharing”; and that the court grant other additional relief, consistent with the
foregoing.

{49} In my opinion, we must reverse the district court order of dismissal for three reasons.
First, Section 40-4-9.1(K) does not apply to the factual scenario presented to us in this case.
Secondly, even if Section 40-4-9.1(K) applies, the facts set forth in the petition constitute
“extraordinary circumstances” under existing case law to take the case out of the purview
of Section 40-4-9.1(K). Thirdly, accepting the allegations of the petition as true, New
Mexico common law grants Petitioner standing in this case. I discuss each of these points
below.

SECTION 40-4-9.1(K) DOES NOT APPLY

{50} The majority opinion relies almost exclusively on Section 40-4-9.1(K) to conclude
that Petitioner has no standing to bring her custody claim, even though Petitioner places no
reliance on this statute whatsoever in seeking to affirm the district court. Waiver rules aside,
because the district court relied on this statute in dismissing the petition, and because the
majority opinion relies so heavily on the statute, I also address this statute.



                                              17
{51} When the Legislature enacted this statute, it did not have the factual scenario before
us in mind. Instead, the Legislature clearly and unambiguously expressed its intent that the
statute only applies within the context of a dissolution of marriage between a husband and
wife or a proceeding for the disposition of children between a husband and wife without a
dissolution of marriage. I therefore conclude that Section 40-4-9.1(K) does not apply to the
facts before us in this case.

{52} Sections 40-4-1 to -20 are codified by the Compilation Commission in Chapter 40,
Article 4. Article 4 is entitled “Dissolution of Marriage.” The original statutes were
codified in Chapter 22, Article 7 of the 1953 Compilation, and Article 7 was entitled
“Divorce and Separation.” Chapter 319, Sections 1-14 of New Mexico Laws of 1973,
repealing and amending Sections 22-7-1 to -22 of the 1953 Compilation. When the 1978
Compilation came into effect, these statutes were placed under Chapter 40, Article 4, which
is entitled “Dissolution of Marriage.” Thus, since 1973, with the passage of Chapter 319,
Sections 1-14 of New Mexico Laws of 1973, and subsequent amendments, all of the statutes
in Chapter 40, Article 4 fall under “Dissolution of Marriage.” Section 1 (Section 40-4-1)
states the grounds upon which a dissolution of marriage may be decreed; Section 2 (Section
40-4-2) defines incompatibility as a basis for granting a dissolution of marriage; and Section
3 (Section 40-4-3) provides that when the “husband and wife” have permanently separated
and no longer live together as “husband and wife,” then “either may institute proceedings
in the district court for a division of property, disposition of children or alimony, without
asking for or obtaining in the proceedings, a dissolution of marriage.” (Emphasis added.)
Section 4 (40-4-4) then provides for venue in “[a]ny proceeding for the dissolution of
marriage, division of property, disposition of children or alimony, as provided for in this
chapter[.]” (Emphasis added.) The remaining provisions in Article 4, “Dissolution of
Marriage” all expressly relate to proceedings between a husband and wife, their children,
and their property. See Sections 40-4-5 to -9; 40-4-10 to -20.

{53} In 1981, within the foregoing context, the Legislature enacted “A new Section 40-4-
9.1 NMSA 1978[.]” Chapter 12, Section 1, New Mexico Laws of 1981. With this statute,
the Legislature for the first time expressed its preference that in a dissolution of marriage
case or a proceeding between a husband and wife for a “disposition of children” without a
dissolution of marriage as provided in Section 40-4-3, joint custody is preferred.
Importantly, the Legislature specifically directed that this new statute be placed with the
statutes dealing with “Dissolution of Marriage” under Chapter 40, Article 4.

{54} The present version of Section 40-4-9.1 was originally enacted by Chapter 41,
Section 1 of New Mexico Laws of 1986. Section 1 of the Session Laws directs, “Section 40-
4-9.1 NMSA 1978 (being Laws 1981, Chapter 112, Section 1) is repealed and a new Section
40-4-9.1 NMSA 1978 is enacted to read[.] ” (Emphasis added.) Thus, in 1986, the
Legislature reiterated the direction it gave in 1981 that this joint custody statute be placed
with the statutes dealing with “Dissolution of Marriage” under Chapter 40, Article 4.



                                             18
{55} The overall structure of Section 40-4-9.1 also demonstrates that it relates to children
of a husband and wife in the context of a dissolution of marriage case or a proceeding
between a husband and wife for the disposition of children without a dissolution of marriage.
I now refer to the specific subsections of Section 40-4-9.1. Subsection B addresses factors
which are to be considered in determining whether to award a joint custody and it
specifically refers to the parents of the children. It does so by reference to “each parent” and
“both parents.” The remaining Subsections (C) through (J) follow the same pattern in
referring to parents and their children and how to make a determination of joint custody.
Within this context, Subsection (K) refers to “any person other than a natural or adoptive
parent” who seeks custody. This subsection harmonizes with the remaining subsections and
statutes in that it addresses when a person other than a parent of the children seeks custody
of a child within the context of a dissolution of marriage case or a proceeding for
“disposition of children” without a dissolution of marriage. To read Subsection (K) as
proposed in the majority opinion makes Subsection (K) apply to a circumstance which the
Legislature did not envision, did not address, and did not provide for. The 1999 amendment
to Section 40-4-9.1 does not alter this conclusion.

{56} Again, the Legislature specifically directed that its preference for joint custody as set
forth in Section 40-4-9.1 applies to the disposition of children in a dissolution of marriage
action between a husband and wife or a proceeding between a husband and wife for the
disposition of their children without a dissolution of marriage. The Legislature specifically
directed that this statute be placed in Article 4 which addresses “Dissolution of Marriage.”
The case before us is clearly not a dissolution of marriage case or a case between a husband
and wife for disposition of children without a dissolution of marriage.

{57} Cases from other states indicate that when legislatures have considered circumstances
such as those before us in this case, they have responded. See In re E.L.M.C., 100 P.3d 546,
555-56 (Colo. App. 2004) (applying a statute granting standing to seek parental decision-
making responsibilities to a person other than a parent who had been in physical care of the
child for six months or more to a same sex partner where the other partner adopted a six-
month-old child under China law, and both partners parented the child during their seven-
year relationship); SooHoo v. Johnson, 731 N.W.2d 815, 818, 824 (Minn. 2007) (applying
a statute granting standing to seek visitation to a person with whom a child has resided for
at least two years to the same sex partner of an adoptive mother who adopted children from
China who had co-parented the children with the same sex partner); Kulstad v. Maniaci,
2009 MT 326, ¶ 28, 220 P.3d 595 (applying a statute granting standing to seek a parenting
interest where a person has established a parent-child relationship with a child to the same
sex partner of an adoptive mother); Mason v. Dwinnell, 660 S.E.2d 58, 65 (N.C. Ct. App.
2008) (applying a statute granting standing to a non-parent to seek custody of a child where
a parent-child relationship has developed to a same sex couple). Our own Legislature has
not yet addressed the factual scenario of this case.

EXTRAORDINARY CIRCUMSTANCES


                                              19
{58} Even if Section 40-4-9.1(K) somehow applies, the petition sets forth sufficient
“extraordinary circumstances” to qualify as an exception to 40-4-9.1(K). See In re Adoption
of J.J.B., 119 N.M. at 652, 894 P.2d at 1008 (stating that notwithstanding Section 40-4-
9.1(K), under extraordinary circumstances, custody may be awarded to a non-parent over the
objections of a parent).

{59} In J.J.B., the child was placed in the custody of prospective adoptive parents on
January 4, 1991. Id. at 641, 894 P.2d at 997. When the adoption was finalized in August
1992, the child had been with the prospective adoptive parents for eighteen months. Id. at
643, 894 P.2d at 999. During this time, the child’s natural father and the adoptive parents
were engaged in a custody dispute. Id. Our Supreme Court concluded that the district court
erred in terminating the natural father’s parental rights, and the adoption was therefore void.
Id. at 650-51, 894 P.2d at 1006-07. However, this did not mean that the father automatically
regained custody of the child. “Custody based upon the biological parent-child relationship
may be at odds with the best interests of the child. When that happens, the best interests of
the child must prevail.” Id. at 652, 894 P.2d at 1008. Our Supreme Court concluded that
extraordinary circumstances were present to allow an award of custody of the child to the
adoptive parents. Id. at 652-54, 894 P.2d at 1008-10. Petitioner’s status in this case, who
alleges she formed a parent-child bond with the child over a period of nine years is at least
as strong as the adoptive parents in J.J.B. Since the adoptive parents in J.J.B. had standing
to seek custody, Petitioner in this case likewise has standing.

{60} In In re Guardianship of Ashleigh R., 2002-NMCA-103, ¶ 15, we expressly cited to
J.J.B. as recognizing the presence of psychological parents as an extraordinary circumstance.
For the reasons stated in the next section of this dissent, the petition alleges that the elements
of a psychological parent exist. Other courts agree that the existence of a psychological
parent-child relationship constitutes exceptional circumstances. See V.C. v. M.J.B., 748 A.2d
539, 549-50 (N.J. 2000) (concluding that former same sex partner who is a psychological
parent of a child has standing to seek custody based on “exceptional circumstances”);
Clifford K. v. Paul S., 619 S.E.2d 138, 157 (W. Va. 2005) (concluding former same sex
partner who was psychological parent had standing to intervene in custody proceeding under
“exceptional cases” provision of statute).

{61} I do not agree that Section 40-4-9.1(K) applies to the facts before us in this case.
However, even if it could somehow be construed as applying, I would conclude that
“extraordinary circumstances” are present in this case. Since the majority disagrees, I
dissent.

NEW MEXICO COMMON LAW

{62} There being no statute which addresses standing in this case, I now look to the
common law to determine whether Petitioner has standing in this case.



                                               20
{63} I begin with Judge A. Joseph Alarid’s analysis in In re Guardianship of Victoria R.,
2009-NMCA-007, ¶¶ 14-15, 145 N.M. 500, 201 P.3d 169, wherein he discusses substantial
and persuasive authority supporting the concept of a psychological parent. After the
analysis, Judge Alarid notes, “older New Mexico cases also support recognition of
psychological parentage.” Id. ¶ 15. The cases referred to are Cook v. Brownlee, 54 N.M.
227, 230, 220 P.2d 378, 379 (1950) (upholding decision of the trial court finding that the
best interests of the child would be served by allowing the teenaged child to remain in the
custody of the maternal grandfather following the death of mother rather than returning the
child to the father with whom the child was barely acquainted); and Ex parte Pra, 34 N.M.
587, 588, 286 P. 828, 829 (1930) (upholding dismissal of the biological mother’s habeas
petition seeking custody of her nine-year-old son following the death of the child’s maternal
aunt; noting the evidence that mother had voluntarily delivered the child as an infant to the
aunt and uncle, that the aunt and uncle had cared for the child “as if he were their own son,”
and that the uncle and the child “have become greatly attached to and love each other as
father and child”).

{64} Moreover, more recent New Mexico cases support Petitioner’s position. I conclude
that A.C. is sufficiently on point. This case also involved a committed domestic relationship
between two women, one of whom was the biological mother of the child. The two women
lived together for approximately fourteen years before separating. 113 N.M. at 582, 829
P.2d at 661. Seven years prior to the separation, the parties entered into an oral agreement
to raise a child as co-parents and the biological mother gave birth to the child who was
conceived through artificial insemination. Id. The partner (who was not the biological
mother) alleged that after the birth she shared the responsibility of caring for the child;
participated in setting up a trust fund for the child’s education, as well as a savings account
and life insurance policy for the child’s benefit; and that she shared the financial
responsibility for raising the child. Id. The partner filed an action seeking joint legal
custody and time sharing. Id.

{65} The district court entered an order dismissing the partner’s petition with prejudice
after the parties entered into a settlement agreement which provided for dismissal of the
action with prejudice. Id. Five months after the dismissal, the partner filed a verified
petition to set aside or reopen the case under Rule 1-060(B)(3) NMRA. A.C., 113 N.M. at
582, 829 P.2d at 661. The basis alleged for reopening the case was that the biological
mother refused to reduce the agreement to writing. Id. at 583, 829 P.2d at 662. The
biological mother responded to the motion to reopen the judgment by moving for summary
judgment on grounds that she was fit as a parent and that no legal relationship existed
between the child and the partner that would confer upon the partner any rights, privileges,
duties, or obligation. Id. The partner responded to the motion for summary judgment
asserting that material issues of fact existed about whether the agreements between the
parties had been made and whether she was a de facto parent. Id. The district court granted
the biological mother’s motion for summary judgment. Id. The district court found there
was no valid legal marriage between the parties and that because the partner had not adopted
the child, she had no standing or enforceable rights. Id.

                                             21
{66} On appeal, we stated, “[a] determination of [the partner’s] rights depends on her first,
establishing a basis for setting aside the order of dismissal and, assuming she is successful
in doing so, second, establishing a basis for either shared custody or visitation.” Id. We held
that the partner “made a prima facie showing which, if proved, would justify setting aside
the dismissal and authorize consideration of her right to continue her relationship with the
child.” Id. We first held that if the district court found that an agreement was made and
found fraud, misrepresentation, or other conduct on the part of the biological mother, which
induced the partner to agree to the dismissal, the district court should then proceed to
consider what rights, if any, would be conferred on the partner by reason of any agreements
made or actions taken. Id. at 584, 829 P.2d at 663. We discussed authorities addressing the
rights of non-traditional parents and related significant issues. After considering those
authorities, we concluded, “One in [the partner’s] shoes may be able to establish deprivation
of a legally recognized right to maintain some type of continuing relationship with the
child.” Id. at 586, 829 P.2d at 665. Accordingly, we specifically held, “[t]he [partner] has
made a colorable claim of standing to seek enforcement of such claimed rights.” Id.

{67} In Barnae, two women lived in California for ten years in a committed relationship
during which they both contributed to the upbringing of two children. 1997-NMCA-077,
¶ 1. The partner never legally adopted, or sought to adopt, the children. Nevertheless all
four lived together in the same house, excluding brief separations until the partner
permanently left the biological mother’s household. Id. ¶ 2. After concluding the action
could properly be maintained in New Mexico, id. ¶ 8, we noted A.C. and said, “New Mexico
. . . has held that a person in a situation similar to [the partner] made a colorable claim of
standing to assert a legal right to some type of continuing relationship with a child.” Barnae,
1997-NMCA-077, ¶ 10.

{68} Thus, in my opinion, A.C. and Barnae grant Petitioner standing in this case. I
therefore also disagree with the analysis of these cases by the majority. Majority Opinion
¶¶ 30-32. The issue before us is not whether Petitioner will prevail on the merits, but
whether the assertions she makes in the petition are sufficient to confer standing. I believe
they are.

{69} The majority does not address what Petitioner must prove to be entitled to relief. In
discussing a psychological parenthood relationship, Judge Alarid in In re Guardianship of
Victoria R., 2009-NMCA-007, ¶ 14 n.6, refers to the four-part test enunciated in In re
E.L.M.C., 100 P.3d at 560:

       (1) the legal parent consented to and fostered the nonparent’s formation and
       establishment of a parent-like relationship between the nonparent and the
       child; (2) the nonparent and the child lived together in the same household;
       (3) the nonparent assumed obligations of parenthood by taking significant
       responsibility for the child’s care, education and development, including
       contributing towards the child’s support, without expectation of financial


                                             22
       compensation, and (4) the nonparent has established a parental role sufficient
       to create with the child a bonded, dependent relationship parental in nature.

Other courts have adopted this test. See V.C., 748 A.2d at 554 (concluding that once a third
party has been determined to be a psychological parent to a child, she stands in legal parity
with the legal parent for custody and visitation issues); Rubano v. DiCenzo, 759 A.2d 959,
974 (R.I. 2000) (concluding same sex partner of biological mother had standing to establish
a psychological parenthood relationship with the child and thereby enforce the parties’
visitation agreement); In re Custody of H.S.H.-K, 533 N.W.2d 419, 420, 435-36 (Wis. 1995)
(remanding to the trial court for a determination of whether same sex partner of biological
mother could prove elements of a psychological parent, and thus obtain visitation); see also
The American Law Institute, Principles of the Law of Family Dissolution, § 2.03 (2000)
(recognizing and adopting standards for proving a “parent by estoppel” and a “de facto
parent”).

{70} I would adopt the In re E.L.M.C. test as set forth above. This test preserves the
child’s relationship with an adult who has functioned as a parent, thereby serving the child’s
best interests; it protects the constitutional rights of legal parents because a psychological
relationship can only be fostered with their consent and assistance; and it strictly limits who
can qualify as a psychological parent.

{71} The majority opinion recognizes that the district court exercises comprehensive
equitable powers when dealing with cases involving children. Majority Opinion ¶ 33.
Sanders v. Rosenberg, 1997-NMSC-002, ¶ 10, 122 N.M. 692, 930 P.2d 1144. This exercise
of comprehensive, plenary equitable power, under the foregoing authorities, grants Petitioner
standing to seek to the relief she seeks in her verified petition. Other courts have come to
this conclusion under circumstances similar to those in this case. See C.E.W. v. D.E.W.,
2004 ME 43, ¶¶ 2, 10, 845 A.2d 1146 (concluding that as a corollary of a court’s equitable
jurisdiction to determine a child’s best interests, same sex partner of biological mother had
standing to be considered for an award of parental rights and responsibilities as a de facto
parent); T.B. v. L.R.M., 786 A.2d 913, 917 (Pa. 2001) (concluding that where a same sex
partner assumed a parental status and assumed parental duties with the biological mother’s
consent, the child’s best interests require that the third party be granted standing to litigate
whether that relationship should be maintained); In re Parentage of L.B., 122 P.3d 161, 163
(Wash. 2005) (en banc) (concluding that same sex partner of biological mother who alleged
she was a de facto parent had standing to petition for rights and responsibilities of shared
parentage under equitable power of the court). Since the majority disagrees, I dissent.

CONCLUSION

{72} I conclude that Petitioner should be granted her day in court to prove whether she and
the child have bonded as parent and child, and whether it is in the best interests of the child
for Petitioner to be granted custody. Since the majority disagrees, I dissent.


                                              23
                                          ______________________________________
                                          MICHAEL E. VIGIL, Judge
Topic Index for Chatterjee v. King, Docket No. 29,823

AE                  APPEAL AND ERROR
AE-SR               Standard of Review

CD                  CHILDREN
CD-CS               Custody
CD-UP               Uniform Parentage Act

CP                  CIVIL PROCEDURE
CP-SD               Standing

DR                  DOMESTIC RELATIONS
DR-AD               Adoption
DR-CD               Child Custody
DR-CS               Child Custody Jurisdiction
DR-VR               Visitation Rights

JD                 JURISDICTION
JD-SM              Subject Matter

ST                 STATUTES
ST-CN              Constitutionality
ST-IP              Interpretation
ST-LI              Legislative Intent




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