December 01, 2010 – Bani Chatterjee v. Taya King, No. 29,823

IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
Opinion Number: __________
Filing Date: 	December 1, 2010
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
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(repealed 	and 	recompiled 	at 	NMSA 	1978, 	Sections 	40-11A-101 	to 	-903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.

2
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 had formed a parental relationship with the child.

3
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

4
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

5
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 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

6
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

7
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 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.

8
{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)

9
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 portions of Section 40-4-9.1 meaningless. See Int’l

10
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”).

11
{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

12
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 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

13
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

14
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).
{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

15
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

16
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

17
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 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

18
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

19
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 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

20
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

21
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 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

22
by proof of some other kind of parent and child relationship—in other words, nothing
in the statute indicates that the Legislature 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

23
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

24
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 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

25
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

26
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, ¶ 8.

27
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

28
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

29
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”).
{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

30
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

31
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 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

32
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

33
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
MICHAEL E. VIGIL, Judge (Dissenting)

34
VIGIL, Judge (dissenting).	1
{42} 	The majority holds that the UPA does not apply to this case, and I agree. The	2
majority also holds that Petitioner has standing to seek visitation with the child, and	3
I again agree. However, the majority holds that Petitioner has no standing to seek a	4
declaration of parenthood or legal custody of the child. 	I cannot agree with this	5
conclusion because this may result in the permanent severance of a parent-child bond.	6
Without standing, Petitioner has no right to prove the allegations of the petition that,	7
indeed, a parent-child bond has formed between her and the child she helped raise	8
from infancy for nine years.	9
{43} 	The child is helpless with the most to lose in this case: 	a loving, nurturing	10
parent. Petitioner asks for her day in court where she can seek to have her rights and	11
duties as a parent of the child confirmed. In concluding Petitioner has no standing to	12
be heard, the majority negates years of jurisprudence which recognizes the realities	13
of a parent-child relationship, and the child’s interest in her right to a parent.	14
STANDARD OF REVIEW	15
{44} 	I emphasize that the case is before us following a district court dismissal for	16
failure to state a claim upon which relief can be granted pursuant to Rule 1-012(B)(6).	17
“In reviewing the district court’s decision to dismiss for failure to state a claim, we	18

35
accept as true all well-pleaded factual allegations in the complaint and resolve all	1
doubts in favor of the complaint’s sufficiency. A Rule 12(B)(6) motion is only proper	2
when it appears that [the] plaintiff can neither recover nor obtain relief under any state	3
of facts provable under the claim.” N.M. Pub. Sch. Ins. Auth., 2008-NMSC-067, ¶ 11	4
(internal quotation marks and citation omitted).	5
FACTUAL ALLEGATIONS	6
{45} 	The allegations contained in the petition are under oath. Petitioner desires to	7
have the rights afforded to a parent, and she is willing to take the responsibility of	8
supporting the child. Petitioner states that the parties were in a committed domestic	9
relationship for fifteen years, from August 1993, until August 2008. 	During their	10
domestic relationship, Petitioner and Respondent both went to Russia to adopt the	11
child. However, Petitioner did not legally adopt the child because Respondent told	12
her “that there would be prejudice on the part of the Russian adoption agencies both	13
because of same sex parents and racial prejudice.” 	Thus, Respondent adopted the	14
child. The adoption took place in March 2000, when the child was thirteen months	15
old.	16
{46} 	Petitioner further alleges that “[s]ince the adoption of the child and until the	17
parties’ separation, both parties have raised the child and have fully participated in	18

36
parenting her. Both parties have held and continue to hold themselves out as parents	1
of the child.” Petitioner adds that she has provided for the physical, emotional, and	2
social needs of the child; that since the adoption of the child to the present, Petitioner	3
performed a substantial share of the care taking functions for the minor child and	4
assumed a parental role by tending to the child’s physical, emotional, and social needs	5
on a day-to-day basis; that as a result, a parent-child bond was formed between	6
Petitioner and the child; and that Petitioner and the child mutually acknowledge a	7
parent and child relationship.	8
{47} 	Petitioner adds that Petitioner’s relationship with the child began with the	9
consent of the Respondent; that Petitioner has shared physical custody of the child for	10
an extended period of nine years; that Respondent cooperated in the development of	11
the parent-child relationship between Petitioner and the child; that Respondent held	12
Petitioner out as the child’s parent, and consented to and accepted Petitioner holding	13
herself 	out 	as 	such; 	and 	that 	Respondent 	assured 	Petitioner, 	through 	direct	14
communications as well as through her conduct, that Petitioner would remain the	15
child’s parent.	16
{48} 	Petitioner contends Respondent is “estopped from denying Petitioner’s status	17
as the child’s parent,” and Petitioner “is the equitable parent of the minor child, and	18

37
as such is entitled to relief, including but not limited to the affirmation of Petitioner’s	1
parental rights by virtue of equitable estoppel.” Petitioner asserts, “[i]t is in the best	2
interests of the child that the Petitioner’s rights as a parent be affirmed under the	3
equitable parent or de facto parent theory, and that the established security and	4
stability of the parent-child relationship between the child and the Petitioner be	5
maintained.” 	Accordingly, Petitioner asks the district court to order that she “be	6
declared a legal parent of the minor child”; that “both parties be ordered to contribute	7
to the support of the minor child”; that “the court determine custody and timesharing”;	8
and that the court grant other additional relief, consistent with the foregoing.	9
{49} 	In my opinion, we must reverse the district court order of dismissal for three	10
reasons. First, Section 40-4-9.1(K) does not apply to the factual scenario presented	11
to us in this case. Secondly, even if Section 40-4-9.1(K) applies, the facts set forth in	12
the petition constitute “extraordinary circumstances” under existing case law to take	13
the case out of the purview of Section 40-4-9.1(K). Thirdly, accepting the allegations	14
of the petition as true, New Mexico common law grants Petitioner standing in this	15
case. I discuss each of these points below.	16
SECTION 40-4-9.1(K) DOES NOT APPLY	17

38
{50} 	The majority opinion relies almost exclusively on Section 40-4-9.1(K) to	1
conclude that Petitioner has no standing to bring her custody claim, even though	2
Petitioner places no reliance on this statute whatsoever in seeking to affirm the district	3
court. Waiver rules aside, because the district court relied on this statute in dismissing	4
the petition, and because the majority opinion relies so heavily on the statute, I also	5
address this statute.	6
{51} 	When the Legislature enacted this statute, it did not have the factual scenario	7
before us in mind. Instead, the Legislature clearly and unambiguously expressed its	8
intent that the statute only applies within the context of a dissolution of marriage	9
between a husband and wife or a proceeding for the disposition of children between	10
a husband and wife without a dissolution of marriage. 	I therefore conclude that	11
Section 40-4-9.1(K) does not apply to the facts before us in this case.	12
{52} 	Sections 40-4-1 to -20 are codified by the Compilation Commission in Chapter	13
40, Article 4. Article 4 is entitled “Dissolution of Marriage.” The original statutes	14
were codified in Chapter 22, Article 7 of the 1953 Compilation, and Article 7 was	15
entitled “Divorce and Separation.” Chapter 319, Sections 1-14 of New Mexico Laws	16
of 1973, repealing and amending Sections 22-7-1 to -22 of the 1953 Compilation.	17
When the 1978 Compilation came into effect, these statutes were placed under	18

39
Chapter 40, Article 4, which is entitled “Dissolution of Marriage.” Thus, since 1973,	1
with the passage of Chapter 319, Sections 1-14 of New Mexico Laws of 1973, and	2
subsequent amendments, all of the statutes in Chapter 40, Article 4 fall under	3
“Dissolution of Marriage.” Section 1 (Section 40-4-1) states the grounds upon which	4
a dissolution of marriage may be decreed; Section 2 (Section 40-4-2) defines	5
incompatibility as a basis for granting a dissolution of marriage; and Section 3	6
(Section 40-4-3) provides that when the “husband and wife” have permanently	7
separated and no longer live together as “husband and wife,” then “either may institute	8
proceedings in the district court for a division of property, disposition of children or	9
alimony, without asking for or obtaining in the proceedings, a dissolution of	10
marriage.” (Emphasis added.) Section 4 (40-4-4) then provides for venue in “[a]ny	11
proceeding for the dissolution of marriage, division of property, disposition of	12
children or alimony, as provided for in this chapter[.]” 	(Emphasis added.) 	The	13
remaining provisions in Article 4, “Dissolution of Marriage” all expressly relate to	14
proceedings between a husband and wife, their children, and their property. 	See	15
Sections 40-4-5 to -9; 40-4-10 to -20.	16
{53} 	In 1981, within the foregoing context, the Legislature enacted “A new Section	17
40-4-9.1 NMSA 1978[.]” Chapter 12, Section 1, New Mexico Laws of 1981. With	18

40
this statute, the Legislature for the first time expressed its preference that in a	1
dissolution of marriage case or a proceeding between a husband and wife for a	2
“disposition of children” without a dissolution of marriage as provided in Section 40-	3
4-3, joint custody is preferred. Importantly, the Legislature specifically directed that	4
this new statute be placed with the statutes dealing with “Dissolution of Marriage”	5
under Chapter 40, Article 4.	6
{54} 	The present version of Section 40-4-9.1 was originally enacted by Chapter 41,	7
Section 1 of New Mexico Laws of 1986. 	Section 1 of the Session Laws directs,	8
“Section 40-4-9.1 NMSA 1978 (being Laws 1981, Chapter 112, Section 1) is repealed	9
and a new Section 40-4-9.1 NMSA 1978 is enacted to read[.] ” (Emphasis added.)	10
Thus, in 1986, the Legislature reiterated the direction it gave in 1981 that this joint	11
custody statute be placed with the statutes dealing with “Dissolution of Marriage”	12
under Chapter 40, Article 4.	13
{55} 	The overall structure of Section 40-4-9.1 also demonstrates that it relates to	14
children of a husband and wife in the context of a dissolution of marriage case or a	15
proceeding between a husband and wife for the disposition of children without a	16
dissolution of marriage. I now refer to the specific subsections of Section 40-4-9.1.	17
Subsection B addresses factors which are to be considered in determining whether to	18

41
award a joint custody and it specifically refers to the parents of the children. It does	1
so by reference to “each parent” and “both parents.” The remaining Subsections (C)	2
through (J) follow the same pattern in referring to parents and their children and how	3
to make a determination of joint custody. Within this context, Subsection (K) refers	4
to “any person other than a natural or adoptive parent” who seeks custody. 	This	5
subsection harmonizes with the remaining subsections and statutes in that it addresses	6
when a person other than a parent of the children seeks custody of a child within the	7
context of a dissolution of marriage case or a proceeding for “disposition of children”	8
without a dissolution of marriage. To read Subsection (K) as proposed in the majority	9
opinion makes Subsection (K) apply to a circumstance which the Legislature did not	10
envision, did not address, and did not provide for. The 1999 amendment to Section	11
40-4-9.1 does not alter this conclusion.	12
{56} 	Again, the Legislature specifically directed that its preference for joint custody	13
as set forth in Section 40-4-9.1 applies to the disposition of children in a dissolution	14
of marriage action between a husband and wife or a proceeding between a husband	15
and wife for the disposition of their children without a dissolution of marriage. The	16
Legislature specifically directed that this statute be placed in Article 4 which	17
addresses “Dissolution of Marriage.” The case before us is clearly not a dissolution	18

42
of marriage case or a case between a husband and wife for disposition of children	1
without a dissolution of marriage.	2
{57} 	Cases from other states indicate that when legislatures have considered	3
circumstances such as those before us in this case, they have responded. 	See In re	4
E.L.M.C., 100 P.3d 546, 555-56 (Colo. App. 2004) (applying a statute granting	5
standing to seek parental decision-making responsibilities to a person other than a	6
parent who had been in physical care of the child for six months or more to a same sex	7
partner where the other partner adopted a six-month-old child under China law, and	8
both partners parented the child during their seven-year relationship); SooHoo v.	9
Johnson, 731 N.W.2d 815, 818, 824 (Minn. 2007) (applying a statute granting	10
standing to seek visitation to a person with whom a child has resided for at least two	11
years to the same sex partner of an adoptive mother who adopted children from China	12
who had co-parented the children with the same sex partner); Kulstad v. Maniaci,	13
2009 MT 326, ¶ 28, 220 P.3d 595 (applying a statute granting standing to seek a	14
parenting interest where a person has established a parent-child relationship with a	15
child to the same sex partner of an adoptive mother); Mason v. Dwinnell, 660 S.E.2d	16
58, 65 (N.C. Ct. App. 2008) (applying a statute granting standing to a non-parent to	17
seek custody of a child where a parent-child relationship has developed to a same sex	18

43
couple). Our own Legislature has not yet addressed the factual scenario of this case.	1
EXTRAORDINARY CIRCUMSTANCES	2
{58} 	Even if Section 40-4-9.1(K) somehow applies, the petition sets forth sufficient	3
“extraordinary circumstances” to qualify as an exception to 40-4-9.1(K). 	See In re	4
Adoption of J.J.B., 119 N.M. at 652, 894 P.2d at 1008 (stating that notwithstanding	5
Section 40-4-9.1(K), under extraordinary circumstances, custody may be awarded to	6
a non-parent over the objections of a parent).	7
{59} 	In J.J.B., the child was placed in the custody of prospective adoptive parents on	8
January 4, 1991. 	Id. at 641, 894 P.2d at 997. When the adoption was finalized in	9
August 1992, the child had been with the prospective adoptive parents for eighteen	10
months. Id. at 643, 894 P.2d at 999. During this time, the child’s natural father and	11
the adoptive parents were engaged in a custody dispute. 	Id. 	Our Supreme Court	12
concluded that the district court erred in terminating the natural father’s parental	13
rights, and the adoption was therefore void. 	Id. at 650-51, 894 P.2d at 1006-07.	14
However, this did not mean that the father automatically regained custody of the child.	15
“Custody based upon the biological parent-child relationship may be at odds with the	16
best interests of the child. 	When that happens, the best interests of the child must	17
prevail.” 	Id. at 652, 894 P.2d at 1008. 	Our Supreme Court concluded that	18

44
extraordinary circumstances were present to allow an award of custody of the child	1
to the adoptive parents. Id. at 652-54, 894 P.2d at 1008-10. Petitioner’s status in this	2
case, who alleges she formed a parent-child bond with the child over a period of nine	3
years is at least as strong as the adoptive parents in J.J.B. Since the adoptive parents	4
in J.J.B. had standing to seek custody, Petitioner in this case likewise has standing.	5
{60} 	In In re Guardianship of Ashleigh R., 2002-NMCA-103, ¶ 15, we expressly	6
cited to J.J.B. as recognizing the presence of psychological parents as an extraordinary	7
circumstance. For the reasons stated in the next section of this dissent, the petition	8
alleges that the elements of a psychological parent exist. Other courts agree that the	9
existence 	of 	a 	psychological 	parent-child 	relationship 	constitutes 	exceptional	10
circumstances. See V.C. v. M.J.B., 748 A.2d 539, 549-50 (N.J. 2000) (concluding that	11
former same sex partner who is a psychological parent of a child has standing to seek	12
custody based on “exceptional circumstances”); Clifford K. v. Paul S., 619 S.E.2d 138,	13
157 (W. Va. 2005) (concluding former same sex partner who was psychological	14
parent had standing to intervene in custody proceeding under “exceptional cases”	15
provision of statute).	16
{61} 	I do not agree that Section 40-4-9.1(K) applies to the facts before us in this	17
case. However, even if it could somehow be construed as applying, I would conclude	18

45
that “extraordinary circumstances” are present in this case. 	Since the majority	1
disagrees, I dissent.	2
NEW MEXICO COMMON LAW	3
{62} 	There being no statute which addresses standing in this case, I now look to the	4
common law to determine whether Petitioner has standing in this case.	5
{63} 	I begin with Judge A. Joseph Alarid’s analysis in In re Guardianship of	6
Victoria R., 2009-NMCA-007, ¶¶ 14-15, 145 N.M. 500, 201 P.3d 169, wherein he	7
discusses 	substantial 	and 	persuasive 	authority 	supporting 	the 	concept 	of 	a	8
psychological parent. 	After the analysis, Judge Alarid notes, “older New Mexico	9
cases also support recognition of psychological parentage.” 	Id. ¶ 15. 	The cases	10
referred to are Cook v. Brownlee, 54 N.M. 227, 230, 220 P.2d 378, 379 (1950)	11
(upholding decision of the trial court finding that the best interests of the child would	12
be served by allowing the teenaged child to remain in the custody of the maternal	13
grandfather following the death of mother rather than returning the child to the father	14
with whom the child was barely acquainted); and Ex parte Pra, 34 N.M. 587, 588, 286	15
P. 828, 829 (1930) (upholding dismissal of the biological mother’s habeas petition	16
seeking custody of her nine-year-old son following the death of the child’s maternal	17
aunt; noting the evidence that mother had voluntarily delivered the child as an infant	18

46
to the aunt and uncle, that the aunt and uncle had cared for the child “as if he were	1
their own son,” and that the uncle and the child “have become greatly attached to and	2
love each other as father and child”).	3
{64} 	Moreover, more recent New Mexico cases support Petitioner’s position. 	I	4
conclude that A.C. is sufficiently on point. 	This case also involved a committed	5
domestic relationship between two women, one of whom was the biological mother	6
of the child. The two women lived together for approximately fourteen years before	7
separating. 113 N.M. at 582, 829 P.2d at 661. Seven years prior to the separation, the	8
parties entered into an oral agreement to raise a child as co-parents and the biological	9
mother gave birth to the child who was conceived through artificial insemination. Id.	10
The partner (who was not the biological mother) alleged that after the birth she shared	11
the responsibility of caring for the child; participated in setting up a trust fund for the	12
child’s education, as well as a savings account and life insurance policy for the child’s	13
benefit; and that she shared the financial responsibility for raising the child. Id. The	14
partner filed an action seeking joint legal custody and time sharing. Id.	15
{65} 	The district court entered an order dismissing the partner’s petition with	16
prejudice after the parties entered into a settlement agreement which provided for	17
dismissal of the action with prejudice. Id. Five months after the dismissal, the partner	18

47
filed a verified petition to set aside or reopen the case under Rule 1-060(B)(3) NMRA.	1
A.C., 113 N.M. at 582, 829 P.2d at 661. The basis alleged for reopening the case was	2
that the biological mother refused to reduce the agreement to writing. Id. at 583, 829	3
P.2d at 662. The biological mother responded to the motion to reopen the judgment	4
by moving for summary judgment on grounds that she was fit as a parent and that no	5
legal relationship existed between the child and the partner that would confer upon the	6
partner any rights, privileges, duties, or obligation. Id. The partner responded to the	7
motion for summary judgment asserting that material issues of fact existed about	8
whether the agreements between the parties had been made and whether she was a de	9
facto parent. 	Id. 	The district court granted the biological mother’s motion for	10
summary judgment. 	Id. 	The district court found there was no valid legal marriage	11
between the parties and that because the partner had not adopted the child, she had no	12
standing or enforceable rights. Id.	13
{66} 	On appeal, we stated, “[a] determination of [the partner’s] rights depends on her	14
first, establishing a basis for setting aside the order of dismissal and, assuming she is	15
successful in doing so, second, establishing a basis for either shared custody or	16
visitation.” 	Id. 	We held that the partner “made a prima facie showing which, if	17
proved, would justify setting aside the dismissal and authorize consideration of her	18

48
right to continue her relationship with the child.” Id. We first held that if the district	1
court found that an agreement was made and found fraud, misrepresentation, or other	2
conduct on the part of the biological mother, which induced the partner to agree to the	3
dismissal, the district court should then proceed to consider what rights, if any, would	4
be conferred on the partner by reason of any agreements made or actions taken. Id.	5
at 584, 829 P.2d at 663. 	We discussed authorities addressing the rights of non-	6
traditional parents and related significant issues. After considering those authorities,	7
we concluded, “One in [the partner’s] shoes may be able to establish deprivation of	8
a legally recognized right to maintain some type of continuing relationship with the	9
child.” Id. at 586, 829 P.2d at 665. Accordingly, we specifically held, “[t]he [partner]	10
has made a colorable claim of standing to seek enforcement of such claimed rights.”	11
Id.	12
{67} 	In Barnae, two women lived in California for ten years in a committed	13
relationship during which they both contributed to the upbringing of two children.	14
1997-NMCA-077, ¶ 1. 	The partner never legally adopted, or sought to adopt, the	15
children. 	Nevertheless all four lived together in the same house, excluding brief	16
separations until the partner permanently left the biological mother’s household. Id.	17
¶ 2. After concluding the action could properly be maintained in New Mexico, id. ¶	18

49
8, we noted A.C. and said, “New Mexico . . . has held that a person in a situation	1
similar to [the partner] made a colorable claim of standing to assert a legal right to	2
some type of continuing relationship with a child.” Barnae, 1997-NMCA-077, ¶ 10.	3
{68} 	Thus, in my opinion, A.C. and Barnae grant Petitioner standing in this case. I	4
therefore also disagree with analysis of these cases by the majority. Majority Opinion	5
¶¶ 30-32. The issue before us is not whether Petitioner will prevail on the merits, but	6
whether the assertions she makes in the petition are sufficient to confer standing. I	7
believe they are.	8
{69} 	The majority does not address what Petitioner must prove to be entitled to	9
relief. In discussing a psychological parenthood relationship, Judge Alarid in In re	10
Guardianship of Victoria R., 2009-NMCA-007, ¶ 14 n.6, refers to the four-part test	11
enunciated in In re E.L.M.C., 100 P.3d at 560:	12
(1) the legal parent consented to and fostered the nonparent’s formation	13
and establishment of a parent-like relationship between the nonparent	14
and the child; (2) the nonparent and the child lived together in the same	15
household; (3) the nonparent assumed obligations of parenthood by	16
taking significant responsibility for the child’s care, education and	17
development, including contributing towards the child’s support, without	18
expectation of financial compensation, and (4) the nonparent has	19
established a parental role sufficient to create with the child a bonded,	20
dependent relationship parental in nature.	21

50
Other courts have adopted this test. See V.C., 748 A.2d at 554 (concluding that once	1
a third party has been determined to be a psychological parent to a child, she stands	2
in legal parity with the legal parent for custody and visitation issues); Rubano v.	3
DiCenzo, 759 A.2d 959, 974 (R.I. 2000) (concluding same sex partner of biological	4
mother had standing to establish a psychological parenthood relationship with the	5
child and thereby enforce the parties’ visitation agreement); In re Custody of H.S.H.-	6
K, 533 N.W.2d 419, 420, 435-36 (Wis. 1995) (remanding to the trial court for a	7
determination of whether same sex partner of biological mother could prove elements	8
of a psychological parent, and thus obtain visitation); see also The American Law	9
Institute, Principles of the Law of Family Dissolution, § 2.03 (2000) (recognizing and	10
adopting standards for proving a “parent by estoppel” and a “de facto parent”).	11
{70} 	I would adopt the In re E.L.M.C. test as set forth above. This test preserves the	12
child’s relationship with an adult who has functioned as a parent, thereby serving the	13
child’s best interests; it protects the constitutional rights of legal parents because a	14
psychological relationship can only be fostered with their consent and assistance; and	15
it strictly limits who can qualify as a psychological parent.	16
{71} 	The majority opinion recognizes that the district court exercises comprehensive	17
equitable powers when dealing with cases involving children. Majority Opinion ¶ 33.	18

51
Sanders v. Rosenberg, 1997-NMSC-002, ¶ 10, 122 N.M. 692, 930 P.2d 1144. This	1
exercise of comprehensive, plenary equitable power, under the foregoing authorities,	2
grants Petitioner standing to seek to the relief she seeks in her verified petition. Other	3
courts have come to this conclusion under circumstances similar to those in this case.	4
See C.E.W. v. D.E.W., 2004 ME 43, ¶¶ 2, 10, 845 A.2d 1146 (concluding that as a	5
corollary of a court’s equitable jurisdiction to determine a child’s best interests, same	6
sex partner of biological mother had standing to be considered for an award of	7
parental rights and responsibilities as a de facto parent); T.B. v. L.R.M., 786 A.2d 913,	8
917 (Pa. 2001) (concluding that where a same sex partner assumed a parental status	9
and assumed parental duties with the biological mother’s consent, the child’s best	10
interests require that the third party be granted standing to litigate whether that	11
relationship should be maintained); In re Parentage of L.B., 122 P.3d 161, 163 (Wash.	12
2005) (en banc) (concluding that same sex partner of biological mother who alleged	13
she was a de facto parent had standing to petition for rights and responsibilities of	14
shared parentage under equitable power of the court). Since the majority disagrees, I	15
dissent.	16
CONCLUSION	17

52
{72} 	I conclude that Petitioner should be granted her day in court to prove whether	1
she and the child have bonded as parent and child, and whether it is in the best	2
interests of the child for Petitioner to be granted custody. 	Since the majority	3
disagrees, I dissent.	4
__________________________________	5
MICHAEL E. VIGIL, Judge	6