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.
United Services contends that nothing in N.M.S.A.1978, § 39–1–1, affects the deadlines in N.M.R.A. 1–060(B), which also permits post-judgment relief. See United Services' Sawyer Response at 2–3 (citing N.M.S.A.1978, § 39–1–1; A.C. v. C.B., 113 N.M. 581, 584, 829 P.2d 660, 663 (Ct.App.1992)). United Services argues that Sawyer misunderstands the Rooker–Feldman doctrine, which is confined to “cases brought by state-court losers complaining of injuries cause by state-court judgments rendered before the district court proceedings commenced and inviting district court review and rejection of those judgments.”
In New Mexico, the court of appeals held a contractual agreement giving an unrelated person a right to custody and visitation of a child is not per se unenforceable. ( A.C. v. C.B. (1992) 113 N.M. 581 [ 829 P.2d 660].) An unrelated woman, with whom the biological mother had lived, brought an action against the mother seeking joint custody and visitation.
We have been no less cognizant of the overriding nature of children's best interests when visitation in the context of lifestyles that do not meet with mainstream approval was the issue. See A.C. v. C.B., 113 N.M. 581, 829 P.2d 660 (Ct.App.) (agreement that psychological parent has a right to visit with child of biological parent not repugnant to public policy even though parents were formerly in a sexually nontraditional relationship), cert. denied, 113 N.M. 449, 827 P.2d 837 (1992). Additionally, in Christian Placement Service, New Mexico Christian Children's Home v. Gordon, 102 N.M. 465, 697 P.2d 148 (Ct.App. 1985), a case with circumstances analogous to this one, we held that the lower court properly denied a grandparent intervention as of right and permissive intervention in an adoption proceeding.
{36} Additionally, the New Mexico Court of Appeals has already embraced the idea of a child having two mothers in appropriate situations. In A.C. v. C.B., 113 N.M. 581, 585, 829 P.2d 660, 664 (Ct.App.1992), the Court of Appeals held that a “[p]etitioner's sexual orientation, standing alone, is not a permissible basis for the denial of shared custody or visitation.” In Barnae v. Barnae, 1997–NMCA–077, ¶ 10, 123 N.M. 583, 943 P.2d 1036, the Court of Appeals again recognized a lesbian partner's standing to assert a legal right to a continuing relationship with a child.
Id. at 891 (citations and footnotes omitted). See also V.C. v. M.J.B., 163 N.J. 200, 748 A.2d 539 (2000) (recognizing special status for psychological parents); Rubano v. DiCenzo, 759 A.2d 959, 976 (R.I. 2000) (finding no "infer[ence] [of] legislative intent to preclude standing to a de facto parent" and concluding that "a person who has no biological connection to a child but who has served as a psychological or de facto parent to that child may . . . establish his or her entitlement to parental rights vis-a-vis the child"); AC. v. C.B., 113 N.M. 581, 829 P.2d 660 (Ct.App. 2002) (recognizing same-sex dual parent relationship and reversing trial court's ruling that a coparenting agreement was per se unenforceable), cert. denied, C.B. v. AC, 113 N.M. 449, 827 P.2d 837 (1992). Courts have continued to recognize the de facto parenthood concept post- Troxel.
The New Mexico Court of Appeals has held that “a person's sexual orientation does not automatically render the person unfit to have custody of children.” A.C. v. C.B., 1992–NMCA–012, ¶ 19, 113 N.M. 581, 829 P.2d 660. This Court has held that same-gender couples have custody rights to children under the New Mexico Uniform Parentage Act, NMSA 1978, §§ 40–11A–101 to –903 (2009), because, among other reasons, “it is against public policy to deny parental rights and responsibilities based solely on the sex of either or both of the parents.” Chatterjee, 2012–NMSC–019, ¶¶ 5, 37, 280 P.3d 283.
When a child has the opportunity to be supported by two loving and fit parents pursuant to a co-parenting agreement, this opportunity is to be given due consideration and must not be foreclosed on account of the parents being of the same sex. See Kristine H. v. Lisa R., 37 Cal.4th 156, 33 Cal.Rptr.3d 81, 117 P.3d 690, 696 (2005) (stating that, in the context of a child being parented by two women, “public policy favor[s] that a child has two parents rather than one”); E.N.O. v. L.M.M., 429 Mass. 824, 711 N.E.2d 886, 892–93 (1999) (engaging in an analysis that indicated that a same-sex couple's co-parenting agreement could be enforceable insofar as it was in the child's best interest); A.C. v. C.B., 113 N.M. 581, 829 P.2d 660, 663–64 (App.1992) (finding that child visitation provisions of a co-parenting agreement between two women are enforceable if they are in the child's best interest). To bar the enforceability of a co-parenting agreement on the basis of the parents' genders conflicts with the Nevada Parentage Act's policies of promoting the child's best interest with the support of two parents.
As other courts have done, we have also considered scholarly articles in this area. See A.C. v. C.B., 113 N.M. 581, 829 P.2d 660 (N.M.App.1992) (articles collected). The courts that have applied the doctrine of in loco parentis in cases such as ours have looked to the purpose of the doctrine and noted that the focus of an in loco parentis analysis must be on the relationship between the child and the party seeking in loco parentis status.
See, e.g., In re Parentage of L.B., 155 Wash.2d 679, 122 P.3d 161 (2005) (partner had standing as a common law de facto parent which was limited to nonparents who have fully and completely undertaken a permanent, unequivocal, committed, and responsible parental role in the child's life); J.A.L. v. E.P.H., 453 Pa.Super. 78, 682 A.2d 1314 (1996) (mother's former domestic partner stood in loco parentis with child and, therefore, had standing to seek partial custody of child born during their relationship); In re Custody of H.S.H.-K., 193 Wis.2d 649, 533 N.W.2d 419 (1995) (nonparent has standing to seek visitation of child if a parent-like relationship with the child is shown); A.C. v. C.B., 113 N.M. 581, 829 P.2d 660 (N.M.Ct.App. 1992) (former partner who had entered into oral co-parenting agreement had standing to seek joint legal custody and time-sharing of partner's biological child). The facts in J.A.L. v. E.P.H., are nearly identical to those in the case at hand.