2019 New Mexico Statutes
Chapter 40 - Domestic Affairs
Article 11A - New Mexico Uniform Parentage Act
Article 2 - PARENT-CHILD RELATIONSHIP
Section 40-11A-204 - Presumption of paternity.
A. A man is presumed to be the father of a child if:
(1) he and the mother of the child are married to each other and the child is born during the marriage;
(2) he and the mother of the child were married to each other and the child is born within three hundred days after the marriage is terminated by death, annulment, declaration of invalidity or divorce or after a decree of separation;
(3) before the birth of the child, he and the mother of the child married each other in apparent compliance with law, even if the attempted marriage is or could be declared invalid, and the child is born during the invalid marriage or within three hundred days after its termination by death, annulment, declaration of invalidity or divorce or after a decree of separation;
(4) after the birth of the child, he and the mother of the child married each other in apparent compliance with law, whether or not the marriage is or could be declared invalid, and he voluntarily asserted his paternity of the child, and:
(a) the assertion is in an acknowledgement of paternity on a form provided by the bureau that is filed with the bureau;
(b) he agreed to be and is named as the child's father on the child's birth certificate; or
(c) he promised in a record to support the child as his own; or
(5) for the first two years of the child's life, he resided in the same household with the child and openly held out the child as his own.
B. A presumption of paternity established pursuant to this section may be rebutted only by an adjudication pursuant to Article 6 of the New Mexico Uniform Parentage Act. Rebuttal of a presumption of paternity pursuant to the New Mexico Uniform Parentage Act does not apply to a presumption of paternity established pursuant to the Adoption Act [Chapter 32A, Article 5 NMSA 1978].
History: Laws 2009, ch. 215, § 2-204.
ANNOTATIONSEffective dates. — Laws 2009, ch. 215, § 20 made the New Mexico Uniform Parentage Act effective January 1, 2010.
The "holding out" provision applies to women. — The statutory presumption that a man is presumed to be the natural father of a child if the man openly holds out the child as the man's natural child and has established a personal, financial or custodial relationship with the child applies to women. Chatterjee v. King, 2012-NMSC-019, 280 P.3d 283, rev'g 2011-NMCA-012,149 N.M. 625, 253 P.3d 915. (decided under Section 40-11-5 NMSA 1978, now repealed).
The "holding out" provision with regard to paternity applies to women. — Where petitioner and respondent, who both were women and who had a committed, long-term domestic relationship, agreed to bring a child into their relationship; respondent adopted a child; petitioner never adopted the child; petitioner supported respondent and the child financially, lived in the family home, held the child out as petitioner's natural child, and co-parented the child for a number of years before they dissolved their relationship; respondent sought to prevent petitioner from having any relationship with the child; and petitioner filed a petition to establish parentage and determine custody and timesharing of the child, petitioner was an interested party and had standing to file an action under 40-11-12 NMSA 1978 (repealed, see 40-11A-601 and 40-11A-602 NMSA 1978) to declare the existence of a mother and child relationship with respect to the child because petitioner, by holding the child out as petitioner's natural child and providing financial and emotional support to the child, was presumed to be a natural parent of the child under Subsection A(4) of 40-11-5 NMSA 1978 (repealed, see 40-11A-204 NMSA 1978). Chatterjee v. King, 2012-NMSC-019, 280 P.3d 283, rev'g 2011-NMCA-012,149 N.M. 625, 253 P.3d 915.
The "holding out" provision with regard to paternity does not apply to women. Chatterjee v. King, 2011-NMCA-012, 149 N.M. 625, 253 P.3d 915, cert. granted, 2011-NMCERT-001, 150 N.M. 558, 263 P.3d 900.
Where petitioner and respondent were in a committed relationship for several years, respondent adopted a child, petitioner did not adopt the child and petitioner held herself out as a parent of the child, the "holding out" provision with regard to paternity did not apply to petitioner, who was a woman, to establish parenthood in petitioner sufficient to grant her standing to bring a claim for custody of the child. Chatterjee v. King, 2011-NMCA-012, 149 N.M. 625, 253 P.3d 915, cert. granted, 2011-NMCERT-001, 150 N.M. 558, 263 P.3d 900.
Sperm donor agreement. — Where the biological father and the mother of the child entered into an agreement, prior to conception of the child, that the father would donate sperm, act as a male role model for the child, and have no financial obligation for child support; the mother self-inseminated herself; and after the child was born, the father held himself out as the father of the child, had significant contacts with the child, and was registered as the child's father with the vital statistics bureau, the agreement was unenforceable and the father was liable for child support. Mintz v. Zoernig, 2008-NMCA-162, 145 N.M. 362, 198 P.3d 861, cert. denied, 2008-NMCERT-011, 145 N.M. 531, 202 P.3d 124.
Collateral estoppel in contesting paternity. — Where paternity has been established in a divorce proceeding, an alleged father is barred under the doctrine of collateral estoppel from later questioning paternity in a proceeding under the Uniform Parentage Act. Callison v. Naylor, 1989-NMCA-055, 108 N.M. 674, 777 P.2d 913.
Parental preference doctrine. — The parental preference doctrine limits the district court's discretion to award custody to a non-parent and requires the court to award custody to the parent unless the parent is unfit or extraordinary circumstances are present.
Tran v. Bennett, 2018-NMSC-009, rev'g No. 32,677, mem. op. (N.M. Ct. App. May 28, 2014)(non-precedential).
Where the mother and biological father of a child appealed a district court order awarding joint legal custody to the mother, the biological father and the man that was married to the mother at the time the child was born ("co-parent"), and where the "co-parent" claimed that there was no court order determining paternity, the New Mexico Supreme Court held, under the former Uniform Parentage Act, §§ 40-11-1 to -23 NMSA 1978 (repealed), that there was no need to litigate the paternity issue where the district court order adopted a memorandum of agreement entered into by the parties which recognized the biological father as the child's legal father and which did not confer parental rights on the "co-parent", but only provided him third-party visitation rights. Tran v. Bennett, 2018-NMSC-009, rev'g No. 32,677, mem. op. (N.M. Ct. App. May 28, 2014) (non-precedential).
Law reviews. — For annual Survey of New Mexico Family Law, see 17 N.M.L. Rev. 291 (1987).
Am. Jur. 2d, A.L.R. and C.J.S. references. — Parental rights of man who is not biological or adoptive father of child but was husband or cohabitant of mother when child was conceived or born, 84 A.L.R.4th 655.
