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Monday, October 18, 2010
Ex-Partners Battle Over A Little Girl
By Joline Gutierrez Krueger
Journal Staff Writer
There were never supposed to be two mommies.
Rachel Davis imagined a perfect little girl born of her womb and the contribution of a nameless, faceless donor so that no one else could one day lay claim to her life's miracle.
So concerned was Davis about the potential of a legal entanglement over her only child that she rejected an initial thought to have a male friend impregnate her.
"I wanted to be my daughter's only biological and legal mother," Davis, 38, says. "I and I alone planned for her and longed for her before she ever was born and felt her grow inside me."
But that's not how Lisa Lukach, Davis' former partner, says the baby girl — their baby girl — came to be.
Lukach, 40, says she and Davis, once romantically involved, both planned the baby's birth by artificial insemination from the selection of the sperm donor to the sending out of the birth announcements. And though there had never been any formal legally binding contract between them — no adoption, no marriage, no guardianship, no power of attorney — Lukach says that for the first 2 1/2 years of the baby's life she parented the child and was just as much a mother as any other.
"This little girl doesn't know who contributed a sperm or an egg," Lukach's attorney, Deborah Raines, declared last winter in the opening salvos of a bitter and groundbreaking custody battle in Albuquerque. "This little girl knows she's got a Mommy Lisa and a Mommy Rachel."
How or if a Family Court judge decides to figuratively split the baby could influence the way a parent is defined in the eyes of the law, not just as it pertains to same-sex couples but to anybody in the general proximity of a child.
"It cuts across all of that — stepparents, divorced parents, live-in relations, baby sitters, nannies," says Rep. Al Park, an Albuquerque Democrat, who along with Sen. Mark Boitano, an Albuquerque Republican, plans to introduce a bill next legislative session to more clearly define what legally constitutes a parent. "It is a basic rule of law that the natural parents and the legal guardians have a paramount right to raise their children almost without interference. You don't get a special right merely by being a roommate or a caregiver."
That, Davis says, is closer to what Lukach was to the child, now 4 and blissfully unaware of the legal storm thundering around her.
Davis, an Albuquerque cardiovascular specialist and poet, says she began thinking of having a child after the passing of her grandfather and the passage of time, her biological clock ticking louder and louder when she turned 30 — three years before she met Lukach.
She says she began researching artificial insemination clinics and looking for work in states with generous fertility insurance benefits, settling on Chicago in 2004.
There she met Lukach, a self-described burned-out social worker toiling in a bar and restaurant, that summer.
From there, the women's stories diverge: Davis says the two became intimate that October and moved in together in February 2005; Lukach says romance blossomed quickly after they met and the two began living together in December 2004.
The distinction is important because it was in December 2004 that Davis says she underwent the first of six inseminations. Lukach, according to her testimony, said she helped pay for fertility treatments with the tips she earned. They built a fertility altar, using photos of each other as babies, hoping to persuade the universe to grant them a child.
When Davis became pregnant, Lukach says, they compiled an album filled with photos of them fawning over Davis' pregnant belly.
Lukach was in the surgical room March 18, 2006, when the delivery turned precarious and Davis was forced to undergo an emergency Caesarean section.
When Davis moved back to Albuquerque several months later, Lukach moved, too.
During 1 1/2 days of testimony before Family Court Judge Gerald Lavelle that began last February and resumed in September, Lukach described how she was just as much a mother to the child as Davis was — there to feed, bathe and care for her, take her to day care and pay for it, list her on her insurance benefits from her job with the state Children, Youth and Families Department, even after the relationship had soured and Lukach had moved out and into another relationship.
"As far as I was concerned, this was a committed relationship," Lukach testified, her voice occasionally breaking. "And I really didn't think there was, this would happen or there would be a need for that."
But Lukach admitted she had never signed any legal documents or applied to adopt the girl. Her name was not on the birth certificate. She had no receipts to prove she had helped to pay for the insemination, no photo album, only dozens of e-mails and text messages between her and Davis that appeared to indicate a deeper bond.
Lukach's attorney argued that her client deserved standing as a parent because of the "extraordinary circumstances" between her client and the child and the agreements made between the women.
"She's been a parent every step of the way," Raines said.
But Davis' attorney, Patrick McDaniel, countered that New Mexico family law does not recognize a person acting as a parent as a party in custody disputes. Only in cases where it can be shown that the natural or adopted parent is unfit is there any wiggle room.
"Bonds of affection are not enough," McDaniel said.
In a decision rendered Sept. 7, Lavelle chose not so much to split the baby but to let it twist a while longer, ruling that Lukach had standing as a "person acting as a parent" because her relationship with the child was qualitatively different from the child's relationship with any other person.
Lavelle ordered a reintegration specialist to facilitate visits, once they are deemed appropriate, between Lukach and the child since the two have not seen each other for more than a year.
So far, no visits have taken place. If Davis can help it, they never will.
"It's awful to feel I have no voice, no power to protect my own child," she says. "I didn't marry this woman. She didn't adopt my child. I am the mother."
It's up to the courts to determine whether she is the only one.
UpFront is a daily front-page news and opinion column. You can reach Joline at 823-3603, jkrueger@abqjournal.com or follow her on Twitter @jolinegkg.
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