Taking Your Child Out Of State in a New Mexico Child Custody Case

Many divorced parents have questions about traveling out of the state with their children either on a short trip or a permanent relocation. Depending on the child custody arrangement, parenting plan in place, and length/ nature of the trip, the parent may need to get permission either from the other parent or the court before taking a child out of New Mexico.

There are many reasons for taking a child out of state including vacations, holidays, and visits to extended family. Other reasons may be different in nature, like a permanent move resulting from a job offer or wanting to be closer to family in another state. In other situations, parents take their children out of state to deprive the other parent of contact with a child.

In New Mexico, parenting plans will usually discuss a vacation and holiday schedule that specifies which parent the children will be with during these times. If the parenting plan specifies that the children will travel out of state for vacation or holiday, then the parent does not need further permission unless the trip will be longer that specified in the parenting plan. Although most plans will require the travelling parent to provide an itinerary of travel dates, times and locations to the other parent and provide a way for the other parent to contact the children while they are travelling.

If a parent wants to take a child out of state because of a change in residence, the parent cannot make this decision unilaterally unless he or she has sole legal custody. Even then, the parent who wishes to relocate may need the court‘s permission if the proposes relocation will interfere with, or eliminate, the other parent‘s visitation with the child. Given New Mexico‘s preference for joint legal custody, most New Mexico parenting plans clearly state that the children will reside in New Mexico and cannot be moved out of state without approval from the other parent or a court order.

A parenting plan should include provisions to be followed when one parent wants to relocate. A typical example of such a provision is when parents live less than 60 miles apart, notice of any planned relocation out of state or more than 100 miles from the other parent must be sent to the other parent at least 60 days in advance of moving. If parents cannot agree on the move, they must submit to mediation and draft a new parenting plan that must be approved by the court. If the parents cannot agree in mediation, then the parent wishing to relocate will need to file a motion with the court asking for permission to move out-of-state with the child.

Taking a child out of state without informing the other parent or in violation of a court order or temporary domestic order is considered custodial interference and is considered a serious offense in New Mexico. Parents that are found guilty of custodial interference face possible findings of contempt, fines, jail time, and awards of attorney fees and costs. Beyond family court sanctions, custodial interference is a felony that falls under New Mexico criminal kidnapping statutes. Parents found guilty of custodial interference face serious criminal penalties including up to 18 months in prison for each count.

For the above reasons, it is very important to be familiar with your parenting plan and New Mexico laws when contemplating taking your child out of state. It is always advisable to keep the other parent informed of any out of state trip. If in doubt, contact an experienced family law attorney in advance of any relocation of the child.


Related Reading:

  • Custodial Interference in New Mexico Divorce & Family Law Cases
  • Leaving the State
  • Estrangement via Parental Alienation
  • The Child‘s Response to Parental Alienation

    Collins & Collins, P.C.
    Albuquerque Attorneys

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