In the case of the former, the issues and a parenting plan can usually be worked out in pretty short order. In the latter, the disputes over child custody and time-sharing can literally last until the children reach maturity.
It is up the parties on they wish to proceed for the most part. Child custody can be cordial and friendly, or high conflict. There are many possible grounds for complications if the parties decide to go the high conflict route. It is important to understand these possible pitfalls as you move forward. Understanding them may be key to avoiding them even if the other side is determined to lay every obstacle before you.
Educating Yourself on the Laws and Rules of New Mexico Child Custody
Perhaps the best thing you can do for you and your children is to understand the laws and rules regarding child custody in New Mexico. This is helpful whether you have a friendly co-parenting situation or a high conflict custody custody battle.
There are many frequently asked questions that come up in child custody and time-sharing situations. We have tried to address some of the most common on the FAQ pages that follow.
Every Child Custody Case Deserves Individual Analysis
Keep in mind that the FAQ pages that follow as well as the content on this site generally are strictly general in nature. Every case is different. The law is vast and complex and will have unique applications in every individual case.
If you can afford it, it is important to enlist the assistance of an experienced divorce and family law attorney. If not, there are many resources available throughout New Mexico to help low income families in these situations. The best place to begin collecting these resources is at the pro se desk at the courthouse in your area.
How long do I have to live in New Mexico to file for child custody?
This is a very common question in child custody and/or time-sharing disputes. Much of the time, it is asked by parents who have recently moved to New Mexico. Other times, it is asked by those looking to move to New Mexico. Finally, there are times where it is asked because one of the parents believes that he or she can gain advantages over the other party by trying to open the case or move the case to New Mexico.
Each Case Must be Individually Evaluated
Each raises a host of issues, the highlights of which will be addressed below. However, keep in mind that are countless variations depending upon the facts so every case must be individually analyzed for a proper determination of possible child custody jurisdiction and how best to archive your goals.
Basic Residency Requirements for New Mexico Child Custody Jurisdiction
The simple answer is 6 months, but it is not always so simple.
The simple answer to the question of how long you must live in New Mexico to file for child custody is 6 months.
However, the simple answer generally only applies where no prior divorce or custody related court action has been initiated in another state.
The New Mexico Statutes § 40-10A-201 on initial child-custody jurisdiction outlines the basic requirements for jurisdiction over child custody. Among the most important, which is for the protection of the child and the parents, is that a parent may not simply move to New Mexico in order to unfairly seize jurisdiction from another state.
Continuing Jurisdiction of Family Court Over Child Custody
Related to this basic jurisdictional requirement that no other state has jurisdiction is the continuing jurisdiction that states maintain over child custody matters. New Mexico has a provision addressing this, as do many other states.
Most states are protective of child custody jurisdiction.
In essence, each state is fairly protective of children and its courts’ jurisdiction over child custody. Simply moving to another state, even if for 6 months, will not necessarily transfer jurisdiction.
New Mexico Statute § 40-10A-202 addresses the “exclusive, continuing jurisdiction” of New Mexico courts over child custody. Many, if not most, states will have similar statutes.
Essentially, the courts will not forfeit jurisdiction unless there are no further significant ties between the child or parents with New Mexico. There are a number of criteria used to evaluate those ties. Simple relocation to New Mexico (or from New Mexico) will not defeat the original state’s jurisdiction.
Emergency New Mexico Jurisdiction Over Child Custody
New Mexico Statute § 40-10A-204 addresses temporary emergency jurisdiction over child custody. This is actually a pretty common question itself, how do I get emergency child custody jurisdiction?
“Emergency child custody jurisdiction” is rare.
It is actually fairly difficult and rare to obtain emergency jurisdiction over child custody. It must be determined that the child is currently in New Mexico and has either been abandoned or whose safety is in jeopardy.
Most of the calls we get on this do not meet the criteria. However, if there is a sincere good faith belief that the criteria is present, then it is certainly advisable to immediately file a motion with the court for emergency jurisdiction.
Keep in mind that it can take some time to get a hearing even in an “emergency.” Unfortunately, the family law courts are extremely busy and hearings are not that easy to come by. In short, start the process immediately.
Many Other Issues on Child Custody Jurisdiction
There are many issues that may come up in these cases. Likewise, there are many variations—many (but not all) of which are addressed by New Mexico statute.
A simple review of the statutes names will illustrate the potential complexity:
40-10A-201 Initial child-custody jurisdiction
40-10A-202 Exclusive, continuing jurisdiction
40-10A-203 Jurisdiction to modify determination
40-10A-204 Temporary emergency jurisdiction
40-10A-205 Notice; opportunity to be heard; joinder
40-10A-206 Simultaneous proceedings
40-10A-207 Inconvenient forum
40-10A-208 Jurisdiction declined by reason of conduct
It is important to do this right away. Failure to abide by the laws can have serious consequences for you and your children.
What Should I Expect from a Court Clinic Evaluation?
A divorce with child custody issues can be very stressful and expensive to undertake. Fortunately, in Albuquerque, New Mexico, the Second Judicial District Court offers a child custody evaluation service, known as the Court Clinic. The Court Clinic is staffed by social workers, psychologists and family therapists whose sole interest is in promoting the best interests of the children whose families are before the family court in domestic relations matters.
The Court Clinic child custody evaluation is not a quick process. The Court Clinic is fairly backed up most of the time. The process typically takes a couple of months. There is not much to do increase the pace. Once the case is with Court Clinic, it is in their hands for the most part. The judge will not typically intervene.
Not only does the Court not typically interfere with the process, the Courts usually follow the Clinic recommendations so it is important to put your best foot forward. An experienced child custody attorney can help.
Court Clinic Advisory Consultation
The first step upon referral to Court Clinic is an assessment.
Once the family court judge issues an order referring the child custody evaluation to the Court Clinic, an initial assessment is scheduled which includes interviews with the parents and the children. The assessment is the first step an the advisory consultation, which may include interviews and observed interactions between the children and the parents.
An advisory consultation may take up to six months to complete and usually culminates in a child custody recommendation for the court. Once the evaluation is completed, the family court will set a child custody hearing for the court clinician to report back the findings to the court.
Best Interests of the Child(ren) is the Legal Standard for Any New Mexico Custody Case and Evaluation
The Court Clinician has great latitude in recommendations with the goal of the bests interests of the child(ren).
During the child custody hearing, the court clinician will be required to testify as to their findings and will make recommendations to the court as to what would be in the best interests of the children. A court clinician has substantial latitude in the recommendations that can be made to the court, all in an effort to ensure the best interests of the child(ren) are met.
Aside from making child custody recommendations, the court clinician can recommend supervised or unsupervised visits, parenting classes, anger management classes, and even random drug testing for the parents. In more amicable cases, the court clinic may even mediate a child custody agreement between the parents.
Counseling for Children and Parents May be Required
Time-sharing may be gradually implemented and conditioned upon progress with the child and the parents.
The court clinician can also recommend counseling for the children, or even stepped interactions with the absent parent so that the child can be reintegrated into any new recommended visitation schedule. Stepped interactions can include a few supervised visits, followed by unsupervised visits until the child reintegrates and gets comfortable with the family’s new situation.
The Court Clinic may also suggest counseling for one or both of the parents. The counseling may be a condition of visitation or time-sharing with time-sharing stepped up as counseling progresses.
Priority Consultation May be Ordered When Safety of Children at Issue
In situations where abuse of the child(ren) is alleged or the safety of the children is otherwise at issue, the family court can order an immediate priority consultation with an on-call clinician. When a child may be in danger and time is of the essence, the family court can order a priority consultation to be conducted by the court clinic within days of the court order.
The normal Court Clinic Process can take months. A priority consultation is faster due to the urgency. The report back hearing will usually be completed within weeks and not months like in the advisory consultation.
Consult an Attorney Experienced in Family Law
It is very important to understand what your rights are when the court clinic conducts a child custody evaluation and makes a recommendation to the family court. In many instances, the court clinician may make recommendations that do not suit your family. An experienced family law attorney can guide you and help you if the clinician’s recommendation does not suit your family’s needs and you want to take further action to counter an unsatisfactory recommendation.