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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

A great many issues and complications can arise in child custody jurisdictional disputes upon relocation to New Mexico. A look at the statutes will show you just a few of the ones that have been codified.

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
  • 40-10A-209 Information to be submitted to court
  • 40-10A-210 Appearance of parties and child

Seek Legal Guidance

As you can see, this seemingly simple question can get quite complex.  It is very important to seek the legal guidance of an experienced New Mexico child custody attorney.

It is important to do this right away.  Failure to abide by the laws can have serious consequences for you and your children.

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