2020 New Mexico Statutes
Chapter 40 - Domestic Affairs
Article 10A - Child Custody
Article 2 - JURISDICTION
Section 40-10A-201 - Initial child-custody jurisdiction.
(a) Except as otherwise provided in Section 204, a court of this state has jurisdiction to make an initial child-custody determination only if:
(1) this state is the home state of the child on the date of the commencement of the proceeding, or was the home state of the child within six months before the commencement of the proceeding and the child is absent from this state but a parent or person acting as a parent continues to live in this state;
(2) a court of another state does not have jurisdiction under paragraph (1) or a court of the home state of the child has declined to exercise jurisdiction on the ground that this state is the more appropriate forum under Section 207 or 208] and:
(A) the child and the child's parents, or the child and at least one parent or a person acting as a parent, have a significant connection with this state other than mere physical presence; and
(B) substantial evidence is available in this state concerning the child's care, protection, training and personal relationships;
(3) all courts having jurisdiction under paragraph (1) or (2) have declined to exercise jurisdiction on the ground that a court of this state is the more appropriate forum to determine the custody of the child under Section 207 or 208; or
(4) no court of any other state would have jurisdiction under the criteria specified in paragraph (1), (2) or (3).
(b) Subsection (a) is the exclusive jurisdictional basis for making a child-custody determination by a court of this state.
(c) Physical presence of, or personal jurisdiction over, a party or a child is not necessary or sufficient to make a child-custody determination.
History: Laws 2001, ch. 114, § 201.
ANNOTATIONSHome state. — Where the child continuously lived in New Mexico with the child's parent from birth until the child was four months of age when the parent and the child moved to Texas; the child and the parent lived in Texas for less than two weeks when the parent returned to New Mexico and filed a child custody proceeding; the child was on New Mexico medicaid; and the child's physician was in New Mexico, New Mexico was the child's home state and the New Mexico court had jurisdiction even though the Texas parent had filed a custody proceeding in Texas before the New Mexico proceeding was filed. Malissa v. Matthew Wayne H., 2008-NMCA-128, 145 N.M. 22, 193 P.3d 569.
As defined in 40-10-3E NMSA 1978 (now 40-10A-102(7) NMSA 1978) and used in this section, "home state" means the state in which the child resided for six consecutive months immediately preceding the commencement of the current, not original, proceedings. Trask v. Trask, 1986-NMCA-098, 104 N.M. 780, 727 P.2d 88.
Concurrent jurisdiction with tribal court. — In a divorce and custody dispute, where the mother was a non-Indian; the father was an enrolled member of the tribe; the couple's children were enrolled members of the tribe; the couple spent most of their four years of married life on the tribal lands; the mother took the children to her father's house on non-Indian-owned fee land within the exterior boundaries of the tribal lands; the district court awarded the mother temporary custody of the children; the mother later filed a divorce action in the district court; and the father subsequently filed a parallel divorce action in tribal court, the district court had significant connections jurisdiction that was concurrent with the jurisdiction of the tribal court over the child-custody dispute. Garcia v. Gutierrez, 2009-NMSC-044, 147 N.M. 105, 217 P.3d 591, rev'g 2008-NMCA-116, 144 N.M. 761, 192 P.3d 275.
Parental Kidnapping Prevention Act, 28 U.S.C. §1738A (2000) does not apply to tribes and under the act, tribes are not bound to give full faith and credit to state court judgments in state court cases and New Mexico is not bound to defer to tribal courts under the act. Garcia v. Gutierrez, 2009-NMSC-044, 147 N.M. 105, 217 P.3d 591, rev'g 2008-NMCA-116, 144 N.M. 761, 192 P.3d 275.
Termination of parental rights. — A straight termination proceeding, not involving custody, adoption, or other similar issues, does not fall within the Child Custody Jurisdiction Act (now see the Uniform Child-Custody Jurisdiction and Enforcement Act). In re Vernon R.V., 1999-NMCA-125, 128 N.M. 242, 991 P.2d 986.
Compliance required with only one of prerequisites in Subsection A. — The New Mexico statute requires compliance with only one of four prerequisites in 40-10-4 NMSA 1978 (now see this section) to satisfy the jurisdictional requirement. Olsen v. Olsen, 1982-NMSC-112, 98 N.M. 644, 651 P.2d 1288; Serna v. Salazar, 1982-NMSC-117, 98 N.M. 648, 651 P.2d 1292.
Jurisdiction is mixed question of law and fact. — A determination of jurisdiction under this section involves a mixed question of law and fact, and an evidentiary record is necessary for a review of the factual claims in an appeal. Meier v. Davignon, 1987-NMCA-030, 105 N.M. 567, 734 P.2d 807.
Assertion of custody rights through guardianship proceedings. — In New Mexico, while a district court is invested with subject matter jurisdiction to grant a petition for guardianship of a minor or to adjudicate custody disputes between parents and non-parents involving children, except as provided in former 32-1-58 NMSA 1978, in the Children's Code (now 32A-4-31 NMSA 1978), over objection of a parent, guardianship proceedings are not the proper means to involuntarily terminate a parent's right to custody of his or her children. In re Sabrina Mae D., 1992-NMCA-050, 114 N.M. 133, 835 P.2d 849, cert. denied, 113 N.M. 744, 832 P.2d 1223.
Jurisdiction found. — Mother's voluntary placement of her child with grandparents in this state and allowing the child to remain in New Mexico for almost ten months prior to seeking her return, provided a proper basis for the court's determination that the child had a significant connection with this state so as to enable the court to exercise jurisdiction over the child. In re Sabrina Mae D., 1992-NMCA-050, 114 N.M. 133, 835 P.2d 849, cert. denied, 113 N.M. 744, 832 P.2d 1223.
A New Mexico court had jurisdiction to modify a California order on custody since New Mexico was the home state of the parents and children at the time of commencement of the proceeding and since the California divorce decree court had retained jurisdiction only over property and related issues, not custody issues. Nelson v. Nelson, 1996-NMCA-015, 121 N.M. 243, 910 P.2d 319.
The New Mexico district court had jurisdiction over an action by a biological mother's lesbian domestic partner for time sharing and custody of children because there were significant connections between the mother, the children, and New Mexico, and there was substantial evidence regarding the children's care, protection, training and relationships. Barnae v. Barnae, 1997-NMCA-077, 123 N.M. 583, 943 P.2d 1036.
Jurisdiction not asserted. — Where the children resided in New Mexico for less than one year at the time of the divorce, and there is no indication of any connections between the children and the state other than the children's relationship to their father, jurisdiction could not be asserted in "best interests" of children. Trask v. Trask, 1986-NMCA-098, 104 N.M. 780, 727 P.2d 88.
Jurisdiction to make initial child custody determination. — In a domestic relations case, where petitioner and respondent were in a domestic relationship and decided to raise a child together, and where respondent was artificially inseminated by an anonymous donor and gave birth to child, and where petitioner initiated an action in district court to establish parentage and determine custody and timesharing with regard to child when the domestic relationship began to fall apart, and where respondent filed an objection to the district court's jurisdiction over the case after respondent and child left the state of New Mexico, the district court erred in declining jurisdiction, because it was undisputed that child and respondent lived in New Mexico for at least six consecutive months immediately before the commencement of a child custody proceeding, and therefore at the time the petition was filed, New Mexico was child's home state and the district court had jurisdiction to make the initial child custody determination. Tomlinson v. Weatherford, 2017-NMCA-055.
Venue. — A court which renders the initial decree in child custody and visitation proceedings is the proper venue for subsequent modifications of the cutodial order. Dugie v. Cameron, 1999-NMSC-002, 126 N.M. 433, 971 P.2d 390.
Law reviews. — Annual Survey of New Mexico Family Law, see 17 N.M.L. Rev. 291 (1987).
For note, "Domestic Relations - An Interpretation of the Parental Kidnapping Prevention Act and the New Mexico Child Custody Jurisdiction Act; State ex rel. Dept. of Human Servs. v. Avinger," see 17 N.M.L. Rev. 409 (1987).
For annual survey of civil procedure in New Mexico, see 18 N.M.L. Rev. 287 (1988).
For annual survey of domestic relations law in New Mexico, see 18 N.M.L. Rev. 371 (1988).
Am. Jur. 2d, A.L.R. and C.J.S. references. — Child custody: when does state that issued previous custody determination have continuing jurisdiction under Uniform Child Custody Jurisdiction Act (UCCJA) or Parental Kidnapping Prevention Act (PKPA), 28 USCS § 1738A, 83 A.L.R.4th 742.
Significant connection jurisdiction of court under § 3(a)(2) of the Uniform Child Custody Jurisdiction Act (UCCJA) and the Parental Kidnapping Prevention Act (PKPA), 28 USCS § 1738A(c)(2)(B), 5 A.L.R.5th 550.
Abandonment and emergency jurisdiction of court under § 3(a)(3) of the Uniform Child Custody Juridiction Act (UCCJA) and the Parental Kidnapping Prevention Act (PKPA), 28 USCS § 1738A(c)(2)(C), 5 A.L.R.5th 788.
Home state jurisdiction of court under § 3(a)(1) of the Uniform Child Custody Jurisdiction Act (UCCJA) or the Parental Kidnapping Prevention Act (PKPA), 28 USCS § 1738A(c)(2)(A), 6 A.L.R.5th 1.
Default jurisdiction of court under § 3(a)(4) of the Uniform Child Custody Jurisdiction Act (UCCJA) or the Parental Kidnapping Prevention Act (PKPA), 28 USCS § 1738A(c)(2)(D), 6 A.L.R.5th 69.
Significant connection jurisdiction of court to modify foreign child custody decree under §§ 3(a)(2) and 14(b) of the Uniform Child Custody Jurisdiction Act (UCCJA) and the Parental Kidnapping Prevention Act (PICPA), 28 U.S.C.A. §§ 1738A(c)(2)(b) and 1738A(f)(1), 67 A.L.R.5th 1.
Home state jurisdiction of court to modify foreign child custody decree under §§ 3(a)(1) and 14(a)(2) of Uniform Child Custody Jurisdiction Act (UCCJA) and Parental Kidnapping Prevention Act (PKPA), 28 U.S.C.A. §§ 1738A(c)(2)(A) and 1738A(f)(1), 72 A.L.R.5th 249.
Declining jurisdiction to modify prior child custody decree under § 14(a)(1) of Uniform Child Custody Jurisdiction Act (UCCJA) and Parental Kidnapping Prevention Act (PKPA), 28 U.S.C.A. § 1738A(f)(2), 73 A.L.R.5th 185.
Abandonment jurisdiction of court under §§ 3(a)(3)(i) and 14(a) of Uniform Child Custody Jurisdiction Act and Parental Kidnapping Prevention Act, 28 U.S.C.A. §§ 1738A(c)(2)(C)(i) and 1738A(f), notwithstanding existence of prior valid custody decree rendered by second state, 78 A.L.R.5th 465.
Emergency jurisdiction of court under §§ 3(a)(3)(ii) and 14(a) of Uniform Child Custody Jurisdiction Act and Parental Kidnapping Prevention Act, 28 U.S.C.A. §§ 1738A(c)(2)(C)(ii) and 1738A(f), to protect interests of child notwithstanding existence of prior, valid custody decree rendered by another state, 80 A.L.R.5th 117.
