2020 New Mexico Statutes
Chapter 40 - Domestic Affairs
Article 4 - Dissolution of Marriage
Section 40-4-8 - Contested custody; appointment of guardian ad litem.
A. In any proceeding for the disposition of children when custody of minor children is contested by any party, the court may appoint an attorney at law as guardian ad litem on the court's motion or upon application of any party to appear for and represent the minor children. Expenses, costs and attorneys' fees for the guardian ad litem may be allocated among the parties as determined by the court.
B. When custody is contested, the court:
(1) shall refer that issue to mediation if feasible unless a party asserts or it appears to the court that domestic violence or child abuse has occurred, in which event the court shall halt or suspend mediation unless the court specifically finds that:
(a) the following three conditions are satisfied: 1) the mediator has substantial training concerning the effects of domestic violence or child abuse on victims; 2) a party who is or alleges to be the victim of domestic violence is capable of negotiating with the other party in mediation, either alone or with assistance, without suffering from an imbalance of power as a result of the alleged domestic violence; and 3) the mediation process contains appropriate provisions and conditions to protect against an imbalance of power between the parties resulting from the alleged domestic violence or child abuse; or
(b) in the case of domestic violence involving parents, the parent who is or alleges to be the victim requests mediation and the mediator is informed of the alleged domestic violence;
(2) may order, in addition to or in lieu of the provisions of Paragraph (1) of this subsection, that each of the parties undergo individual counseling in a manner that the court deems appropriate, if the court finds that the parties can afford the counseling; and
(3) may use, in addition to or in lieu of the provisions of Paragraph (1) of this subsection, auxiliary services such as professional evaluation by application of Rule 11-706 of the New Mexico Rules of Evidence or Rule 1-053 of the Rules of Civil Procedure for the District Courts.
C. As used in this section:
(1) "child abuse" means:
(a) that a child has been physically, emotionally or psychologically abused by a parent;
(b) that a child has been: 1) sexually abused by a parent through criminal sexual penetration, incest or criminal sexual contact of a minor as those acts are defined by state law; or 2) sexually exploited by a parent through allowing, permitting or encouraging the child to engage in prostitution and allowing, permitting, encouraging or engaging the child in obscene or pornographic photographing or filming or depicting a child for commercial purposes as those acts are defined by state law;
(c) that a child has been knowingly, intentionally or negligently placed in a situation that may endanger the child's life or health; or
(d) that a child has been knowingly or intentionally tortured, cruelly confined or cruelly punished; provided that nothing in this paragraph shall be construed to imply that a child who is or has been provided with treatment by spiritual means alone through prayer, in accordance with the tenets and practices of a recognized church or religious denomination, by a duly accredited practitioner of the church or denomination, is for that reason alone a victim of child abuse within the meaning of this paragraph; and
(2) "domestic violence" means one parent causing or threatening physical harm or assault or inciting imminent fear of physical, emotional or psychological harm to the other parent.
History: 1953 Comp., § 22-7-7, enacted by Laws 1977, ch. 286, § 1; 1993, ch. 241, § 1.
ANNOTATIONSCross references. — For guardian ad litem for infant defendant, see 38-4-10 NMSA 1978.
For failure to apply for appointment of guardian ad litem, see 38-4-11 NMSA 1978.
For liability of guardian ad litem for costs, see 38-4-12 NMSA 1978.
For appointment of guardian ad litem to defend suit, see 38-4-15 NMSA 1978.
For compromise by guardian ad litem, see 38-4-16 NMSA 1978.
For costs paid by guardian ad litem, see 38-4-17 NMSA 1978.
For guardians of minors, see 45-5-201 to 45-5-212 NMSA 1978.
For guardians of incapacitated persons, see 45-5-301 to 45-5-315 NMSA 1978.
For protection of property of persons under disability and minors, see 45-5-401 to 45-5-431 NMSA 1978.
Compiler's notes. — The section heading of this section in Laws 1977, ch. 286, § 1, designated this section as "2277." The section number has been corrected in the history as set out above.
The 1993 amendment, effective July 1, 1993, designated the provisions of this section as Subsection A and added Subsections B and C.
Standing of a parent to sue a guardian ad litem. — A parent does not have standing to sue a guardian ad litem appointed in a custody proceeding on behalf of the child because the parent has been found to be unable to act in the best interests of the child and such a lawsuit would create a conflict of interest in the custody case. Kimbrell v. Kimbrell, 2014-NMSC-027, rev'g 2013-NMCA-070, 306 P.3d 495.
Immunity of a guardian ad litem. — A guardian ad litem appointed pursuant to Rule 1-053.3 NMRA is protected by absolute quasi-judicial immunity from suit arising from the performance of the guardian ad litem's duties unless the guardian ad litem's alleged tortuous conduct is clearly and completely outside the scope of the guardian ad litem's appointment. The custody court that appointed the guardian ad litem is the appropriate court to determine whether the guardian ad litem's alleged misconduct arose from acts clearly and completely outside the scope of the appointment and, if so, the custody court should appoint a guardian ad litem, other than a parent, pursuant to Rule 1-017(C) NMRA to represent the child in any necessary litigation. Kimbrell v. Kimbrell, 2014-NMSC-027, rev'g 2013-NMCA-070, 306 P.3d 495.
Where the guardian ad litem was appointed as an arm of the district court pursuant to Rule 1-053 NMRA; one parent, who obstructed the guardian ad litem's efforts to interview one of the children, filed a tort action against the guardian ad litem alleging that the guardian ad litem blocked the child's contact with the child's siblings; and the guardian ad litem was ordered by the district court to interview the children outside the presence of the parents and the attorneys, the guardian ad litem had the discretion to control communications between the children until the guardian ad litem completed the investigation and the guardian ad litem was absolutely immune from being sued for controlling communications between the siblings. Kimbrell v. Kimbrell, 2014-NMSC-027, rev'g 2013-NMCA-070, 306 P.3d 495.
Parent's standing to sue guardian on behalf of the child. — Parents may sue their child's guardian ad litem for injuries caused by the guardian to the child if the guardian acts as a private advocate or exceeds the scope of the guardian's appointment as an arm of the court. Kimbrell v. Kimbrell, 2013-NMCA-070, 306 P.3d 495, rev'd, 2014-NMSC-027.
Guardian ad litem liability for conspiracy. — Where, in a contentious divorce and child custody proceeding, plaintiff filed a tort action against defendant and the child's guardian ad litem alleging that they colluded to block telephone calls from the child to the child's siblings and plaintiff and defendant entered into a settlement agreement that released defendant from liability, although the action against defendant was moot, the action against the guardian was not moot because, as alleged conspirators, defendant and the guardian were jointly and severally liable. Kimbrell v. Kimbrell, 2013-NMCA-070, 306 P.3d 495, rev'd, 2014-NMSC-027.
Guardian ad litem exceeded scope of appointment. — Where, in a contentious divorce and child custody proceeding, plaintiff filed a tort action against the child's guardian ad litem alleging that the guardian published the child's medical records to the court, defendant and defendant's counsel; increased conflict between the parties by rejecting settlement offers; failed to correct defendant's behavior when defendant ignored the child; failed to report defendant's efforts to block contact between the child and the child's siblings; and colluded with defendant to block telephone calls from the child to the child's siblings, the guardian was immune from suit for all of the guardian's acts except for the alleged act of colluding with defendant to block the child's telephone calls, which would exceed the scope of the guardian's appointment. Kimbrell v. Kimbrell, 2013-NMCA-070, 306 P.3d 495, rev'd, 2014-NMSC-027.
Discretion of court. — This section clearly makes it discretionary with the court as to whether an appointment of a guardian ad litem should be made. Lopez v. Lopez, 1981-NMSC-138, 97 N.M. 332, 639 P.2d 1186.
Deduction of guardian fees from child support. — Nowhere in either the child support guidelines or the guardian ad litem statute is any specialized procedure outlined to insure the payment of guardian ad litem fees by deducting them from child support. Grant v. Cumiford, 2005-NMCA-058, 137 N.M. 485, 112 P.3d 1142.
Nature of guardian fees. — Guardian ad litem fees should not be treated any differently from any other attorney fees. Grant v. Cumiford, 2005-NMCA-058, 137 N.M. 485, 112 P.3d 1142.
Mediation not required. — The language of Subsection B(1) of this section and 40-4-9.1G NMSA 1978 permits the court to bypass mediation if it does not appear to be feasible, even in non-domestic violence or abuse situations. Thomas v. Thomas, 1999-NMCA-135, 128 N.M. 177, 991 P.2d 7, cert. denied, 128 N.M. 150, 990 P.2d 824.
Remand of custody decision for representation of child. — When father waits to request findings of fact and conclusions of law until after court files custody judgment and he himself files his notice of appeal, lack of any findings in record precludes review of the evidence by appellate court on behalf of father; however, where child had no legal representative, disposition on behalf of child requires remand to district court for issuance of findings as to mental health of mother. Martinez v. Martinez, 1984-NMCA-026, 101 N.M. 493, 684 P.2d 1158.
Am. Jur. 2d, A.L.R. and C.J.S. references. — 42 Am. Jur. 2d Infants §§ 155 to 194.
Attorneys' fees awards in parent-nonparent child custody case, 45 A.L.R.4th 212.
