2021 New Mexico Statutes
Chapter 40 - Domestic Affairs
Article 4 - Dissolution of Marriage
Section 40-4-9.1 - Joint custody; standards for determination; parenting plan.

A. There shall be a presumption that joint custody is in the best interests of a child in an initial custody determination. An award of joint custody does not imply an equal division of financial responsibility for the child. Joint custody shall not be awarded as a substitute for an existing custody arrangement unless there has been a substantial and material change in circumstances since the entry of the prior custody order or decree, which change affects the welfare of the child such that joint custody is presently in the best interests of the child. With respect to any proceeding in which it is proposed that joint custody be terminated, the court shall not terminate joint custody unless there has been a substantial and material change in circumstances affecting the welfare of the child, since entry of the joint custody order, such that joint custody is no longer in the best interests of the child.

B. In determining whether a joint custody order is in the best interests of the child, in addition to the factors provided in Section 40-4-9 NMSA 1978, the court shall consider the following factors:

(1) whether the child has established a close relationship with each parent;

(2) whether each parent is capable of providing adequate care for the child throughout each period of responsibility, including arranging for the child's care by others as needed;

(3) whether each parent is willing to accept all responsibilities of parenting, including a willingness to accept care of the child at specified times and to relinquish care to the other parent at specified times;

(4) whether the child can best maintain and strengthen a relationship with both parents through predictable, frequent contact and whether the child's development will profit from such involvement and influence from both parents;

(5) whether each parent is able to allow the other to provide care without intrusion, that is, to respect the other's parental rights and responsibilities and right to privacy;

(6) the suitability of a parenting plan for the implementation of joint custody, preferably, although not necessarily, one arrived at through parental agreement;

(7) geographic distance between the parents' residences;

(8) willingness or ability of the parents to communicate, cooperate or agree on issues regarding the child's needs; and

(9) whether a judicial adjudication has been made in a prior or the present proceeding that either parent or other person seeking custody has engaged in one or more acts of domestic abuse against the child, a parent of the child or other household member. If a determination is made that domestic abuse has occurred, the court shall set forth findings that the custody or visitation ordered by the court adequately protects the child, the abused parent or other household member.

C. In any proceeding in which the custody of a child is at issue, the court shall not prefer one parent as a custodian solely because of gender.

D. In any case in which the parents agree to a form of custody, the court should award custody consistent with the agreement unless the court determines that such agreement is not in the best interests of the child.

E. In making an order of joint custody, the court may specify the circumstances, if any, under which the consent of both legal custodians is required to be obtained in order to exercise legal control of the child and the consequences of the failure to obtain mutual consent.

F. When joint custody is awarded, the court shall approve a parenting plan for the implementation of the prospective custody arrangement prior to the award of joint custody. The parenting plan shall include a division of a child's time and care into periods of responsibility for each parent. It may also include:

(1) statements regarding the child's religion, education, child care, recreational activities and medical and dental care;

(2) designation of specific decision-making responsibilities;

(3) methods of communicating information about the child, transporting the child, exchanging care for the child and maintaining telephone and mail contact between parent and child;

(4) procedures for future decision making, including procedures for dispute resolution; and

(5) other statements regarding the welfare of the child or designed to clarify and facilitate parenting under joint custody arrangements.

In a case where joint custody is not agreed to or necessary aspects of the parenting plan are contested, the parties shall each submit parenting plans. The court may accept the plan proposed by either party or it may combine or revise these plans as it deems necessary in the child's best interests. The time of filing of parenting plans shall be set by local rule. A plan adopted by the court shall be entered as an order of the court.

G. Where custody is contested, the court shall refer that issue to mediation if feasible. The court may also use auxiliary services such as professional evaluation by application of Rule 706 [Rule 11-706 NMRA] of the New Mexico Rules of Evidence or Rule 53 [Rule 1-053 NMRA] of the Rules of Civil Procedure for the District Courts.

H. Notwithstanding any other provisions of law, access to records and information pertaining to a minor child, including medical, dental and school records, shall not be denied to a parent because that parent is not the child's physical custodial parent or because that parent is not a joint custodial parent.

I. Whenever a request for joint custody is granted or denied, the court shall state in its decision its basis for granting or denying the request for joint custody. A statement that joint custody is or is not in the best interests of the child is not sufficient to meet the requirements of this subsection.

J. An award of joint custody means that:

(1) each parent shall have significant, well-defined periods of responsibility for the child;

(2) each parent shall have, and be allowed and expected to carry out, responsibility for the child's financial, physical, emotional and developmental needs during that parent's periods of responsibility;

(3) the parents shall consult with each other on major decisions involving the child before implementing those decisions; that is, neither parent shall make a decision or take an action which results in a major change in a child's life until the matter has been discussed with the other parent and the parents agree. If the parents, after discussion, cannot agree and if one parent wishes to effect a major change while the other does not wish the major change to occur, then no change shall occur until the issue has been resolved as provided in this subsection;

(4) the following guidelines apply to major changes in a child's life:

(a) if either parent plans to change his home city or state of residence, he shall provide to the other parent thirty days' notice in writing stating the date and destination of move;

(b) the religious denomination and religious activities, or lack thereof, which were being practiced during the marriage should not be changed unless the parties agree or it has been otherwise resolved as provided in this subsection;

(c) both parents shall have access to school records, teachers and activities. The type of education, public or private, which was in place during the marriage should continue, whenever possible, and school districts should not be changed unless the parties agree or it has been otherwise resolved as provided in this subsection;

(d) both parents shall have access to medical and dental treatment providers and records. Each parent has authority to make emergency medical decisions. Neither parent may contract for major elective medical or dental treatment unless both parents agree or it has been otherwise resolved as provided in this subsection; and

(e) both parents may attend the child's public activities and both parents should know the necessary schedules. Whatever recreational activities the child participated in during the marriage should continue with the child's agreement, regardless of which of the parents has physical custody. Also, neither parent may enroll the child in a new recreational activity unless the parties agree or it has been otherwise resolved as provided in this subsection; and

(5) decisions regarding major changes in a child's life may be decided by:

(a) agreement between the joint custodial parents;

(b) requiring that the parents seek family counseling, conciliation or mediation service to assist in resolving their differences;

(c) agreement by the parents to submit the dispute to binding arbitration;

(d) allocating ultimate responsibility for a particular major decision area to one legal custodian;

(e) terminating joint custody and awarding sole custody to one person;

(f) reference to a master pursuant to Rule 53 [Rule 1-053 NMRA] of the Rules of Civil Procedure for the District Courts; or

(g) the district court.

K. When any person other than a natural or adoptive parent seeks custody of a child, no such person shall be awarded custody absent a showing of unfitness of the natural or adoptive parent.

L. As used in this section:

(1) "child" means a person under the age of eighteen;

(2) "custody" means the authority and responsibility to make major decisions in a child's best interests in the areas of residence, medical and dental treatment, education or child care, religion and recreation;

(3) "domestic abuse" means any incident by a household member against another household member resulting in:

(a) physical harm;

(b) severe emotional distress;

(c) a threat causing imminent fear of physical harm by any household member;

(d) criminal trespass;

(e) criminal damage to property;

(f) stalking or aggravated stalking, as provided in Sections 30-3A-3 and 30-3A-3.1 NMSA 1978; or

(g) harassment, as provided in Section 30-3A-2 NMSA 1978;

(4) "joint custody" means an order of the court awarding custody of a child to two parents. Joint custody does not imply an equal division of the child's time between the parents or an equal division of financial responsibility for the child;

(5) "parent" means a natural parent, adoptive parent or person who is acting as a parent who has or shares legal custody of a child or who claims a right to have or share legal custody;

(6) "parenting plan" means a document submitted for approval of the court setting forth the responsibilities of each parent individually and the parents jointly in a joint custody arrangement;

(7) "period of responsibility" means a specified period of time during which a parent is responsible for providing for a child's physical, developmental and emotional needs, including the decision making required in daily living. Specified periods of responsibility shall not be changed in an instance or more permanently except by the methods of decision making described under Subsection L [Subsection J] of this section;

(8) "sole custody" means an order of the court awarding custody of a child to one parent; and

(9) "visitation" means a period of time available to a noncustodial parent, under a sole custody arrangement, during which a child resides with or is under the care and control of the noncustodial parent.

History: 1978 Comp., § 40-4-9.1, enacted by Laws 1981, ch. 112, § 1; reenacted by Laws 1986, ch. 41, § 1; 1999, ch. 242, § 1.

Bracketed material. — The bracketed material was inserted by the compiler and is not part of the law. The reference in Subsection L(7) to Subsection L appears to be erroneous. The apparent intended reference is to Subsection J.

The 1999 amendment, effective June 18, 1999, added Subsection B(9); in Subsection L, added Paragraph (3), redesignated the subsequent paragraphs accordingly, and substituted "decision making described under Subsection L of this section" for "decision making described under the definition of joint custody" in Paragraph (7); and made stylistic changes throughout the section.

The "holding out" provision with regard to paternity applies to women. — Where petitioner alleged that petitioner and respondent, who both were women, had a committed, long-term domestic relationship; they agreed to bring a child into their relationship; respondent adopted a child; petitioner never adopted the child; and petitioner supported respondent and the child financially, lived in the family home, held the child out as petitioner's natural child, and co-parented the child for a number of years before the parties dissolved their relationship; petitioner had standing to file an action under 40-11-12 NMSA 1978 (repealed, see 40-11A-601 and 40-11A-602 NMSA 1978) because petitioner alleged sufficient facts to satisfy the hold out provision of Subsection A(4) of 40-11-5 NMSA 1978 (repealed, see 40-11A-204 NMSA 1978) and if petitioner were able to establish a parent child relationship under the Uniform Parentage Act (repealed, see New Mexico Uniform Parentage Act, Chapter 40, Article 11A NMSA 1978), then petitioner would have standing to seek joint custody of the child under 40-4-9.1 NMSA 1978. Chatterjee v. King, 2012-NMSC-019, 280 P.3d 283, rev'g 2011-NMCA-012,149 N.M. 625, 253 P.3d 915.

Recreational expenses. — The requirement for including recreational expenses is implicit in the statutory provision governing joint custody. Section 40-4-9.1(J)(4)(e) NMSA 1978 states that when joint custody is awarded, "whatever recreational activities the child participated in during the marriage should continue with the child's agreement, regardless of which of the parents has physical custody." This provision represents a legislative recognition of the importance of recreational activities to children. But the importance of an activity is not in itself a reason for separate inclusion of the expense for that activity in the child support guidelines. All ordinary expenses are presumably taken into consideration in establishing the guidelines for basic child support. The child support awarded under the guidelines should be adequate to feed and shelter the children, and to provide for recreational activities. Rosen v. Lantis, 1997-NMCA-033, 123 N.M. 231, 938 P.2d 729.

Standing of non-parent to bring a custody claim. — Absent a showing of unfitness of the natural or adoptive parent, a person who is not the natural or adoptive parent does not have standing to bring a claim for custody. Chatterjee v. King, 2011-NMCA-012, 149 N.M. 625, 253 P.3d 915, cert. granted, 2011-NMCERT-001, 150 N.M. 558, 263 P.3d 900.

Where petitioner and respondent were in a committed relationship for several years; respondent adopted a child; petitioner did not adopt the child; petitioner and respondent lived as a family, jointly raised the child, and held themselves out as parents; petitioner provided financial and emotional support for the child, cared for the child, and formed a parental relationship with the child; and respondent ended the relationship and moved out with the child, petitioner did not have standing to bring a claim for custody of the child. Chatterjee v. King, 2011-NMCA-012, 149 N.M. 625, 253 P.3d 915, cert. granted, 2011-NMCERT-001, 150 N.M. 558, 263 P.3d 900.

Standing of non-parent to bring claim for visitation. — The requirement that a non-parent show unfitness of a natural or adoptive parent before a court can consider a non-parent for custody is not relevant to a determination of visitation and a non-parent who establishes a prima facie case for a parent and child relationship may assert a claim for visitation. Chatterjee v. King, 2011-NMCA-012, 149 N.M. 625, 253 P.3d 915, cert. granted, 2011-NMCERT-001, 150 N.M. 558, 263 P.3d 900.

Where petitioner and respondent were in a committed relationship for several years; respondent adopted a child; petitioner did not adopt the child; petitioner and respondent lived as a family, jointly raised the child, and held themselves out as parents; and petitioner provided financial and emotional support for the child, cared for the child, and formed a parental relationship with the child, petitioner had a colorable claim for standing to bring a claim for visitation. Chatterjee v. King, 2011-NMCA-012, 149 N.M. 625, 253 P.3d 915, cert. granted, 2011-NMCERT-001, 150 N.M. 558, 263 P.3d 900.

Joint custody not infringement on right to travel or relocate. — An order providing for joint custody and requiring the mother to give physical custody of her child to the father unless she returned to New Mexico did not unlawfully infringe upon her right to travel or to relocate. Alfieri v. Alfieri, 1987-NMCA-003, 105 N.M. 373, 733 P.2d 4.

Presumption regarding joint custody. — There is a presumption that joint custody is in the best interests of the child. Grant v. Cumiford, 2005-NMCA-058, 137 N.M. 485, 112 P.3d 1142.

Court, in determining support, should consider all relevant factors. — Where primary custody of children is split between the parties and issues of child support are involved, the court in its broad discretion should consider all of the relevant factors and circumstances in order to achieve a fair balancing of the equities in light of the best interests and welfare of the children and the financial resources of the parents. DeTevis v. Aragon, 1986-NMCA-105, 104 N.M. 793, 727 P.2d 558.

Factors considered. — In considering whether joint custody would promote the best interests of a child, the trial court must determine: (1) whether the child has established such relationships with both parents that he or she would benefit from joint custody; (2) that both parents are fit; (3) that both parents desire continuing involvement with the child; and (4) that both parents are able to communicate and cooperate in promoting the child's best interests. The ability to cooperate concerning joint child custody does not require the parents to have a totally amicable relationship, however: a successful joint custody arrangement requires that the parents be able to isolate their personal conflicts from their roles as parents and that the children be spared whatever resentments and rancor the parents may harbor. Sanchez v. Sanchez, 1988-NMCA-028, 107 N.M. 159, 754 P.2d 536, cert. denied, 107 N.M. 151, 754 P.2d 528.

Discretion of trial court. — A trial court has wide discretion in awarding custody of a child in a divorce case, and the welfare of the child is of primary importance in making the award. Creusere v. Creusere, 1982-NMSC-126, 98 N.M. 788, 653 P.2d 164.

Modification is discretionary. — Whether modification of the initial agreement is appropriate is a matter entrusted to the sound discretion of the trial court, based upon the evidence submitted by the parties. Jeantete v. Jeantete, 1990-NMCA-138, 111 N.M. 417, 806 P.2d 66.

Scope of statement required in court's order. — The requirement, under the provisions of former Subsection B which are similar to those in present Subsection I, that the court must state its reasons for modifying a joint custody order is not satisfied by a simple statement that the circumstances of the parties and their minor child have materially changed since the entry of the final decree. Jaramillo v. Jaramillo, 1985-NMCA-062, 103 N.M. 145, 703 P.2d 922.

Requirement of statement in the custody order. — The plain language of this section requires the court to set forth in its decision the basis for its determination either granting or denying joint custody. Jeantete v. Jeantete, 1990-NMCA-138, 111 N.M. 417, 806 P.2d 66.

Adequacy of statement in court order. — Trial court adequately articulated the basis for its denial of a motion for modification of visitation, where the motion did not specifically seek the granting or denial of joint custody, and the court's order denying modification recited in applicable part: "the motion is denied because the father failed to allege or prove the existence of a material change of circumstances relating to the child." Jeantete v. Jeantete, 1990-NMCA-138, 111 N.M. 417, 806 P.2d 66.

Joint custody award. — As specified by Subsection J(1), an award of joint custody means that "each parent shall have significant, well-defined periods of responsibility for the child"; however, joint custody awards need not equally divide the time period relating to the child's physical custody. Jeantete v. Jeantete, 1990-NMCA-138, 111 N.M. 417, 806 P.2d 66.

When joint custody parents fail to accommodate one another and cannot reach agreement, even with the assistance of counselors, conciliators, mediators or arbitrators, the court has few options available; it may make the controverted decision itself and enforce its determination without changing the legal status of the parents, or it may reevaluate the best interests of the children in light of either or both parents' failure to fulfill joint custody responsibilities, and modify their custody. Strosnider v. Strosnider, 1984-NMCA-082, 101 N.M. 639, 686 P.2d 981.

Discretion of court in making award. — Where a mother, in the Marine Corps, had lived in six different locales in five years, and the father, because of his work schedule, allowed the parties' minor child to live with his sister, the court did not err in awarding father physical custody, but requiring him to maintain the child's present residence with her aunt, while maintaining joint legal custody. Brito v. Brito, 1990-NMCA-062, 110 N.M. 276, 794 P.2d 1205.

Determination not overturned absent abuse of discretion. — The determination of the trial judge in a joint custody decision who saw the parties, observed their demeanor and heard their testimony will not be overturned absent a manifest abuse of discretion. Creusere v. Creusere, 1982-NMSC-126, 98 N.M. 788, 653 P.2d 164.

Denial of joint custody for incompatibility. — The trial court did not abuse its discretion in denying joint custody and in granting sole custody to the wife when the level of incompatibility between the husband and wife was not in the child's best interest and, thus, did not support joint custody of the child. Creusere v. Creusere, 1982-NMSC-126, 98 N.M. 788, 653 P.2d 164.

Burden on party seeking to modify joint custody decree. — A party seeking to modify a decree of joint custody must overcome the presumption of the reasonableness of the original decree. Jeantete v. Jeantete, 1990-NMCA-138, 111 N.M. 417, 806 P.2d 66.

Burden of proof in modification of joint custody arrangements. — In a joint custody arrangement, when one party initiates a proceeding to alter an existing custody arrangement, the party seeking such change has the burden to show that the existing arrangement is no longer workable. Each party will then have the burden to persuade the court that the new custody arrangement or parenting plan proposed by him or her should be adopted by the court, but that party's failure to carry this burden will only mean that the court remains free to adopt the arrangement or plan that it determines best promotes the child's interests. Jaramillo v. Jaramillo, 1991-NMSC-101, 113 N.M. 57, 823 P.2d 299.

Notice and hearing required. — Joint custody cannot be terminated except after a hearing following specific notice that continuation of joint custody will be at issue. Taylor v. Tittman, 1995-NMCA-034, 120 N.M. 22, 896 P.2d 1171.

Modification of joint custody warranted. — Whether or not there was proof of "emotional damage" per se, the observation that the parties' continuing inability to cooperate was affecting the children was a sufficient change in circumstance to support the modification of joint custody. Thomas v. Thomas, 1999-NMCA-135, 128 N.M. 177, 991 P.2d 7, cert. denied, 128 N.M. 150, 990 P.2d 824.

Modification to joint custody reversed. — Judgment changing sole custody in the mother to joint legal custody, unless and until the mother was able to comply with a parenting plan agreed to by the parties, was reversed, where the trial court's findings failed to resolve basic issues material and necessary to a determination that modification of the initial custody agreement to joint custody was in the best interests of the children. Newhouse v. Chavez, 1988-NMCA-110, 108 N.M. 319, 772 P.2d 353, cert. denied, 108 N.M. 197, 769 P.2d 731 (1989).

Modification of existing custody arrangement requires a showing of substantial and material change in circumstances. — Where the district court changed a stipulated interim custody order that allowed mother to relocate with her four children from Ruidoso, New Mexico to Phoenix, Arizona, ordering that the children move back to Ruidoso to live with father during the school year, the district court abused its discretion in ordering joint custody without making a finding that there was a substantial and material change in circumstances, because although the interim order was not a final order, the plain language of this section states that joint custody shall not be awarded as a substitute for any existing custody arrangement that is instituted by court order or decree, unless there has been a substantial and material change in circumstances, and there was nothing in the stipulated interim order establishing that the custody arrangement was temporary or subject to change. Hough v. Brooks, 2017-NMCA-050, cert. denied.

Joint custody order requires a "best interest" analysis. — Where the district court changed a stipulated interim custody order that allowed mother to relocate with her four children from Ruidoso, New Mexico to Phoenix, Arizona, ordering that the children move back to Ruidoso to live with father during the school year, the district court abused its discretion in granting joint custody to mother and father and in awarding primary physical custody to father without making any specific findings related to any of the statutorily mandated factors relevant to a determination of the children's best interests that it was required to consider when making a custody determination. Hough v. Brooks, 2017-NMCA-050, cert. denied.

Relocation of custodial parent. — In situations in which one parent has sole custody of the child, the custodian seeking to relocate with a child is entitled to a presumption that the move is in the best interests of the child, and the burden is on the noncustodial parent to show that the move is against those interests or motivated by bad faith on the part of the custodial parent. However, the designation of one parent as "primary physical custodian" under a court-approved parenting plan in a joint custody situation simply means that the child resides with that parent more than half the time. Consequently, one parent's status as primary physical custodian has no particular significance and should not entitle that parent to the benefit of any presumption. Jaramillo v. Jaramillo, 1991-NMSC-101, 113 N.M. 57, 823 P.2d 299.

Burden on relocating party impermissible. — In joint custody cases, placing the burden on the party seeking to relocate to show that the relocation is in the best interests of the child unconstitutionally impairs the relocating parent's right to travel. Jaramillo v. Jaramillo, 1991-NMSC-101, 113 N.M. 57, 823 P.2d 299.

Modification of joint custody by awarding primary physical custody to father. — Where father filed for a change of custody of his two children, requesting that he be awarded sole legal custody and that he be permitted to relocate to another state with his children, the district court's order, awarding primary physical custody to father and permitting father to relocate children to another state, intended only to modify, not terminate, joint custody, and the district court did not abuse its discretion in modifying joint custody because it considered all of the factors necessary in determining whether relocation was in the best interests of the children. Hopkins v. Wollaber, 2019-NMCA-024.

Mediation not required. — The language of Subsection G of this section and 40-4-8B(1) 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.

Law reviews. — For annual survey of New Mexico law relating to domestic relations, see 12 N.M.L. Rev. 325 (1982).

Annual Survey of New Mexico Family Law, see 17 N.M.L. Rev. 291 (1987).

For annual survey of domestic relations law in New Mexico, see 18 N.M.L. Rev. 371 (1988).

For article, "Children's Rights v. Parents' Rights: A Proposed Solution to the Custodial Relocation Conundrum," see 29 N.M.L. Rev. 245 (1999).

Am. Jur. 2d, A.L.R. and C.J.S. references. — Necessity of requiring presence in court of both parties in proceedings relating to custody or visitation of children, 15 A.L.R.4th 864.

Propriety of awarding joint custody of children, 17 A.L.R.4th 1013.

Religion as factor in child custody and visitation cases, 22 A.L.R.4th 971.

Postmajority disability as reviving parental duty to support child, 48 A.L.R.4th 919.

Parent's transsexuality as factor in award of custody of children, visitation rights, or termination of parental rights, 59 A.L.R.4th 1170.

State court's authority, in marital or child custody proceeding, to allocate federal income tax dependency exemption for child to noncustodial parent under § 152(e) of the Internal Revenue Code (26 USCS § 152(e)), 77 A.L.R.4th 786.

Child custody and visitation rights of person infected with AIDS, 86 A.L.R.4th 211.

Application of child-support guidelines to cases of joint-, split-, or similar shared-custody arrangements, 57 A.L.R.5th 389.