2023 New Mexico Statutes
Chapter 40 - Domestic Affairs
Article 4 - Dissolution of Marriage
Section 40-4-9 - Standards for the determination of child custody; hearing.

Universal Citation: NM Stat § 40-4-9 (2023)

A. In any case in which a judgment or decree will be entered awarding the custody of a minor, the district court shall, if the minor is under the age of fourteen, determine custody in accordance with the best interests of the child. The court shall consider all relevant factors including, but not limited to:

(1) the wishes of the child's parent or parents as to his custody;

(2) the wishes of the child as to his custodian;

(3) the interaction and interrelationship of the child with his parents, his siblings and any other person who may significantly affect the child's best interest;

(4) the child's adjustment to his home, school and community; and

(5) the mental and physical health of all individuals involved.

B. If the minor is fourteen years of age or older, the court shall consider the desires of the minor as to with whom he wishes to live before awarding custody of such minor.

C. Whenever testimony is taken from the minor concerning his choice of custodian, the court shall hold a private hearing in his chambers. The judge shall have a court reporter in his chambers who shall transcribe the hearing; however, the court reporter shall not file a transcript unless an appeal is taken.

History: 1953 Comp., § 22-7-7.1, enacted by Laws 1977, ch. 172, § 1.


Cross references. — For notes regarding determination of child custody, see "V. GRANTING AND MODIFYING CHILD CUSTODY AND SUPPORT." in notes following 40-4-7 NMSA 1978.

For provisions of the Uniform Child-Custody Jurisdiction and Enforcement Act, see 40-10A-101 to 40-10A-403 NMSA 1978.

Modifying custody. — The rule articulated in Schuermann v. Schuermann, 1980-NMSC-027, 94 N.M. 81, 607 P.2d 619, reflects an underlying policy favoring the continuation of child custody judgments in order to promote stability and continuity in the child's custodial and environmental relationships, absent a showing of a material change of conditions affecting the interests of the child. Seeley v. Jaramillo, 1986-NMCA-100, 104 N.M. 783, 727 P.2d 91.

Inapplicability. — The custody modification factors described in 40-4-9A NMSA 1978 are to be applied in the context of divorce proceedings not child abuse and neglect proceedings. State ex rel. Children, Youth and Families Dep't v. Lisa A., 2008-NMCA-087, 144 N.M. 324, 187 P.3d 189.

Indian children. — The Indian Child Welfare Act, 25 U.S.C. §1901, does not apply in divorce proceedings when the custody of children remain with the biological parents. Cherino v. Cherino, 2008-NMCA-024, 143 N.M. 452, 176 P.3d 1184.

Discretion of court to hold in-camera hearing. — The holding of an in-camera hearing under Subsection C is a matter entrusted to the sound discretion of the trial court. Normand v. Ray, 1990-NMSC-006, 109 N.M. 403, 785 P.2d 743.

Trial court's denial of an in-camera hearing to determine a child's preferences as to where she wanted to live was not error, where the court was otherwise adequately apprised of the child's wishes and there was evidence in the record otherwise supporting the ruling of the court. Jeantete v. Jeantete, 1990-NMCA-138, 111 N.M. 417, 806 P.2d 66.

Older child's preference not controlling. — Although the provisions of this section direct that the trial court shall consider the desires of a minor over 14 years of age concerning custody, under the statute, the trial court is not conclusively bound to award custody according to such preference. Instead, the controlling inquiry of the court in any child custody dispute involves a balancing of all relevant factors and determining the best interests of the child. Normand v. Ray, 1990-NMSC-006, 109 N.M. 403, 785 P.2d 743.

Best interest of child controlling. — Trial court's decision to change primary physical custody of the parties' son from mother to father, was reasonable, where the child had reached the age at which the court was statutorily required to consider his desires, and the court clinic's advisory consultation report approved the change as being in the best interests of the child. Clayton v. Trotter, 1990-NMCA-078, 110 N.M. 369, 796 P.2d 262.

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.

Effect of custodial parent's subsequent incestuous marriage. — New Mexico's public policy against incest did not preclude the district court from awarding a mother primary physical custody of her children, after taking into account her plans to marry her uncle, where that choice was in the best interests of the children, and mother and uncle intended to reside in California. Leszinske v. Poole, 1990-NMCA-088, 110 N.M. 663, 798 P.2d 1049, cert. denied, 110 N.M. 533, 797 P.2d 983.

Sexual orientation not sufficient to deny visitation. — Sexual orientation, standing alone, is not a permissible basis for the denial of shared custody or visitation. Evidence of sexual and associational conduct may be relevant to determining the best interests of the child, but is not, by itself, sufficient to make that determination. A.C. v. C.B., 1992-NMCA-012, 113 N.M. 581, 829 P.2d 660, cert. denied, 113 N.M. 449, 827 P.2d 837.

Modification of award. — Because a final order was not entered until the custody-review hearing, a change in circumstances was not necessary to modify the court's joint custody award. Rather, the court was required to consider the standards for custody under this section and to comply with the requirements of Rule 1-052(B) NMRA. Fitzsimmons v. Fitzsimmons, 1986-NMCA-029, 104 N.M. 420, 722 P.2d 671, cert. quashed, 104 N.M. 378, 721 P.2d 1309.

Presumption that child born in wedlock is legitimate is not conclusive. — The presumption may be rebutted where the evidence is clear, cogent and convincing that the husband is not the father of the child. Torres v. Gonzales, 1969-NMSC-020, 80 N.M. 35, 450 P.2d 921.

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.

Father awarded physical custody. — 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.

Order reversed for lack of evidence. — Trial court's order changing custody, apparently based on an allegation that the mother did not send the children to the father for a Christmas visit, was reversed, in the absence of the existence of any evidence in the record and the adoption of findings concerning the best interests and welfare of the children. Campbell v. Alpers, 1990-NMCA-037, 110 N.M. 21, 791 P.2d 472.

Law reviews. — For note, "Domestic Relations - Racial Factors in Change of Custody Determinations: Palmore v. Sidoti," see 15 N.M.L. Rev. 511 (1985).

For note, "Family Law - Custody Dispute between Biological Mother and Nonbiological, Nonadoptive Party: A.C. v. C.B.," see 23 N.M.L. Rev. 331 (1993).

For comment, "Custody Standards in New Mexico: Between Third Parties and Biological Parents, What Is the Trend?" see 27 N.M.L. Rev. 547 (1997).

Am. Jur. 2d, A.L.R. and C.J.S. references. — 42 Am. Jur. 2d Infants §§ 28 to 57; 59 Am. Jur. 2d Parent and Child §§ 23 to 36.

Jurisdiction to award custody of child having legal domicil in another state, 4 A.L.R.2d 7.

Jurisdiction to award custody of child domiciled in state but physically outside of it, 9 A.L.R.2d 434.

Nonresidence as affecting one's right to custody of child, 15 A.L.R.2d 432.

Power of court, on its own motion, to modify provisions of divorce decree as to custody of children, upon application for other relief, 16 A.L.R.2d 664.

Alienation of child's affections as affecting custody award, 32 A.L.R.2d 1005.

Consideration of investigation by welfare agency or the like in modifying award as between parents of custody of children, 35 A.L.R.2d 629.

Education: purview of charge for "college education," 36 A.L.R.2d 1323.

Right to custody of child as affected by death of custodian appointed by divorce decree, 39 A.L.R.2d 258.

Court's power as to custody and visitation of children in marriage annulment proceedings, 63 A.L.R.2d 1008.

Opening or modification of divorce decree as to custody or support of child not provided for in the decree, 71 A.L.R.2d 1370.

Court's power to modify child custody order as affected by agreement which was incorporated in divorce decree, 73 A.L.R.2d 1444.

Mental health of contesting parent as factor in award of child custody, 74 A.L.R.2d 1073.

Violation of custody provision of agreement or decree as affecting child support payment provision, and vice versa, 95 A.L.R.2d 118.

Propriety of court conducting private interview with child in determining custody, 99 A.L.R.2d 954.

Child's wishes as factor in awarding custody, 4 A.L.R.3d 1396.

Court's power in habeas corpus proceedings relating to custody of child to adjudicate questions as to child's support, 17 A.L.R.3d 764.

Award of custody of child where contest is between child's mother and grandparent, 29 A.L.R.3d 366.

Award of custody of child where contest is between child's parents and grandparents, 31 A.L.R.3d 1187.

Divorce: necessity of notice of application for temporary custody of child, 31 A.L.R.3d 1378.

Noncustodial parent's rights as respects education of child, 36 A.L.R.3d 1093.

Physical abuse of child by parent as ground for termination of parent's right to child, 53 A.L.R.3d 605.

Sexual abuse of child by parent as ground for termination of parent's right to child, 58 A.L.R.3d 1074.

Right, in custody proceedings, to cross-examine investigating officer whose report is used by the court in its decision, 59 A.L.R.3d 1337.

Modern status of maternal preference rule or presumption in child custody cases, 70 A.L.R.3d 262.

Effect in subsequent proceedings of paternity findings or implications in divorce decree or in support or custody order made incidental, 78 A.L.R.3d 846.

Parent's involuntary confinement, or failure to care for child as result thereof, as evincing neglect, unfitness, or the like in dependency or divestiture proceeding, 79 A.L.R.3d 417.

Validity, construction, and application of Uniform Child Custody Jurisdiction Act, 96 A.L.R.3d 968, 78 A.L.R.4th 1028, 16 A.L.R.5th 650, 20 A.L.R.5th 700, 21 A.L.R.5th 396, 40 A.L.R.5th 227.

Right to require psychiatric or mental examination for party seeking to obtain or retain custody of child, 99 A.L.R.3d 268.

Custodial parent's sexual relations with third person as justifying modification of child custody order, 100 A.L.R.3d 625.

Parent's physical disability or handicap as factor in custody award or proceedings, 3 A.L.R.4th 1044.

Initial award or denial of child custody to homosexual or lesbian parent, 6 A.L.R.4th 1297.

Award of custody of child where contest is between natural parent and stepparent, 10 A.L.R.4th 767.

Race as factor in custody award or proceedings, 10 A.L.R.4th 796.

Desire of child as to geographical location of residence or domicile as factor in awarding custody or terminating parental rights, 10 A.L.R.4th 827.

Propriety of awarding custody of child to parent residing or intending to reside in foreign country, 20 A.L.R.4th 677.

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

Effect of remarriage of spouses to each other on child custody and support provisions of prior divorce decree, 26 A.L.R.4th 325.

Interference by custodian of child with noncustodial parent's visitation rights as ground for change of custody, 28 A.L.R.4th 9.

Parent's or relative's rights of visitation of adult against latter's wishes, 40 A.L.R.4th 846.

Primary caretaker role of respective parents as factor in awarding custody of child, 41 A.L.R.4th 1129.

Attorneys' fees awards in parent-nonparent child custody case, 45 A.L.R.4th 212.

Right to jury trial in state court divorce proceedings, 56 A.L.R.4th 955.

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

Mother's status as "working mother" as factor in awarding child custody, 62 A.L.R.4th 259.

Withholding visitation rights for failure to make alimony or support payments, 65 A.L.R.4th 1155.

Child custody: separating children by custody awards to different parents - post-1975 cases, 67 A.L.R.4th 354.

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.

Authority of court, upon entering default judgment, to make orders for child custody or support which were not specifically requested in pleadings of prevailing party, 5 A.L.R.5th 863.

Continuity of residence as factor in contest between parent and nonparent for custody of child who has been residing with nonparent - modern status, 15 A.L.R.5th 692.

Parties' misconduct as ground for declining jurisdiction under § 8 of the Uniform Child Custody Jurisdiction Act (UCCJA), 16 A.L.R.5th 650.

Age of parent as factor in awarding custody, 34 A.L.R.5th 57.

Recognition and enforcement of out-of-state custody decree under § 13 of the Uniform Child Custody Jurisdiction Act (UCCJA) or the Parental Kidnapping Prevention Act (PKPA), 28 USCS § 1738A(a), 40 A.L.R.5th 227.

Construction and effect of statutes mandating consideration of, or creating presumptions regarding, domestic violence in awarding custody of children, 51 A.L.R.5th 241.

Mental health of contesting parent as factor in award of child custody, 53 A.L.R.5th 375.

Initial award or denial of child custody to homosexual or lesbian parent, 62 A.L.R.5th 591.

Custodial parent's homosexual or lesbian relationship with third person as justifying modification of child custody order, 65 A.L.R.5th 591.

Custodial parent's relocation as grounds for change of custody, 70 A.L.R.5th 377.

Child custody and visitation rights arising from same-sex relationship, 80 A.L.R.5th 1.

Religion as factor in visitation cases, 95 A.L.R.5th 533.

Restrictions on parent's child visitation rights based on parent's sexual conduct, 99 A.L.R.5th 475.

Religion as factor in child custody cases, 124 A.L.R. 5th 203.

27C C.J.S. Divorce §§ 620 to 631, 639.

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