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New Mexico law says there is an assumption (“presumption”) that joint custody between the parents is in the child’s best interest when a court is making a ruling about custody for the first time.1
If the parents are unwilling or unable to have custody, then the judge may grant custody to a non-parent. When custody is granted to a non-parent, it is called “kinship guardianship.” The judge can grant kinship guardianship to:
- an adult who has been living with and caring for the child, if that adult is:
- a relative of the child;
- a godparent;
- a member of the child’s tribe or clan; or
- an adult with whom the child has a significant bond;
- a caregiver chosen by a parent in writing, as long as the writing shows that the parent understands:
- the purpose and effect of the guardianship;
- that the parent has the right to be served with any petitions that are filed relating to the child; and
- that the parent may appear in court to challenge the guardianship;
- a caregiver with whom the child has been placed by the Children, Youth and Families Department; or
- if the child is 14 years old or older, a caregiver who:
- is 21 years old or older; and
- has been nominated by the child.2
1 N.M. Stat. § 40-4-9.1(A)
2 N.M. Stat. §§ 40-10B-3; 40-10B-5(A)
Can an abusive parent get custody or visitation?
A parent who committed violence can get custody and/or visitation as long as certain protections are put in place.
One of the factors that a judge has to consider in New Mexico when deciding custody or visitation is whether the parent has committed abuse against the child, the other parent, or another household member. This decision about whether abuse was committed can be made by the judge in your custody case or by a judge in another case, such as a protection order case. In cases where the judge finds that abuse was committed, the custody or visitation order must clearly protect the abused child, other parent, or household member. However, it doesn’t necessarily mean that a parent who committed violence will be denied custody or visitation altogether.1
1 N.M. Stat. § 40-4-9.1(B)(9)
If my child was conceived from rape, can the offender’s parental rights be terminated?
The parental rights of a rapist can be terminated at the request of the victim if:
- the abuser was convicted of rape (“criminal sexual penetration”); and
- the judge determines by clear and convincing evidence that the child is the result of that rape.1
If the child is an American Indian child, aside from proving the reason to terminate the parental rights, the requirements of the Indian Child Welfare Act of 1978 have to be met.2
1 N.M. Stat. § 40-16-1(A)
2 N.M. Stat. § 40-16-1(B)
Can grandparents get visitation?
New Mexico has a “Grandparent’s Visitation Privileges” law that allows a grandparent to petition for visitation in certain circumstances. Under this law, a grandparent can petition for visitation if any of the following are true:
- the child’s parents are divorced and visitation would not interfere with the child’s education or the parent’s visitation;
- one or both of the child’s parents are deceased;
- the child is less than six years of age and lived with the grandparent for at least three months;
- the child is older than six years of age and lived with the grandparent for at least six months; or
- the child has been adopted by a relative, a person chosen in a deceased parent’s will, or a godparent.1
When a grandparent files for visitation, a judge is allowed to order mediation to see if the parties might be able to work out an agreement for grandparent visitation.2
If an agreement is not worked out through mediation, the judge can grant visitation if the s/he decides that visitation with the grandparent is in the child’s best interest.3 To decide if the grandparent should have visitation rights, the judge has to asses:
- the best interests of the child;
- the prior interaction between the child and the grandparent;
- the past and present relationship between the parents and the grandparent;
- any visitation arrangements that were in place before the petition was filed;
- the effect the visitation will have on the child;
- whether the grandparent has any prior convictions for abuse or neglect; and
- if the grandparent has been a full-time caretaker for the child for a significant period.4
If the judge decides visitation is not in the child’s best interest and denies the request for visitation, s/he might still order some other reasonable form of contact like, mail, telephone, or some other means.3
1 N.M. Stat. § 40-9-2(A)-(E)
2 N.M. Stat. § 40-9-2(H)
3 N.M. Stat. § 40-9-2(I)
4 N.M. Stat. § 40-9-2(G)
