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Does New Mexico Have Jurisdiction Over My Child Custody Case?

tug-of-war

Jurisdiction is a legal word that essentially means power.  No jurisdiction – no power.   New Mexico courts must have jurisdiction before determining issues such as custody, time-sharing, and child support for a child.

Generally speaking, a custody matter is started in N.M. when a parent files a Petition to Establish Paternity, Custody and time-sharing.  Before this Petition can be filed, one must first discern whether a N.M. court has jurisdiction over the parties and the child.

Jurisdiction is clear when both parents live in N.M., and the child was born in N.M.  Jurisdictional issues become more complicated when a child’s parents live in separate states, or when a child is born in one state and then subsequently moves to a different state.

In situations where a child is born in one state and then moves to another state, the “Home State of the Child” is given priority in determining which state may exercise jurisdiction over the underlying child custody dispute.  The Home State of a Child is the state where the child has lived with the parents, a parent, or a person acting as a parent, for at least six consecutive months before the custody case is opened.  In the case of a newborn, or a child less than six months old, the Home State is the state where the child has lived since birth.

Temporary absences are counted as part of the six month period.

As an example, N.M. is the Home State of the child at issue, when the child has lived in N.M. with a parent, or a person acting as a parent, for at least six consecutive months before the child custody proceeding is first opened.  For a child less than six months old, N.M. is considered the Home State if the child has lived in N.M. from birth with a parent or person acting as the parent.

In either scenario, the initial custody case could be opened in N.M., with the requisite Petition to Establish Paternity, Custody, Timesharing and Child Support.

The issue of jurisdiction becomes cloudy when a custody case is initially opened in N.M., with a resulting custody order surrounding issues such custody, timesharing, and child support.  After this custody order is entered by a N.M. court, the child and one of the parents subsequently relocates to another state (i.e. Second State).  In this situation, N.M. retains continuing, exclusive jurisdiction over the custody dispute, provided that either party to the initial custody case remains in N.M.

Let’s assume that a custody case is initially opened in N.M., with N.M. entering a custody order.  Sometime in the future the child and one parent moves to another state (Second State), and then lives in the Second State for six consecutive months, giving Second State Home State jurisdiction.  After the child has lived in Second State for six consecutive months, the parent either desires to modify N.M.’s existing custody order, or desires for Second State to adopt N.M.’s order as an order of its court, thereby granting Second State enforcement power over N.M.’s original order.

In this scenario the Second State could assert jurisdiction and modification power over the custody dispute provided that one of the following scenarios is present: (1) N.M. no longer has jurisdiction over the custody matter because neither party to the initial dispute still resides in N.M.; or (2) N.M. declines/relinquishes jurisdiction because it believes that the second state is a more appropriate forum.

As stated above, N.M. has the power to decline/relinquish jurisdiction if it determines that another state is a more appropriate forum to hear the child dispute.  N.M. courts consider and balance the following factors, when deciding whether to assert or relinquish jurisdiction:

  1. Has domestic violence taken place; if it’s likely to continue in the future, which state can provide the best protection for the parties and the child;
  2. How long has the other state been the child’s Home State;
  3. The distance between the court in NM and the state that would assume jurisdiction;
  4. The financial means of both parties involving travel;
  5. Prior agreements regarding the state that would assume jurisdiction;
  6. The location and nature of the evidence required to decide the custody matter, such as the child’s testimony;
  7. Each court’s ability to quickly and efficiently decide the custody issue; and
  8. Which state has a closer connection with the child, or with the child and one or more of the parties? This factor also considers which state is more familiar with the facts and issues at playing within the custody dispute.

If N.M. ultimately decides that the Second State is a more appropriate forum, it will then “stay” (i.e. pause) its proceedings until proceedings are started in the second state.

As you can see, there are a number of different situations where two states must interact and then ultimately decide which state will assert jurisdiction over the child at issue. We have also seen that there are a number of different factors that determine which state has jurisdiction over a custody dispute.  As a practical matter, the issue of which court will assert jurisdiction over a custody dispute is brought before both courts when one parent files a Motion requesting a UCCJEA teleconference.   A hearing is then held allowing judges from both court houses to communicate through a UCCJEA teleconference.  During this UCCJEA teleconference, judges from both states discuss the factors listed above to reach an ultimate decision on which court has jurisdiction over the custody dispute at hand.

Once a decision is made, the parties can then move forward with the underlying custody dispute in the state that has asserted jurisdiction over the matter.