N.M. Stat. » N.M. Stat. / Chapter 32A / Article 4
New Mexico Statutes

N.M. Stat. § 32A-4-18 (2026)

Custody hearings; time limitations; notice; probable

✓ current as of May 2026
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cause.
    A. When a child alleged to be neglected or abused has been placed in the legal
custody of the department or the department has petitioned the court for temporary
custody, a custody hearing shall be held within ten days from the date the petition is
filed to determine if the child should remain in or be placed in the department's custody
pending adjudication. Upon written request of the respondent, the hearing may be held
earlier, but in no event shall the hearing be held sooner than two days after the date the
petition was filed.

   B. The parent, guardian or custodian of the child alleged to be abused or neglected
shall be given reasonable notice of the time and place of the custody hearing.

    C. At the custody hearing, the court shall return legal custody of the child to the
child's parent, guardian or custodian unless probable cause exists to believe that:

      (1)     the child is suffering from an illness or injury, and the parent, guardian or
custodian is not providing adequate care for the child;

       (2)   the child is in immediate danger from the child's surroundings and removal
from those surroundings is necessary for the child's safety or well-being;

      (3)   the child will be subject to injury by others if not placed in the custody of
the department;

      (4)    there has been an abandonment of the child by the child's parent,
guardian or custodian; or

      (5)    the parent, guardian or custodian is not able or willing to provide adequate
supervision and care for the child.
   D. At the conclusion of the custody hearing, if the court determines that probable
cause exists pursuant to Subsection C of this section, the court may:

        (1)    return legal custody of the child to the child's parent, guardian or custodian
upon such conditions as will reasonably ensure the safety and well-being of the child,
including protective supervision or maintenance at home by the department or
participation in programs or services aimed at addressing the underlying causative
factors that impact the safety or well-being of the child; or

       (2)    award legal custody of the child to the department.

    E. Reasonable efforts shall be made to preserve and reunify the family, with the
paramount concern being the child's health and safety. When the department
determines that the home of an adult relative of the child meets all relevant child
protection and licensing standards and placement in the home would be in the best
interest of the child, the department shall give a preference to placement of the child in
that home. The department shall make reasonable efforts to conduct home studies on
appropriate relatives who express an interest in providing placement for the child.

   F. At the conclusion of the custody hearing, if the court determines that probable
cause does not exist pursuant to Subsection C of this section, the court shall:

      (1)   retain jurisdiction and, unless the court permits otherwise, order that the
respondent and child remain in the jurisdiction of the court pending the adjudication;

       (2)    return legal custody of the child to the child's parent, guardian or custodian
with conditions to provide for the safety and well-being of the child; and

      (3)   order that the child's parent, guardian or custodian allow the child
necessary contact with the child's guardian ad litem or attorney.

   G. At the conclusion of the custody hearing, the court may order the respondent or
the child alleged to be neglected or abused, or both, to undergo appropriate diagnostic
examinations or evaluations. If the court determines that probable cause does not exist,
the court may order the respondent or the child alleged to be neglected or abused, or
both, to undergo appropriate diagnostic examinations or evaluations as necessary to
protect the child's best interests, based upon the allegations in the petition and the
evidence presented at the custody hearing. Copies of any diagnostic or evaluation
reports ordered by the court shall be provided to the parties at least five days before the
adjudicatory hearing is scheduled. The reports shall not be sent to the court.

   H. The Rules of Evidence shall not apply to custody hearings.

   I. Notwithstanding any other provision of law, a party aggrieved by an order
entered pursuant to this section shall be permitted to file an immediate appeal as a
matter of right. If the order appealed from grants the legal custody of the child to or
withholds it from one or more of the parties to the appeal, the appeal shall be expedited
and shall be heard at the earliest practicable time. While an appeal pursuant to this
section is pending, the court shall have jurisdiction to take further action in the case
pursuant to Subsection B of Section 32A-1-17 NMSA 1978.

History: 1978 Comp., § 32A-4-18, enacted by Laws 1993, ch. 77, § 112; 1999, ch. 77,
§ 5; 2005, ch. 189, § 45; 2009, ch. 239, § 38; 2014, ch. 69, § 1; 2016, ch. 54, § 4; 2019,
ch. 137, § 3; 2022, ch. 41, § 49.

                                    ANNOTATIONS

Cross references. — For the applicability of the Rules of Evidence, see Rule 11-1101
NMRA.

For the federal Indian Child Welfare Act of 1978, see 25 U.S.C. § 1901, et seq.

The 2022 amendment, effective July 1, 2022, removed a provision related to Indian
children which is now covered by the Indian Family Protection Act; and deleted
Subsection J.

Applicability. — Laws 2022, ch. 41, § 73 provided that the provisions of Laws 2022,
ch. 41 apply to all cases filed on or after July 1, 2022.

The 2019 amendment, effective July 1, 2020, authorized the district court, upon a
finding that probable cause exists to believe that abuse or neglect has occurred, to
order participation in programs or services aimed at addressing the underlying causes
of the abuse or neglect; and in Subsection D, Paragraph D(1), after "supervision",
added "or maintenance at home", and after "the department", added "or participation in
programs or services aimed at addressing the underlying causative factors that impact
the safety or well-being of the child".

The 2016 amendment, effective May 18, 2016, established a preference for placement
of a child in the home of an adult relative; in Subsection E, after the first sentence,
added the remainder of the subsection.

The 2014 amendment, effective July 1, 2014, provided for immediate appeals as of
right from a custody order; and added Subsection I.

The 2009 amendment, effective July 1, 2009, added Subsection F; in Subsection G,
added the second sentence; and added Subsection I.

The 2005 amendment, effective June 17, 2005, in Subsection A, changed "taken into
custody" to "placed in the legal custody"; in Subsection C, changed "release of the
child" to "return legal custody of the child"; and in Subsection D, provided that if the
court determines that probable cause exists pursuant to Subsection C, the court may
return legal custody of the child to his parent, guardian or custodian upon conditions
that include protective supervision by the department or award legal custody to the
department and deletes the former provision concerning visitation rights.

The 1999 amendment, effective July 1, 1999, added the undesignated paragraph
following Subsection D(2).
Notes of Decisions
Cited in 33 cases (5 in the last 5 years), 1997–2024 · leading case: In Re Esther, 248 P.3d 863 (N.M. 2011).
Sort: Relevance Newest Treatment
In Re Esther, 248 P.3d 863 (N.M. 2011). · cites it 13× “Section 32A-4-18's ten-day time frame does not allow notice to reach the tribe and parent at least ten days and up to thirty days before the custody hearing as required by § 1912(a).”
State Ex Rel. Child., Youth & Families Dep't v. Marlene C., 2011 NMSC 5 (N.M. 2011). · cites it 11× “Section 32A-4-18’s ten-day time frame does not allow notice to reach the tribe and parent at least ten days and up to thirty days before the custody hearing as required by § 1912(a).”
State ex rel. Child., Youth & Families Dep't v. Browind C., 2007 NMCA 023 (N.M. Ct. App. 2006). · cites it 7× “See § 32A-4-18. The court ordered that legal custody remain with CYFD.”
In Re Guardianship of Ashleigh R., 55 P.3d 984 (N.M. Ct. App. 2002). · cites it 3× “See § 32A-4-18(A); NMSA 1978, § 32A-4-19(A) (1997).”
State ex rel. Chidren, Youth & Families Dep't v. Djamila B., 2015 NMSC 003 (N.M. Ct. App. 2014). · cites it 4× “Section 32A-4-18(A), (C). The children’s court shall return legal custody to the child’s parent, guardian, or custodian unless it finds probable cause for abuse or neglect.”
State Ex Rel. Child., Youth & Families Dep't v. Maria C., 94 P.3d 796 (N.M. Ct. App. 2004). “§ 32A-4-18(A). The district court has sixty days from service to hold an adjudicatory hearing, after which, it must enter a disposition on the allegations, along with specific findings and approval of a treatment plan.”
Valdez v. Roybal, 186 F. Supp. 3d 1197 (D.N.M. 2016). “] § 32A-4-18; (2) an adjudicatory hearing, see § 32A-4-19; (3) a dispositional hearing which results in extensive factual findings and a determination of the level of state services necessary for the child, see § 32A-4-22; (4) periodic reviews of the child’s welfare following…”
State Ex Rel. Child., Youth & Families Dep't v. A.H., 947 P.2d 1064 (N.M. Ct. App. 1997). · cites it 2× “See NMSA 1978, § 32A-4-18(D)(2) (1993). NMSA 1978, Section 32A-1-3(A) (1993) requires the court to not only protect the children but also to “preserve the unity of the family whenever possible.”
Joseph A. ex rel. Corrine Wolfe v. Ingram, 275 F.3d 1253 (10th Cir. 2002). “ide caseworkers, supervisors, and adoption specialists with specific training at the time they are hired and periodically during their service in the Department; • Conduct an individual assessment conference to develop an assessment plan for each child prior to appearing at an…”
State Ex Rel. Child., Youth & Families Dep't v. Marlene C., 2009 NMCA 58 (N.M. Ct. App. 2009). “See § 32A-4-18(A). The next proceeding is adjudication, at which the district court considers the merits of the abuse and neglect petition.”
State ex rel. Child., Youth & Families Dep't v. Maurice H., 2014 NMSC 034 (N.M. 2014). · cites it 2× “{10} In these beginning phases, Father was never given notice of the proceedings, as required by Section 32A-4-18(B), so he did not appear at the initial hearings.”
State of Nm Ex Rel. Cyfd v. Marlene C., 212 P.3d 1142 (N.M. Ct. App. 2009). “See § 32A-4-18(A). The next proceeding is adjudication, at which the district court considers the merits of the abuse and neglect petition.”
Show all 33 citing cases →
— N.M. Stat. § 32A-4-18(A) — 20 cases
In Re Esther, 248 P.3d 863 (N.M. 2011). “Section 32A-4-18's ten-day time frame does not allow notice to reach the tribe and parent at least ten days and up to thirty days before the custody hearing as required by § 1912(a).”
State Ex Rel. Child., Youth & Families Dep't v. Marlene C., 2011 NMSC 5 (N.M. 2011). “Section 32A-4-18’s ten-day time frame does not allow notice to reach the tribe and parent at least ten days and up to thirty days before the custody hearing as required by § 1912(a).”
State ex rel. Child., Youth & Families Dep't v. Browind C., 2007 NMCA 023 (N.M. Ct. App. 2006). “See § 32A-4-18. The court ordered that legal custody remain with CYFD.”
State Ex Rel. Child., Youth & Families Dep't v. Maria C., 94 P.3d 796 (N.M. Ct. App. 2004). “§ 32A-4-18(A). The district court has sixty days from service to hold an adjudicatory hearing, after which, it must enter a disposition on the allegations, along with specific findings and approval of a treatment plan.”
State ex rel. Chidren, Youth & Families Dep't v. Djamila B., 2015 NMSC 003 (N.M. Ct. App. 2014). “Section 32A-4-18(A), (C). The children’s court shall return legal custody to the child’s parent, guardian, or custodian unless it finds probable cause for abuse or neglect.”
— N.M. Stat. § 32A-4-18(B) — 8 cases
In Re Esther, 248 P.3d 863 (N.M. 2011). “Section 32A-4-18's ten-day time frame does not allow notice to reach the tribe and parent at least ten days and up to thirty days before the custody hearing as required by § 1912(a).”
State ex rel. Child., Youth & Families Dep't v. Browind C., 2007 NMCA 023 (N.M. Ct. App. 2006). “See § 32A-4-18. The court ordered that legal custody remain with CYFD.”
State ex rel. Child., Youth & Families Dep't v. Maurice H., 2014 NMSC 034 (N.M. 2014). “{10} In these beginning phases, Father was never given notice of the proceedings, as required by Section 32A-4-18(B), so he did not appear at the initial hearings.”
In the Matter of Grace H., 2014 NMSC 34 (N.M. 2014).
In the Matter of Grace H. (N.M. 2014).
— N.M. Stat. § 32A-4-18(C) — 6 cases
In Re Guardianship of Ashleigh R., 55 P.3d 984 (N.M. Ct. App. 2002). “See § 32A-4-18(A); NMSA 1978, § 32A-4-19(A) (1997).”
State ex rel. Chidren, Youth & Families Dep't v. Djamila B., 2015 NMSC 003 (N.M. Ct. App. 2014). “Section 32A-4-18(A), (C). The children’s court shall return legal custody to the child’s parent, guardian, or custodian unless it finds probable cause for abuse or neglect.”
State Ex Rel. CYFD v. Tia M. (N.M. Ct. App. 2020).
Lowther v. Child. Youth & Families Dep't (D.N.M. 2020).
State Ex Rel. CYFD v. Ray B. (N.M. Ct. App. 2024).
— N.M. Stat. § 32A-4-18(D)(2) — 1 case
State Ex Rel. Child., Youth & Families Dep't v. A.H., 947 P.2d 1064 (N.M. Ct. App. 1997). “See NMSA 1978, § 32A-4-18(D)(2) (1993). NMSA 1978, Section 32A-1-3(A) (1993) requires the court to not only protect the children but also to “preserve the unity of the family whenever possible.”
— N.M. Stat. § 32A-4-18(E) — 2 cases
State Ex Rel. CYFD v. Ruben B. (N.M. Ct. App. 2021).
State ex rel. CYFD v. Rachel M.-D. (N.M. Ct. App. 2022).
— N.M. Stat. § 32A-4-18(H) — 2 cases
In Re Esther, 248 P.3d 863 (N.M. 2011). “Section 32A-4-18's ten-day time frame does not allow notice to reach the tribe and parent at least ten days and up to thirty days before the custody hearing as required by § 1912(a).”
State Ex Rel. Child., Youth & Families Dep't v. Marlene C., 2011 NMSC 5 (N.M. 2011). “Section 32A-4-18’s ten-day time frame does not allow notice to reach the tribe and parent at least ten days and up to thirty days before the custody hearing as required by § 1912(a).”
— N.M. Stat. § 32A-4-18(I) — 2 cases
State ex rel. CYFD v. Tanisha G. (N.M. Ct. App. 2019).
State Ex Rel. CYFD v. Tia M. (N.M. Ct. App. 2020).
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