N.M. Stat. § 40-10A-201 (2026)

   (a) Except as otherwise provided in Section 204, a court of this state has jurisdiction
to make an initial child-custody determination only if:

       (1)   this state is the home state of the child on the date of the commencement
of the proceeding, or was the home state of the child within six months before the
commencement of the proceeding and the child is absent from this state but a parent or
person acting as a parent continues to live in this state;

        (2)    a court of another state does not have jurisdiction under paragraph (1) or
a court of the home state of the child has declined to exercise jurisdiction on the ground
that this state is the more appropriate forum under Section 207 or 208] and:

          (A) the child and the child's parents, or the child and at least one parent or a
person acting as a parent, have a significant connection with this state other than mere
physical presence; and

          (B) substantial evidence is available in this state concerning the child's care,
protection, training and personal relationships;

       (3)    all courts having jurisdiction under paragraph (1) or (2) have declined to
exercise jurisdiction on the ground that a court of this state is the more appropriate
forum to determine the custody of the child under Section 207 or 208; or

       (4)    no court of any other state would have jurisdiction under the criteria
specified in paragraph (1), (2) or (3).

   (b) Subsection (a) is the exclusive jurisdictional basis for making a child-custody
determination by a court of this state.

   (c) Physical presence of, or personal jurisdiction over, a party or a child is not
necessary or sufficient to make a child-custody determination.

History: Laws 2001, ch. 114, § 201.

                                     ANNOTATIONS

Home state. — Where the child continuously lived in New Mexico with the child's parent
from birth until the child was four months of age when the parent and the child moved to
Texas; the child and the parent lived in Texas for less than two weeks when the parent
returned to New Mexico and filed a child custody proceeding; the child was on New
Mexico medicaid; and the child's physician was in New Mexico, New Mexico was the
child's home state and the New Mexico court had jurisdiction even though the Texas
parent had filed a custody proceeding in Texas before the New Mexico proceeding was
filed. Malissa v. Matthew Wayne H., 2008-NMCA-128, 145 N.M. 22, 193 P.3d 569.
As defined in 40-10-3E NMSA 1978 (now 40-10A-102(7) NMSA 1978) and used in this
section, "home state" means the state in which the child resided for six consecutive
months immediately preceding the commencement of the current, not original,
proceedings. Trask v. Trask, 1986-NMCA-098, 104 N.M. 780, 727 P.2d 88.

Concurrent jurisdiction with tribal court. — In a divorce and custody dispute, where
the mother was a non-Indian; the father was an enrolled member of the tribe; the
couple’s children were enrolled members of the tribe; the couple spent most of their four
years of married life on the tribal lands; the mother took the children to her father’s
house on non-Indian-owned fee land within the exterior boundaries of the tribal lands;
the district court awarded the mother temporary custody of the children; the mother later
filed a divorce action in the district court; and the father subsequently filed a parallel
divorce action in tribal court, the district court had significant connections jurisdiction
that was concurrent with the jurisdiction of the tribal court over the child-custody dispute.
Garcia v. Gutierrez, 2009-NMSC-044, 147 N.M. 105, 217 P.3d 591, rev'g 2008-NMCA-
116, 144 N.M. 761, 192 P.3d 275.

Parental Kidnapping Prevention Act, 28 U.S.C. §1738A (2000) does not apply to
tribes and under the act, tribes are not bound to give full faith and credit to state court
judgments in state court cases and New Mexico is not bound to defer to tribal courts
under the act. Garcia v. Gutierrez, 2009-NMSC-044, 147 N.M. 105, 217 P.3d 591, rev'g
2008-NMCA-116, 144 N.M. 761, 192 P.3d 275.

Termination of parental rights. — A straight termination proceeding, not involving
custody, adoption, or other similar issues, does not fall within the Child Custody
Jurisdiction Act (now see the Uniform Child-Custody Jurisdiction and Enforcement Act).
In re Vernon R.V., 1999-NMCA-125, 128 N.M. 242, 991 P.2d 986.

Compliance required with only one of prerequisites in Subsection A. — The New
Mexico statute requires compliance with only one of four prerequisites in 40-10-4 NMSA
1978 (now see this section) to satisfy the jurisdictional requirement. Olsen v. Olsen,
1982-NMSC-112, 98 N.M. 644, 651 P.2d 1288; Serna v. Salazar, 1982-NMSC-117, 98
N.M. 648, 651 P.2d 1292.

Jurisdiction is mixed question of law and fact. — A determination of jurisdiction
under this section involves a mixed question of law and fact, and an evidentiary record
is necessary for a review of the factual claims in an appeal. Meier v. Davignon, 1987-
NMCA-030, 105 N.M. 567, 734 P.2d 807.

Assertion of custody rights through guardianship proceedings. — In New Mexico,
while a district court is invested with subject matter jurisdiction to grant a petition for
guardianship of a minor or to adjudicate custody disputes between parents and non-
parents involving children, except as provided in former 32-1-58 NMSA 1978, in the
Children's Code (now 32A-4-31 NMSA 1978), over objection of a parent, guardianship
proceedings are not the proper means to involuntarily terminate a parent's right to
custody of his or her children. In re Sabrina Mae D., 1992-NMCA-050, 114 N.M. 133,
835 P.2d 849, cert. denied, 113 N.M. 744, 832 P.2d 1223.

Jurisdiction found. — Mother's voluntary placement of her child with grandparents in
this state and allowing the child to remain in New Mexico for almost ten months prior to
seeking her return, provided a proper basis for the court's determination that the child
had a significant connection with this state so as to enable the court to exercise
jurisdiction over the child. In re Sabrina Mae D., 1992-NMCA-050, 114 N.M. 133, 835
P.2d 849, cert. denied, 113 N.M. 744, 832 P.2d 1223.

A New Mexico court had jurisdiction to modify a California order on custody since New
Mexico was the home state of the parents and children at the time of commencement of
the proceeding and since the California divorce decree court had retained jurisdiction
only over property and related issues, not custody issues. Nelson v. Nelson, 1996-
NMCA-015, 121 N.M. 243, 910 P.2d 319.

The New Mexico district court had jurisdiction over an action by a biological mother's
lesbian domestic partner for time sharing and custody of children because there were
significant connections between the mother, the children, and New Mexico, and there
was substantial evidence regarding the children's care, protection, training and
relationships. Barnae v. Barnae, 1997-NMCA-077, 123 N.M. 583, 943 P.2d 1036.

Jurisdiction not asserted. — Where the children resided in New Mexico for less than
one year at the time of the divorce, and there is no indication of any connections
between the children and the state other than the children's relationship to their father,
jurisdiction could not be asserted in "best interests" of children. Trask v. Trask, 1986-
NMCA-098, 104 N.M. 780, 727 P.2d 88.

Jurisdiction to make initial child custody determination. — In a domestic relations
case, where petitioner and respondent were in a domestic relationship and decided to
raise a child together, and where respondent was artificially inseminated by an
anonymous donor and gave birth to child, and where petitioner initiated an action in
district court to establish parentage and determine custody and timesharing with regard
to child when the domestic relationship began to fall apart, and where respondent filed
an objection to the district court’s jurisdiction over the case after respondent and child
left the state of New Mexico, the district court erred in declining jurisdiction, because it
was undisputed that child and respondent lived in New Mexico for at least six
consecutive months immediately before the commencement of a child custody
proceeding, and therefore at the time the petition was filed, New Mexico was child’s
home state and the district court had jurisdiction to make the initial child custody
determination. Tomlinson v. Weatherford, 2017-NMCA-055.

Venue. — A court which renders the initial decree in child custody and visitation
proceedings is the proper venue for subsequent modifications of the cutodial order.
Dugie v. Cameron, 1999-NMSC-002, 126 N.M. 433, 971 P.2d 390.
Law reviews. — Annual Survey of New Mexico Family Law, see 17 N.M.L. Rev. 291
(1987).

For note, "Domestic Relations - An Interpretation of the Parental Kidnapping Prevention
Act and the New Mexico Child Custody Jurisdiction Act; State ex rel. Dept. of Human
Servs. v. Avinger," see 17 N.M.L. Rev. 409 (1987).

For annual survey of civil procedure in New Mexico, see 18 N.M.L. Rev. 287 (1988).

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

Am. Jur. 2d, A.L.R. and C.J.S. references. — 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.

Significant connection jurisdiction of court under § 3(a)(2) of the Uniform Child Custody
Jurisdiction Act (UCCJA) and the Parental Kidnapping Prevention Act (PKPA), 28
USCS § 1738A(c)(2)(B), 5 A.L.R.5th 550.

Abandonment and emergency jurisdiction of court under § 3(a)(3) of the Uniform Child
Custody Juridiction Act (UCCJA) and the Parental Kidnapping Prevention Act (PKPA),
28 USCS § 1738A(c)(2)(C), 5 A.L.R.5th 788.

Home state jurisdiction of court under § 3(a)(1) of the Uniform Child Custody
Jurisdiction Act (UCCJA) or the Parental Kidnapping Prevention Act (PKPA), 28 USCS
§ 1738A(c)(2)(A), 6 A.L.R.5th 1.

Default jurisdiction of court under § 3(a)(4) of the Uniform Child Custody Jurisdiction Act
(UCCJA) or the Parental Kidnapping Prevention Act (PKPA), 28 USCS §
1738A(c)(2)(D), 6 A.L.R.5th 69.

Significant connection jurisdiction of court to modify foreign child custody decree under
§§ 3(a)(2) and 14(b) of the Uniform Child Custody Jurisdiction Act (UCCJA) and the
Parental Kidnapping Prevention Act (PICPA), 28 U.S.C.A. §§ 1738A(c)(2)(b) and
1738A(f)(1), 67 A.L.R.5th 1.

Home state jurisdiction of court to modify foreign child custody decree under §§ 3(a)(1)
and 14(a)(2) of Uniform Child Custody Jurisdiction Act (UCCJA) and Parental
Kidnapping Prevention Act (PKPA), 28 U.S.C.A. §§ 1738A(c)(2)(A) and 1738A(f)(1), 72
A.L.R.5th 249.

Declining jurisdiction to modify prior child custody decree under § 14(a)(1) of Uniform
Child Custody Jurisdiction Act (UCCJA) and Parental Kidnapping Prevention Act
(PKPA), 28 U.S.C.A. § 1738A(f)(2), 73 A.L.R.5th 185.
Abandonment jurisdiction of court under §§ 3(a)(3)(i) and 14(a) of Uniform Child
Custody Jurisdiction Act and Parental Kidnapping Prevention Act, 28 U.S.C.A. §§
1738A(c)(2)(C)(i) and 1738A(f), notwithstanding existence of prior valid custody decree
rendered by second state, 78 A.L.R.5th 465.

Emergency jurisdiction of court under §§ 3(a)(3)(ii) and 14(a) of Uniform Child Custody
Jurisdiction Act and Parental Kidnapping Prevention Act, 28 U.S.C.A. §§
1738A(c)(2)(C)(ii) and 1738A(f), to protect interests of child notwithstanding existence of
prior, valid custody decree rendered by another state, 80 A.L.R.5th 117.