N.M. Stat. § 40-4-9.1

plan.
    A. There shall be a presumption that joint custody is in the best interests of a child
in an initial custody determination. An award of joint custody does not imply an equal
division of financial responsibility for the child. Joint custody shall not be awarded as a
substitute for an existing custody arrangement unless there has been a substantial and
material change in circumstances since the entry of the prior custody order or decree,
which change affects the welfare of the child such that joint custody is presently in the
best interests of the child. With respect to any proceeding in which it is proposed that
joint custody be terminated, the court shall not terminate joint custody unless there has
been a substantial and material change in circumstances affecting the welfare of the
child, since entry of the joint custody order, such that joint custody is no longer in the
best interests of the child.
   B. In determining whether a joint custody order is in the best interests of the child, in
addition to the factors provided in Section 40-4-9 NMSA 1978, the court shall consider
the following factors:

       (1)    whether the child has established a close relationship with each parent;

       (2)   whether each parent is capable of providing adequate care for the child
throughout each period of responsibility, including arranging for the child's care by
others as needed;

       (3)    whether each parent is willing to accept all responsibilities of parenting,
including a willingness to accept care of the child at specified times and to relinquish
care to the other parent at specified times;

        (4)     whether the child can best maintain and strengthen a relationship with
both parents through predictable, frequent contact and whether the child's development
will profit from such involvement and influence from both parents;

        (5)    whether each parent is able to allow the other to provide care without
intrusion, that is, to respect the other's parental rights and responsibilities and right to
privacy;

       (6)     the suitability of a parenting plan for the implementation of joint custody,
preferably, although not necessarily, one arrived at through parental agreement;

       (7)    geographic distance between the parents' residences;

       (8)   willingness or ability of the parents to communicate, cooperate or agree on
issues regarding the child's needs; and

        (9)    whether a judicial adjudication has been made in a prior or the present
proceeding that either parent or other person seeking custody has engaged in one or
more acts of domestic abuse against the child, a parent of the child or other household
member. If a determination is made that domestic abuse has occurred, the court shall
set forth findings that the custody or visitation ordered by the court adequately protects
the child, the abused parent or other household member.

   C. In any proceeding in which the custody of a child is at issue, the court shall not
prefer one parent as a custodian solely because of gender.

   D. In any case in which the parents agree to a form of custody, the court should
award custody consistent with the agreement unless the court determines that such
agreement is not in the best interests of the child.

   E. In making an order of joint custody, the court may specify the circumstances, if
any, under which the consent of both legal custodians is required to be obtained in
order to exercise legal control of the child and the consequences of the failure to obtain
mutual consent.

   F. When joint custody is awarded, the court shall approve a parenting plan for the
implementation of the prospective custody arrangement prior to the award of joint
custody. The parenting plan shall include a division of a child's time and care into
periods of responsibility for each parent. It may also include:

       (1)    statements regarding the child's religion, education, child care,
recreational activities and medical and dental care;

       (2)    designation of specific decision-making responsibilities;

        (3)  methods of communicating information about the child, transporting the
child, exchanging care for the child and maintaining telephone and mail contact
between parent and child;

       (4)    procedures for future decision making, including procedures for dispute
resolution; and

      (5)      other statements regarding the welfare of the child or designed to clarify
and facilitate parenting under joint custody arrangements.

    In a case where joint custody is not agreed to or necessary aspects of the parenting
plan are contested, the parties shall each submit parenting plans. The court may accept
the plan proposed by either party or it may combine or revise these plans as it deems
necessary in the child's best interests. The time of filing of parenting plans shall be set
by local rule. A plan adopted by the court shall be entered as an order of the court.

   G. Where custody is contested, the court shall refer that issue to mediation if
feasible. The court may also use auxiliary services such as professional evaluation by
application of Rule 706 [Rule 11-706 NMRA] of the New Mexico Rules of Evidence or
Rule 53 [Rule 1-053 NMRA] of the Rules of Civil Procedure for the District Courts.

   H. Notwithstanding any other provisions of law, access to records and information
pertaining to a minor child, including medical, dental and school records, shall not be
denied to a parent because that parent is not the child's physical custodial parent or
because that parent is not a joint custodial parent.

    I. Whenever a request for joint custody is granted or denied, the court shall state in
its decision its basis for granting or denying the request for joint custody. A statement
that joint custody is or is not in the best interests of the child is not sufficient to meet the
requirements of this subsection.

   J. An award of joint custody means that:
       (1)      each parent shall have significant, well-defined periods of responsibility for
the child;

       (2)     each parent shall have, and be allowed and expected to carry out,
responsibility for the child's financial, physical, emotional and developmental needs
during that parent's periods of responsibility;

       (3)    the parents shall consult with each other on major decisions involving the
child before implementing those decisions; that is, neither parent shall make a decision
or take an action which results in a major change in a child's life until the matter has
been discussed with the other parent and the parents agree. If the parents, after
discussion, cannot agree and if one parent wishes to effect a major change while the
other does not wish the major change to occur, then no change shall occur until the
issue has been resolved as provided in this subsection;

       (4)      the following guidelines apply to major changes in a child's life:

           (a) if either parent plans to change his home city or state of residence, he
shall provide to the other parent thirty days' notice in writing stating the date and
destination of move;

           (b) the religious denomination and religious activities, or lack thereof, which
were being practiced during the marriage should not be changed unless the parties
agree or it has been otherwise resolved as provided in this subsection;

          (c) both parents shall have access to school records, teachers and activities.
The type of education, public or private, which was in place during the marriage should
continue, whenever possible, and school districts should not be changed unless the
parties agree or it has been otherwise resolved as provided in this subsection;

           (d) both parents shall have access to medical and dental treatment providers
and records. Each parent has authority to make emergency medical decisions. Neither
parent may contract for major elective medical or dental treatment unless both parents
agree or it has been otherwise resolved as provided in this subsection; and

           (e) both parents may attend the child's public activities and both parents
should know the necessary schedules. Whatever recreational activities the child
participated in during the marriage should continue with the child's agreement,
regardless of which of the parents has physical custody. Also, neither parent may enroll
the child in a new recreational activity unless the parties agree or it has been otherwise
resolved as provided in this subsection; and

       (5)      decisions regarding major changes in a child's life may be decided by:

             (a) agreement between the joint custodial parents;
           (b) requiring that the parents seek family counseling, conciliation or mediation
service to assist in resolving their differences;

             (c) agreement by the parents to submit the dispute to binding arbitration;

          (d) allocating ultimate responsibility for a particular major decision area to one
legal custodian;

             (e) terminating joint custody and awarding sole custody to one person;

          (f) reference to a master pursuant to Rule 53 [Rule 1-053 NMRA] of the
Rules of Civil Procedure for the District Courts; or

             (g) the district court.

    K. When any person other than a natural or adoptive parent seeks custody of a
child, no such person shall be awarded custody absent a showing of unfitness of the
natural or adoptive parent.

   L. As used in this section:

       (1)      "child" means a person under the age of eighteen;

       (2)     "custody" means the authority and responsibility to make major decisions
in a child's best interests in the areas of residence, medical and dental treatment,
education or child care, religion and recreation;

      (3)   "domestic abuse" means any incident by a household member against
another household member resulting in:

             (a) physical harm;

             (b) severe emotional distress;

             (c) a threat causing imminent fear of physical harm by any household
member;

             (d) criminal trespass;

             (e) criminal damage to property;

         (f) stalking or aggravated stalking, as provided in Sections 30-3A-3 and 30-
3A-3.1 NMSA 1978; or

             (g) harassment, as provided in Section 30-3A-2 NMSA 1978;
       (4)    "joint custody" means an order of the court awarding custody of a child to
two parents. Joint custody does not imply an equal division of the child's time between
the parents or an equal division of financial responsibility for the child;

       (5)    "parent" means a natural parent, adoptive parent or person who is acting
as a parent who has or shares legal custody of a child or who claims a right to have or
share legal custody;

        (6)    "parenting plan" means a document submitted for approval of the court
setting forth the responsibilities of each parent individually and the parents jointly in a
joint custody arrangement;

       (7)     "period of responsibility" means a specified period of time during which a
parent is responsible for providing for a child's physical, developmental and emotional
needs, including the decision making required in daily living. Specified periods of
responsibility shall not be changed in an instance or more permanently except by the
methods of decision making described under Subsection L [Subsection J] of this
section;

      (8)    "sole custody" means an order of the court awarding custody of a child to
one parent; and

      (9)     "visitation" means a period of time available to a noncustodial parent,
under a sole custody arrangement, during which a child resides with or is under the care
and control of the noncustodial parent.

History: 1978 Comp., § 40-4-9.1, enacted by Laws 1981, ch. 112, § 1; reenacted by
Laws 1986, ch. 41, § 1; 1999, ch. 242, § 1.

                                      ANNOTATIONS

Bracketed material. — The bracketed material was inserted by the compiler and is not
part of the law. The reference in Subsection L(7) to Subsection L appears to be
erroneous. The apparent intended reference is to Subsection J.

The 1999 amendment, effective June 18, 1999, added Subsection B(9); in Subsection
L, added Paragraph (3), redesignated the subsequent paragraphs accordingly, and
substituted "decision making described under Subsection L of this section" for "decision
making described under the definition of joint custody" in Paragraph (7); and made
stylistic changes throughout the section.

The "holding out" provision with regard to paternity applies to women. — Where
petitioner alleged that petitioner and respondent, who both were women, had a
committed, long-term domestic relationship; they agreed to bring a child into their
relationship; respondent adopted a child; petitioner never adopted the child; and
petitioner supported respondent and the child financially, lived in the family home, held
the child out as petitioner’s natural child, and co-parented the child for a number of
years before the parties dissolved their relationship; petitioner had standing to file an
action under 40-11-12 NMSA 1978 (repealed, see 40-11A-601 and 40-11A-602 NMSA
1978) because petitioner alleged sufficient facts to satisfy the hold out provision of
Subsection A(4) of 40-11-5 NMSA 1978 (repealed, see 40-11A-204 NMSA 1978) and if
petitioner were able to establish a parent child relationship under the Uniform Parentage
Act (repealed, see New Mexico Uniform Parentage Act, Chapter 40, Article 11A NMSA
1978), then petitioner would have standing to seek joint custody of the child under 40-4-
9.1 NMSA 1978. Chatterjee v. King, 2012-NMSC-019, 280 P.3d 283, rev’g 2011-NMCA-
012,149 N.M. 625, 253 P.3d 915.

Recreational expenses. — The requirement for including recreational expenses is
implicit in the statutory provision governing joint custody. Section 40-4-9.1(J)(4)(e)
NMSA 1978 states that when joint custody is awarded, "whatever recreational activities
the child participated in during the marriage should continue with the child's agreement,
regardless of which of the parents has physical custody." This provision represents a
legislative recognition of the importance of recreational activities to children. But the
importance of an activity is not in itself a reason for separate inclusion of the expense
for that activity in the child support guidelines. All ordinary expenses are presumably
taken into consideration in establishing the guidelines for basic child support. The child
support awarded under the guidelines should be adequate to feed and shelter the
children, and to provide for recreational activities. Rosen v. Lantis, 1997-NMCA-033,
123 N.M. 231, 938 P.2d 729.

Standing of non-parent to bring a custody claim. — Absent a showing of unfitness
of the natural or adoptive parent, a person who is not the natural or adoptive parent
does not have standing to bring a claim for custody. Chatterjee v. King, 2011-NMCA-
012, 149 N.M. 625, 253 P.3d 915, cert. granted, 2011-NMCERT-001, 150 N.M. 558,
263 P.3d 900.

Where petitioner and respondent were in a committed relationship for several years;
respondent adopted a child; petitioner did not adopt the child; petitioner and respondent
lived as a family, jointly raised the child, and held themselves out as parents; petitioner
provided financial and emotional support for the child, cared for the child, and formed a
parental relationship with the child; and respondent ended the relationship and moved
out with the child, petitioner did not have standing to bring a claim for custody of the
child. Chatterjee v. King, 2011-NMCA-012, 149 N.M. 625, 253 P.3d 915, cert. granted,
2011-NMCERT-001, 150 N.M. 558, 263 P.3d 900.

Standing of non-parent to bring claim for visitation. — The requirement that a non-
parent show unfitness of a natural or adoptive parent before a court can consider a non-
parent for custody is not relevant to a determination of visitation and a non-parent who
establishes a prima facie case for a parent and child relationship may assert a claim for
visitation. Chatterjee v. King, 2011-NMCA-012, 149 N.M. 625, 253 P.3d 915, cert.
granted, 2011-NMCERT-001, 150 N.M. 558, 263 P.3d 900.
Where petitioner and respondent were in a committed relationship for several years;
respondent adopted a child; petitioner did not adopt the child; petitioner and respondent
lived as a family, jointly raised the child, and held themselves out as parents; and
petitioner provided financial and emotional support for the child, cared for the child, and
formed a parental relationship with the child, petitioner had a colorable claim for
standing to bring a claim for visitation. Chatterjee v. King, 2011-NMCA-012, 149 N.M.
625, 253 P.3d 915, cert. granted, 2011-NMCERT-001, 150 N.M. 558, 263 P.3d 900.

Joint custody not infringement on right to travel or relocate. — An order providing
for joint custody and requiring the mother to give physical custody of her child to the
father unless she returned to New Mexico did not unlawfully infringe upon her right to
travel or to relocate. Alfieri v. Alfieri, 1987-NMCA-003, 105 N.M. 373, 733 P.2d 4.

Presumption regarding joint custody. — There is a presumption that joint custody is
in the best interests of the child. Grant v. Cumiford, 2005-NMCA-058, 137 N.M. 485,
112 P.3d 1142.

Court, in determining support, should consider all relevant factors. — Where
primary custody of children is split between the parties and issues of child support are
involved, the court in its broad discretion should consider all of the relevant factors and
circumstances in order to achieve a fair balancing of the equities in light of the best
interests and welfare of the children and the financial resources of the parents. DeTevis
v. Aragon, 1986-NMCA-105, 104 N.M. 793, 727 P.2d 558.

Factors considered. — In considering whether joint custody would promote the best
interests of a child, the trial court must determine: (1) whether the child has established
such relationships with both parents that he or she would benefit from joint custody; (2)
that both parents are fit; (3) that both parents desire continuing involvement with the
child; and (4) that both parents are able to communicate and cooperate in promoting the
child's best interests. The ability to cooperate concerning joint child custody does not
require the parents to have a totally amicable relationship, however: a successful joint
custody arrangement requires that the parents be able to isolate their personal conflicts
from their roles as parents and that the children be spared whatever resentments and
rancor the parents may harbor. Sanchez v. Sanchez, 1988-NMCA-028, 107 N.M. 159,
754 P.2d 536, cert. denied, 107 N.M. 151, 754 P.2d 528.

Discretion of trial court. — A trial court has wide discretion in awarding custody of a
child in a divorce case, and the welfare of the child is of primary importance in making
the award. Creusere v. Creusere, 1982-NMSC-126, 98 N.M. 788, 653 P.2d 164.

Modification is discretionary. — Whether modification of the initial agreement is
appropriate is a matter entrusted to the sound discretion of the trial court, based upon
the evidence submitted by the parties. Jeantete v. Jeantete, 1990-NMCA-138, 111 N.M.
417, 806 P.2d 66.
Scope of statement required in court's order. — The requirement, under the
provisions of former Subsection B which are similar to those in present Subsection I,
that the court must state its reasons for modifying a joint custody order is not satisfied
by a simple statement that the circumstances of the parties and their minor child have
materially changed since the entry of the final decree. Jaramillo v. Jaramillo, 1985-
NMCA-062, 103 N.M. 145, 703 P.2d 922.

Requirement of statement in the custody order. — The plain language of this section
requires the court to set forth in its decision the basis for its determination either
granting or denying joint custody. Jeantete v. Jeantete, 1990-NMCA-138, 111 N.M. 417,
806 P.2d 66.

Adequacy of statement in court order. — Trial court adequately articulated the basis
for its denial of a motion for modification of visitation, where the motion did not
specifically seek the granting or denial of joint custody, and the court's order denying
modification recited in applicable part: "the motion is denied because the father failed to
allege or prove the existence of a material change of circumstances relating to the
child." Jeantete v. Jeantete, 1990-NMCA-138, 111 N.M. 417, 806 P.2d 66.

Joint custody award. — As specified by Subsection J(1), an award of joint custody
means that "each parent shall have significant, well-defined periods of responsibility for
the child"; however, joint custody awards need not equally divide the time period relating
to the child's physical custody. Jeantete v. Jeantete, 1990-NMCA-138, 111 N.M. 417,
806 P.2d 66.

When joint custody parents fail to accommodate one another and cannot reach
agreement, even with the assistance of counselors, conciliators, mediators or
arbitrators, the court has few options available; it may make the controverted decision
itself and enforce its determination without changing the legal status of the parents, or it
may reevaluate the best interests of the children in light of either or both parents' failure
to fulfill joint custody responsibilities, and modify their custody. Strosnider v. Strosnider,
1984-NMCA-082, 101 N.M. 639, 686 P.2d 981.

Discretion of court in making award. — 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.

Determination not overturned absent abuse of discretion. — The determination of
the trial judge in a joint custody decision who saw the parties, observed their demeanor
and heard their testimony will not be overturned absent a manifest abuse of discretion.
Creusere v. Creusere, 1982-NMSC-126, 98 N.M. 788, 653 P.2d 164.
Denial of joint custody for incompatibility. — The trial court did not abuse its
discretion in denying joint custody and in granting sole custody to the wife when the
level of incompatibility between the husband and wife was not in the child's best interest
and, thus, did not support joint custody of the child. Creusere v. Creusere, 1982-NMSC-
126, 98 N.M. 788, 653 P.2d 164.

Burden on party seeking to modify joint custody decree. — A party seeking to
modify a decree of joint custody must overcome the presumption of the reasonableness
of the original decree. Jeantete v. Jeantete, 1990-NMCA-138, 111 N.M. 417, 806 P.2d
66.

Burden of proof in modification of joint custody arrangements. — In a joint custody
arrangement, when one party initiates a proceeding to alter an existing custody
arrangement, the party seeking such change has the burden to show that the existing
arrangement is no longer workable. Each party will then have the burden to persuade
the court that the new custody arrangement or parenting plan proposed by him or her
should be adopted by the court, but that party's failure to carry this burden will only
mean that the court remains free to adopt the arrangement or plan that it determines
best promotes the child's interests. Jaramillo v. Jaramillo, 1991-NMSC-101, 113 N.M.
57, 823 P.2d 299.

Notice and hearing required. — Joint custody cannot be terminated except after a
hearing following specific notice that continuation of joint custody will be at issue. Taylor
v. Tittman, 1995-NMCA-034, 120 N.M. 22, 896 P.2d 1171.

Modification of joint custody warranted. — Whether or not there was proof of
"emotional damage" per se, the observation that the parties' continuing inability to
cooperate was affecting the children was a sufficient change in circumstance to support
the modification of joint custody. Thomas v. Thomas, 1999-NMCA-135, 128 N.M. 177,
991 P.2d 7, cert. denied, 128 N.M. 150, 990 P.2d 824.

Modification to joint custody reversed. — Judgment changing sole custody in the
mother to joint legal custody, unless and until the mother was able to comply with a
parenting plan agreed to by the parties, was reversed, where the trial court's findings
failed to resolve basic issues material and necessary to a determination that
modification of the initial custody agreement to joint custody was in the best interests of
the children. Newhouse v. Chavez, 1988-NMCA-110, 108 N.M. 319, 772 P.2d 353, cert.
denied, 108 N.M. 197, 769 P.2d 731 (1989).

Modification of existing custody arrangement requires a showing of substantial
and material change in circumstances. — 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 ordering joint custody without making a finding that there was a substantial and
material change in circumstances, because although the interim order was not a final
order, the plain language of this section states that joint custody shall not be awarded
as a substitute for any existing custody arrangement that is instituted by court order or
decree, unless there has been a substantial and material change in circumstances, and
there was nothing in the stipulated interim order establishing that the custody
arrangement was temporary or subject to change. Hough v. Brooks, 2017-NMCA-050,
cert. denied.

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.

Relocation of custodial parent. — In situations in which one parent has sole custody
of the child, the custodian seeking to relocate with a child is entitled to a presumption
that the move is in the best interests of the child, and the burden is on the noncustodial
parent to show that the move is against those interests or motivated by bad faith on the
part of the custodial parent. However, the designation of one parent as "primary
physical custodian" under a court-approved parenting plan in a joint custody situation
simply means that the child resides with that parent more than half the time.
Consequently, one parent's status as primary physical custodian has no particular
significance and should not entitle that parent to the benefit of any presumption.
Jaramillo v. Jaramillo, 1991-NMSC-101, 113 N.M. 57, 823 P.2d 299.

Burden on relocating party impermissible. — In joint custody cases, placing the
burden on the party seeking to relocate to show that the relocation is in the best
interests of the child unconstitutionally impairs the relocating parent's right to travel.
Jaramillo v. Jaramillo, 1991-NMSC-101, 113 N.M. 57, 823 P.2d 299.

Modification of joint custody by awarding primary physical custody to father. —
Where father filed for a change of custody of his two children, requesting that he be
awarded sole legal custody and that he be permitted to relocate to another state with his
children, the district court's order, awarding primary physical custody to father and
permitting father to relocate children to another state, intended only to modify, not
terminate, joint custody, and the district court did not abuse its discretion in modifying
joint custody because it considered all of the factors necessary in determining whether
relocation was in the best interests of the children. Hopkins v. Wollaber, 2019-NMCA-
024.

Mediation not required. — The language of Subsection G of this section and 40-4-
8B(1) NMSA 1978 permits the court to bypass mediation if it does not appear to be
feasible, even in non-domestic violence or abuse situations. Thomas v. Thomas, 1999-
NMCA-135, 128 N.M. 177, 991 P.2d 7, cert. denied, 128 N.M. 150, 990 P.2d 824.

Law reviews. — For annual survey of New Mexico law relating to domestic relations,
see 12 N.M.L. Rev. 325 (1982).

Annual Survey of New Mexico Family Law, see 17 N.M.L. Rev. 291 (1987).

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

For article, "Children's Rights v. Parents' Rights: A Proposed Solution to the Custodial
Relocation Conundrum," see 29 N.M.L. Rev. 245 (1999).

Am. Jur. 2d, A.L.R. and C.J.S. references. — Necessity of requiring presence in court
of both parties in proceedings relating to custody or visitation of children, 15 A.L.R.4th
864.

Propriety of awarding joint custody of children, 17 A.L.R.4th 1013.

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

Postmajority disability as reviving parental duty to support child, 48 A.L.R.4th 919.

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

State court's authority, in marital or child custody proceeding, to allocate federal income
tax dependency exemption for child to noncustodial parent under § 152(e) of the
Internal Revenue Code (26 USCS § 152(e)), 77 A.L.R.4th 786.

Child custody and visitation rights of person infected with AIDS, 86 A.L.R.4th 211.

Application of child-support guidelines to cases of joint-, split-, or similar shared-custody
arrangements, 57 A.L.R.5th 389.