SB0441

SENATE BILL 441

57th legislature - STATE OF NEW MEXICO - first session, 2025

INTRODUCED BY

Antoinette Sedillo Lopez and Angel M. Charley and Cindy Nava

AN ACT

RELATING TO DOMESTIC AFFAIRS; REQUIRING CHILD ABUSE AND DOMESTIC VIOLENCE ABUSE TRAINING FOR JUDGES AND COURT PERSONNEL; BROADENING THE STANDARDS FOR THE DETERMINATION OF CHILD CUSTODY TO INCLUDE EVIDENCE OF CHILD ABUSE OR DOMESTIC ABUSE; PROHIBITING COURTS FROM ORDERING REUNIFICATION TREATMENT IN CASES WHERE CUSTODY OR PARENTING PLANS ARE CONTESTED AND THERE IS EVIDENCE OF CHILD ABUSE OR DOMESTIC ABUSE; PROHIBITING COURTS FROM ORDERING A PROFESSIONAL EVALUATION IN CASES WHERE CUSTODY OR PARENTING PLANS ARE CONTESTED AND THERE IS EVIDENCE OF CHILD ABUSE OR DOMESTIC ABUSE, UNLESS THE PERSON CONDUCTING THE PROFESSIONAL EVALUATION POSSESSES CERTAIN QUALIFICATIONS AND EXPERIENCE.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF NEW MEXICO:

SECTION 1. A new section of Chapter 40 NMSA 1978 is enacted to read:

"[NEW MATERIAL] FAMILY VIOLENCE TRAINING FOR JUDGES AND COURT PERSONNEL.--

A. Beginning January 1 2026, and at least annually thereafter, the administrative office of the courts shall provide evidence-based ongoing training to judges and court personnel on domestic abuse.

B. For purposes of this section, "domestic abuse" means an incident by a household member against another household member resulting in:

(1) physical harm;

(2) severe emotional distress;

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

(4) criminal trespass;

(5) criminal damage to property;

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

(7) harassment, as provided in Section 30-3A-2 NMSA 1978."

SECTION 2. Section 40-4-9 NMSA 1978 (being Laws 1977, Chapter 172, Section 1) is amended to read:

"40-4-9. STANDARDS FOR THE DETERMINATION OF CHILD CUSTODY--HEARING.--

A. In any case in which a judgment or decree will be entered awarding the custody of a minor, the district court shall, if the minor is under the age of fourteen, determine custody in accordance with the best interests of the child. The court shall consider all relevant factors, including but not limited to:

(1) the wishes of the child's parent or parents as to [his] the child's custody;

(2) the wishes of the child as to [his] the child's custodian;

(3) the interaction and interrelationship of the child with [his] the child's parents [his] and siblings and any other person who may significantly affect the child's best interest;

(4) the child's adjustment to [his] the child's home, school and community; [and]

(5) the mental and physical health of all individuals involved; and

(6) evidence of child abuse or domestic abuse, including protection orders, arrests or convictions.

B. If the minor is fourteen years of age or older, the court shall consider the desires of the minor as to with whom [he] the minor wishes to live before awarding custody of [such] the minor.

C. Whenever testimony is taken from the minor concerning [his] the minor's choice of custodian, the [court] judge shall hold a private hearing in [his] the judge's chambers. The judge shall have a court reporter in [his] the judge's chambers who shall transcribe the hearing; however, the court reporter shall not file a transcript unless an appeal is taken.

D. For purposes of this section:

(1) "child abuse" means:

(a) that a child has been physically, emotionally or psychologically abused by a parent;

(b) that a child has been: 1) sexually abused by a parent through criminal sexual penetration, incest or criminal sexual contact of a minor as those acts are defined by state law; or 2) sexually exploited by a parent through allowing, permitting or encouraging the child to engage in prostitution and allowing, permitting, encouraging or engaging the child in obscene or pornographic photographing or filming or depicting a child for commercial purposes as those acts are defined by state law;

(c) that a child has been knowingly, intentionally or negligently placed in a situation that may endanger the child's life or health; or

(d) that a child has been knowingly or intentionally tortured, cruelly confined or cruelly punished; provided that nothing in this subparagraph shall be construed to imply that a child who is or has been provided with treatment by spiritual means alone through prayer, in accordance with the tenets and practices of a recognized church or religious denomination, by a duly accredited practitioner of the church or denomination, is for that reason alone a victim of child abuse within the meaning of this subparagraph; and

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

(a) physical harm;

(b) severe emotional distress;

(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."

SECTION 3. Section 40-4-9.1 NMSA 1978 (being Laws 1986, Chapter 41, Section 1, as amended) is amended to read:

"40-4-9.1. JOINT CUSTODY--STANDARDS FOR DETERMINATION--PARENTING 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.

G. 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.] H. 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 of the New Mexico Rules of Evidence or Rule 53 of the Rules of Civil Procedure for the District Courts. However, in a case where there is evidence of child abuse or domestic abuse, a person shall not perform an evaluation or testify as an expert witness regarding an evaluation performed pursuant to this section unless the court finds that the person is qualified as competent, by training and experience, in the areas of the effects of domestic abuse on children, adults and families, including the connection between domestic abuse and trauma on children. The person's training and experience shall be provided by recognized sources with expertise in child abuse or domestic abuse and the traumatic effects of domestic abuse.

I. In a case where child custody or necessary aspects of a parenting plan are contested, in which a claim of domestic abuse has been made to the court, or the court has reason to believe that a party has committed domestic abuse, the court shall not order reunification treatment unless there is generally accepted and scientifically valid proof of the safety, effectiveness and therapeutic value of the reunification treatment.

[H.] J. 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.] K. 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.] L. 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] that 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] the parent's home city or state of residence, [he] that parent 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] that 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] that 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;

(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 of the Rules of Civil Procedure for the District Courts; or

(g) the district court.

[K.] M. When [any] a 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.] N. As used in this section:

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

(2) "child abuse" means:

(a) that a child has been physically, emotionally or psychologically abused by a parent;

(c) that a child has been knowingly, intentionally or negligently placed in a situation that may endanger the child's life or health; or

[(2)] (3) "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)] (4) "domestic abuse" means any incident by a household member against another household member resulting in:

(a) physical harm;

(b) severe emotional distress;

(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)] (5) "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)] (6) "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)] (7) "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)] (8) "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] J of this section;

(9) "reunification treatment" means a treatment or therapy aimed at reuniting or reestablishing a relationship between a child and an estranged or rejected parent or other family member of the child;

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

[(9)] (11) "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."

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