HOUSE BILL 389

54th legislature - STATE OF NEW MEXICO - first session, 2019

INTRODUCED BY

Gregg Schmedes and David M. Gallegos

AN ACT

RELATING TO DOMESTIC AFFAIRS; AMENDING A SECTION OF CHAPTER 40, ARTICLE 4 NMSA 1978 TO PROVIDE FOR A PRESUMPTION OF EQUAL TIME-SHARING BETWEEN PARENTS IN CUSTODY DETERMINATIONS.

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

     SECTION 1. 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 with equal time-sharing 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. If the court has previously entered an order determining joint legal custody but has not awarded equal physical custody of the child, and there has been no specific finding that joint custody is not in the child's best interest pursuant to the factors set forth in this section, the court shall set a hearing in a timely manner on the motion to determine whether the parties shall have equal legal and physical joint custody. In determining joint physical custody, it shall be presumed that joint physical custody means equal time-sharing. The court may make a determination for equal joint legal and physical custody on these matters without making a finding that there has been a substantial change of family circumstances. 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] conviction for domestic violence against the child, a parent of the child or other household member [If a determination is made that domestic abuse has occurred] exists or whether a charge for domestic violence is pending, in which case 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. The court shall allocate parenting time pursuant to joint custody according to the child's best interests. In allocating parenting time, the court shall presume that it is in the child's best interests to award equal time to each parent and that:

                (1) the child has a right to a strong and healthy relationship with the child's parents;

                (2) the child's parents have a right and responsibility to create and maintain a strong and healthy relationship with the child; and

                (3) in the absence of domestic violence or any other factor that the court expressly finds to be relevant, proximity to and frequent contact with both parents promotes the child's healthy development.

          E. In a child custody proceeding, the court shall:

                (1) facilitate parental planning and agreement about the child's upbringing and allocation of parenting time and other parental responsibilities;

                (2) continue existing parent-child relationships;

                (3) secure the maximum involvement and cooperation of parents regarding the physical, mental, moral, and emotional well-being of the child during and after a court proceeding;

                (4) encourage or order the child's parents to participate in programs designed to educate parents to:

                     (a) minimize or eliminate rancor and the detrimental effect of litigation in any proceeding involving children; and

                     (b) facilitate the maximum cooperation of parents in raising their children; and

                (5) presume that, in order to maximize the opportunity for the child to maintain and strengthen the child's relationship with each parent, the involvement of both parents for an equal amount of time is in the best interests of the child.

          [D.] F. 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.] G. 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.] H. 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] 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.] I. 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.

          [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;

                     (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 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) "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] 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] decision making described under Subsection L 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."

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