SENATE JUDICIARY COMMITTEE SUBSTITUTE FOR

SENATE BILL 203

47th legislature - STATE OF NEW MEXICO - first session, 2005

AN ACT

RELATING TO DOMESTIC RELATIONS; ADDING REQUIREMENTS FOR THE APPOINTMENT OF A GUARDIAN AD LITEM.

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

     Section 1. Section 40-4-8 NMSA 1978 (being Laws 1977, Chapter 286, Section 1, as amended) is amended to read:

     "40-4-8. CONTESTED CUSTODY--APPOINTMENT OF GUARDIAN AD LITEM--COURT-ORDERED MEDIATION.--

          A. In any proceeding [for the disposition of children] under this chapter when custody of a minor [children] child is contested by [any party] either parent, upon a showing of good cause, the court may appoint an attorney at law as guardian ad litem, on the court's motion or upon [application of any party] motion of either parent, to appear for and represent the minor [children] child. The expenses, costs and [attorneys'] professional fees for the guardian ad litem [may] shall be allocated [among] between the parties as determined by the court. In no event shall the court delegate to the guardian ad litem the ultimate determination of the child's best interests regarding custody or time-sharing under Section 40-4-9 NMSA 1978. The guardian ad litem's cumulative professional fees shall not exceed five thousand dollars ($5,000) unless approved by the court for good cause shown. In determining whether an appointment will be made, the court shall consider all relevant factors, including:

                (1) the wishes of the parents;

                (2) the age of the child;

                (3) the contentiousness of the parties or other dynamics affecting the child;

                (4) the extent to which a guardian ad litem will assist the court by providing factual information useful to the court in determining a child's best interests; and

                (5) the ability of the parties to pay.

          B. A guardian ad litem appointed on or after January 1, 2006 shall:

                (1) be an attorney licensed to practice law in New Mexico;

                (2) have a minimum of five years experience in the practice of law, with at least fifty percent of that practice having been in family law or domestic relations matters; and

                (3) possess such other qualifications as determined by the New Mexico supreme court to include training in child development.

          C. In all cases where a guardian ad litem has been appointed before custody or time-sharing is decided by the court, a child six years of age or older shall have the right to petition to give testimony pursuant to Subsection C of Section 40-4-9 NMSA 1978.

          D. Every order appointing a guardian ad litem shall:

                (1) state the guardian ad litem's duties with particularity either as determined by the court or by the procedure set forth in Rule 11-706 of the New Mexico Rules of Evidence;

                (2) include the duration of the appointment, which shall not exceed one year unless extended by the court for good cause, applying the factors provided in Subsection A of this section;

                (3) state the professional fee the guardian ad litem is authorized to charge and provide for the rendering of itemized monthly statements to the parties and counsel;

                (4) specify a guardian ad litem's duties and responsibilities, including:

                     (a) conducting interviews with the child face to face outside the presence of both parents and counsel if the child is age six or older; conducting interviews of both parents, conducting interviews of any preexisting therapist for the child after obtaining the necessary authority for the release of information; and conducting such other interviews of persons at the guardian ad litem's or the court's discretion after obtaining the necessary authorization for the release of information;

                     (b) submitting a written report of investigation, findings and recommendations as may be directed by the court, which shall be filed of record at least fourteen days before it is to be entertained by the court with copies provided to both parents, each parent's counsel, all parties and the court, except in case of emergency; and

                     (c) reporting to the court the child's wishes, regardless of recommendations;

                (5) specify that the guardian ad litem has no authority to obligate the parents to pay the fees of any therapist without the advance approval of both parents or the court upon hearing; and

                (6) specify that the guardian ad litem has the right to call and examine witnesses.

          [B.] E. When custody is contested, the court:

                (1) shall as soon as practicable refer [that issue to mediation if feasible unless] the parties to domestic relations mediation pursuant to the Domestic Relations Mediation Act. If a party asserts or it appears to the court that domestic [violence] abuse or child abuse has occurred [in which event], the court shall halt or suspend mediation unless the court specifically [finds that] makes a finding under Subparagraphs (a), (b) or (c) of this paragraph. Mediation may occur if:

                     (a) the following [three] conditions [are satisfied] exist: 1) the mediator has substantial training concerning the effects of domestic [violence] abuse or child abuse on victims; 2) a party who is or alleges to be the victim of domestic [violence] abuse is capable of negotiating with the other party in mediation, either alone or with assistance, without suffering from an imbalance of power as a result of the alleged domestic [violence; and] abuse; and 3) the mediation process contains appropriate provisions and conditions to protect against an imbalance of power between the parties resulting from the alleged domestic [violence] abuse or child abuse;

                     (b) the court finds a lack of probable cause that domestic abuse or child abuse has occurred; or

                     [(b)] (c) in the case of domestic [violence] abuse involving parents, the parent who is or alleges to be the victim requests mediation and the mediator is informed of the alleged domestic [violence] abuse; and

                (2) may order, in addition to or in lieu of the provisions of Paragraph (1) of this subsection, that each of the parties undergo individual counseling in a manner that the court deems appropriate. [if the court finds that the parties can afford the counseling; and

                (3) may use, in addition to or in lieu of the provisions of Paragraph (1) of this subsection, auxiliary services such as professional evaluation by application of Rule 11-706 of the New Mexico Rules of Evidence or Rule 1-053 of the Rules of Civil Procedure for the District Courts.

          C.] F. As used in 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 paragraph 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 paragraph; and

                (2) "domestic [violence] abuse" means [one parent causing or threatening physical harm or assault or inciting imminent fear of physical, emotional or psychological harm to the other parent] an incident by a household member against another household member resulting in:

                     (a) physical harm;

                     (b) severe emotional distress;

                     (c) bodily injury or assault;

                     (d) a threat causing imminent fear of bodily injury by any household member;

                     (e) criminal trespass;

                     (f) criminal damage to property;

                     (g) repeatedly driving by a residence or work place;

                     (h) telephone harassment;

                     (i) stalking;

                     (j) harassment; or

                     (k) harm or threatened harm to a child."

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