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F I S C A L I M P A C T R E P O R T

SPONSOR Beam

DATE TYPED 2/5/2005 HB 258

SHORT TITLE Remove Certain Child Custody Presumptions

SB

ANALYST Dunbar

APPROPRIATION

Appropriation Contained Estimated Additional Impact Recurring

or Non-Rec

Fund

Affected

FY05

FY06

FY05

FY06

NFI

(Parenthesis ( ) Indicate Expenditure Decreases)

SOURCES OF INFORMATION

LFC Files

Responses Received From

Children Youth and Families Department (CYFD)

Attorney General (AG)

Administrative Office of the Courts (AOC)

SUMMARY

Synopsis of Bill

House Bill 258 proposes to eliminate the presumption that joint legal custody is in the best inter-

est of a child when a district court determines that a parent has committed an act of domestic

abuse against the other parent within the last five years.

Significant Issues

New Mexico currently presumes that joint custody is in the best interest of the child or children.

Domestic violence offenders often use the fact that they have joint custody of the children to fur-

ther abuse and manipulate their victims. The legislation would remove the presumption of joint

custody in domestic violence situations in cases where a judge has determined that one parent

has committed an act of domestic violence against the other parent within the last five years.

House Bill 258 -- Page 2

The judge would still have the option of awarding joint custody if it is warranted in each particu-

lar case.

House Bill 258 clarifies and adds specificity to the domestic abuse exception in this Act by

eliminating ambiguous references and adding time frames for the court. The proposed language

spells out that the court, under the domestic abuse exception, shall not presume that joint custody

is in the best interest of a child.

PERFORMANCE IMPLICATIONS

CYFD has performance measures relating to improved outcomes for Domestic Violence victims.

The effort to remove presumptive joint custody would increase safety for victims of domestic

violence as well as the safety of child witnesses to domestic violence.

FISCAL IMPLICATIONS

There will be a minimal administrative cost for statewide update, distribution, and documenta-

tion of statutory changes. The fiscal implications on the judiciary will directly follow the amount

of litigation that is generated or, alternatively, avoided by the Act.

TECHNICAL ISSUES

According to the AG, NMSA Section 40-4-9.1 raises the presumption that joint custody is in the

best interests of the child in dissolution of marriage cases. This bill would amend that section to

prohibit the court from making that presumption if the court determines that domestic abuse oc-

curred between the parents “within the last five years”. Presumably this means that the abuse

must have occurred within the five years preceding the filing of the petition for dissolution of

marriage, but that is unclear.

AMENDMENTS

The AG recommends that the bill should be amended to define “domestic abuse”. The time pe-

riod “within the past five years” might also need to be more clearly defined.

WD/njw