0001| SENATE BILL 283
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0002| 43RD LEGISLATURE - STATE OF NEW MEXICO - SECOND SESSION, 1998
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0003| INTRODUCED BY
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0004| L. SKIP VERNON
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0006|
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0007|
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0008|
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0009|
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0010| AN ACT
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0011| RELATING TO FAMILY LAW; PROVIDING ADDITIONAL GUIDELINES FOR
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0012| JOINT CUSTODY OF A CHILD; AMENDING A SECTION OF THE NMSA 1978.
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0013|
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0014| BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF NEW MEXICO:
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0015| Section 1. Section 40-4-9.1 NMSA 1978 (being Laws 1986,
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0016| Chapter 41, Section 1) is amended to read:
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0017| "40-4-9.1. JOINT CUSTODY--STANDARDS FOR DETERMINATION--
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0018| PARENTING PLAN.--
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0019| A. There shall be a presumption that joint custody
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0020| is in the best [interest] interests of a child in an
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0021| initial custody determination. An award of joint custody does
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0022| not imply an equal division of financial responsibility for
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0023| the child. Joint custody shall not be awarded as a substitute
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0024| for an existing custody arrangement unless there has been a
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0025| substantial and material change in circumstances since the
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0001| entry of the prior custody order or decree, which change
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0002| affects the welfare of the child such that joint custody is
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0003| presently in the best interests of the child. With respect to
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0004| any proceeding in which it is proposed that joint custody be
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0005| terminated, the court shall not terminate joint custody unless
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0006| there has been a substantial and material change in
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0007| circumstances affecting the welfare of the child, since entry
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0008| of the joint custody order, such that joint custody is no
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0009| longer in the best interests of the child.
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0010| B. In determining whether a joint custody order is
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0011| in the best interests of the child, in addition to the factors
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0012| provided in Section 40-4-9 NMSA 1978, the court shall consider
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0013| the following factors:
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0014| (1) whether the child has established a close
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0015| relationship with each parent;
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0016| (2) whether each parent is capable of
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0017| providing adequate care for the child throughout each period
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0018| of responsibility, including arranging for the child's care by
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0019| others as needed;
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0020| (3) whether each parent is willing to accept
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0021| all responsibilities of parenting, including a willingness to
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0022| accept care of the child at specified times and to relinquish
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0023| care to the other parent at specified times;
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0024| (4) whether the child can best maintain and
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0025| strengthen a relationship with both parents through
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0001| predictable, frequent contact and whether the child's
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0002| development will profit from such involvement and influence
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0003| from both parents;
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0004| (5) whether each parent is able to allow the
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0005| other to provide care without intrusion, that is, to respect
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0006| the other's parental rights and responsibilities and [his or
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her] right to privacy;
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0008| (6) the suitability of a parenting plan for
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0009| the implementation of joint custody, preferably, although not
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0010| necessarily, one arrived at through parental agreement;
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0011| (7) geographic distance between the parents'
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0012| residences; and
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0013| (8) willingness or ability of the parents to
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0014| communicate, cooperate or agree on issues regarding the
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0015| child's needs.
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0016| C. In any proceeding in which the custody of a
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0017| child is at issue, the court shall not prefer one parent as a
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0018| custodian solely because of gender.
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0019| D. In any case in which the parents agree to a
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0020| form of custody, the court should award custody consistent
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0021| with the agreement unless the court determines that such
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0022| agreement is not in the best [interest] interests of the
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0023| child.
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0024| E. In making an order of joint custody, the court
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0025| may specify the circumstances, if any, under which the consent
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0001| of both legal custodians is required to be obtained in order
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0002| to exercise legal control of the child and the consequences of
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0003| the failure to obtain mutual consent.
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0004| F. When joint custody is awarded, the court shall
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0005| approve a parenting plan for the implementation of the
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0006| prospective custody arrangement prior to the award of joint
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0007| custody. The parenting plan shall include a division of a
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0008| child's time and care into periods of responsibility for each
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0009| parent. It may also include:
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0010| (1) statements regarding the child's
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0011| religion, education, child care, recreational activities and
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0012| medical and dental care;
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0013| (2) designation of specific decision-making
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0014| responsibilities;
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0015| (3) methods of communicating information
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0016| about the child, transporting the child, exchanging care for
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0017| the child and maintaining telephone and mail contact between
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0018| parent and child;
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0019| (4) procedures for future decision making,
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0020| including procedures for dispute resolution; and
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0021| (5) other statements regarding the welfare of
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0022| the child or designed to clarify and facilitate parenting
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0023| under joint custody arrangements.
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0024| In a case where joint custody is not agreed to or
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0025| necessary aspects of the parenting plan are contested, the
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0001| parties shall each submit parenting plans. The court may
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0002| accept the plan proposed by either party or it may combine or
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0003| revise these plans as it deems necessary in the child's best
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0004| [interest] interests. The time of filing of parenting
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0005| plans shall be set by local rule. A plan adopted by the court
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0006| shall be entered as an order of the court.
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0007| G. Where custody is contested, the court shall
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0008| refer that issue to mediation if feasible. The court may also
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0009| use auxiliary services such as professional evaluation by
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0010| application of Rule 706 of the New Mexico rules of evidence or
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0011| Rule 53 of the Rules of Civil Procedure for the District
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0012| [court] Courts.
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0013| H. Notwithstanding any other provisions of law,
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0014| access to records and information pertaining to a minor child,
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0015| including [but not limited to] medical, dental and school
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0016| records, shall not be denied to a parent because that parent
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0017| is not the child's physical custodial parent or because that
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0018| parent is not a joint custodial parent.
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0019| I. Whenever a request for joint custody is granted
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0020| or denied, the court shall state in its decision its basis for
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0021| granting or denying the request for joint custody. A
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0022| statement that joint custody is or is not in the best
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0023| interests of the child is not sufficient to meet the
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0024| requirements of this subsection.
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0025| J. An award of joint custody means that:
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0001| (1) each parent's ability to mold and
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0002| cultivate a relationship with the child shall not be infringed
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0003| upon unless there is a compelling interest of the child or one
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0004| of the parents;
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0005| [(1)] (2) each willing and able parent
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0006| shall have liberal, significant and well-defined periods
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0007| of responsibility for the child pursuant to the following
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0008| minimum guidelines:
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0009| (a) for a child less than eighteen
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0010| months of age, each parent shall have an ample opportunity to
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0011| bond with the child. The noncustodial parent shall be awarded
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0012| an occasional overnight visit with the child;
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0013| (b) for a child eighteen months of age
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0014| through the child's attendance in kindergarten classes, each
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0015| parent is entitled to an opportunity to develop and maintain a
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0016| daily relationship with the child. The noncustodial parent
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0017| shall be awarded two overnight visitations per week with the
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0018| child;
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0019| (c) for a child of preschool age, each
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0020| parent's right to care for the child shall take precedence
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0021| over sending the child to daycare or having a third party care
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0022| for the child;
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0023| (d) for a child attending school until
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0024| the child reaches the age of fourteen, each parent shall have
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0025| a timesharing opportunity that allows each parent to fully
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0001| participate in the child's school activities, after-school
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0002| activities and homework activities;
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0003| (e) during summer months and school
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0004| breaks, each parent shall have a liberal period of time with
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0005| the child. However, the parents may stipulate otherwise; and
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0006| (f) during major holidays and the
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0007| child's birthday, each parent shall have a period of time with
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0008| the child. During minor holidays, the parents shall annually
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0009| alternate spending those holidays with the child. However,
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0010| the parents may stipulate otherwise;
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0011| [(2)] (3) each parent shall have, and be
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0012| allowed and expected to carry out, responsibility for the
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0013| child's financial, physical, emotional and developmental needs
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0014| during that parent's periods of responsibility;
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0015| [(3)] (4) the parents shall consult with
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0016| each other on major decisions involving the child before
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0017| implementing those decisions; that is, neither parent shall
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0018| make a decision or take an action which results in a major
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0019| change in a child's life until the matter has been discussed
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0020| with the other parent and the parents agree. If the parents,
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0021| after discussion, cannot agree and if one parent wishes to
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0022| effect a major change while the other does not wish the major
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0023| change to occur, then no change shall occur until the issue
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0024| has been resolved as provided in this subsection;
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0025| [(4)] (5) the following guidelines
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0001| [shall] apply to major changes in a child's life:
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0002| (a) if either parent plans to change
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0003| his home city or state of residence, he shall provide to the
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0004| other parent thirty days' notice in writing stating the date
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0005| and destination of move;
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0006| (b) there is a rebuttable presumption
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0007| that a proposed long-distance relocation of a child that does
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0008| not accommodate the child's relationship with both parents is
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0009| not in the child's best interests;
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0010| [(b)] (c) the religious
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0011| denomination and religious activities, or lack thereof, which
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0012| were being practiced during the marriage should not be changed
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0013| unless the parties agree or it has been otherwise resolved as
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0014| provided in this subsection;
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0015| [(c)] (d) both parents shall have
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0016| access to school records, teachers and activities. The type
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0017| of education, public or private, which was in place during the
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0018| marriage should continue, whenever possible, and school
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0019| districts should not be changed unless the parties agree or it
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0020| has been otherwise resolved as provided in this subsection;
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0021| [(d)] (e) both parents shall have
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0022| access to medical and dental treatment providers and records.
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0023| Each parent has authority to make emergency medical decisions.
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0024| Neither parent may contract for major elective medical or
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0025| dental treatment unless both parents agree or it has been
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0001| otherwise resolved as provided in this subsection; and
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0002| [(e)] (f) both parents may attend
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0003| the child's public activities and both parents should know the
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0004| necessary schedules. Whatever recreational activities the
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0005| child participated in during the marriage should continue with
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0006| the child's agreement, regardless of which of the parents has
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0007| physical custody. Also, neither parent may enroll the child
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0008| in a new recreational activity unless the parties agree or it
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0009| has been otherwise resolved as provided in this subsection;
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0010| and
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0011| [(5)] (6) decisions regarding major
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0012| changes in a child's life may be decided by:
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0013| (a) agreement between the joint
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0014| custodial parents;
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0015| (b) [a requirement] requiring that
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0016| the parents seek family counseling, conciliation or mediation
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0017| service to assist in resolving their differences;
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0018| (c) agreement by the parents to submit
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0019| the dispute to binding arbitration;
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0020| (d) allocating ultimate responsibility
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0021| for a particular major decision area to one legal custodian;
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0022| (e) terminating joint custody and
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0023| awarding sole custody to one person;
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0024| (f) reference to a master pursuant to
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0025| Rule 53 of the Rules of Civil Procedure for the District
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0001| Courts; or
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0002| (g) the district court.
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0003| K. When any person other than a natural or
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0004| adoptive parent seeks custody of a child, no such person shall
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0005| be awarded custody absent a showing of unfitness of the
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0006| natural or adoptive parent.
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0007| L. As used in this section:
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0008| (1) "child" means a person under the age of
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0009| [18] eighteen;
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0010| (2) "custody" means the authority and
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0011| responsibility to make major decisions in a child's best
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0012| [interest] interests in the areas of residence, medical
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0013| and dental treatment, education or child care, religion and
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0014| recreation;
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0015| (3) "joint custody" means an order of the
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0016| court awarding custody of a child to two parents. Joint
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0017| custody does not imply an equal division of the child's time
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0018| between the parents or an equal division of financial
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0019| responsibility for the child;
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0020| (4) "parent" means a natural parent, adoptive
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0021| parent or person who is acting as a parent who has or shares
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0022| legal custody of a child or who claims a right to have or
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0023| share legal custody;
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0024| (5) "parenting plan" means a document
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0025| submitted for approval of the court setting forth the
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0001| responsibilities of each parent individually and the parents
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0002| jointly in a joint custody arrangement;
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0003| (6) "period of responsibility" [is] means
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0004| a specified period of time during which a parent is
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0005| responsible for providing for a child's physical,
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0006| developmental and emotional needs, including the decision
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0007| making required in daily living. Specified periods of
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0008| responsibility shall not be changed in an instance or more
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0009| permanently except by the methods of decision making described
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0010| under [the definition of joint custody] Subsection J of
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0011| this section;
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0012| (7) "sole custody" means an order of the
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0013| court awarding custody of a child to one parent; and
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0014| (8) "visitation" [is] means a period of
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0015| time available to a noncustodial parent, under a sole custody
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0016| arrangement, during which a child resides with or is under the
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0017| care and control of the noncustodial parent."
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0018| Section 2. EFFECTIVE DATE.--The effective date of the
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0019| provisions of this act is July 1, 1998.
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0020|
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