0001| SENATE BILL 283 | 0002| 43RD LEGISLATURE - STATE OF NEW MEXICO - SECOND SESSION, 1998 | 0003| INTRODUCED BY | 0004| L. SKIP VERNON | 0005| | 0006| | 0007| | 0008| | 0009| | 0010| AN ACT | 0011| RELATING TO FAMILY LAW; PROVIDING ADDITIONAL GUIDELINES FOR | 0012| JOINT CUSTODY OF A CHILD; AMENDING A SECTION OF THE NMSA 1978. | 0013| | 0014| BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF NEW MEXICO: | 0015| Section 1. Section 40-4-9.1 NMSA 1978 (being Laws 1986, | 0016| Chapter 41, Section 1) is amended to read: | 0017| "40-4-9.1. JOINT CUSTODY--STANDARDS FOR DETERMINATION-- | 0018| PARENTING PLAN.-- | 0019| A. There shall be a presumption that joint custody | 0020| is in the best ~[interest]~ |interests| of a child in an | 0021| initial custody determination. An award of joint custody does | 0022| not imply an equal division of financial responsibility for | 0023| the child. Joint custody shall not be awarded as a substitute | 0024| for an existing custody arrangement unless there has been a | 0025| substantial and material change in circumstances since the | - 1 - 0001| entry of the prior custody order or decree, which change | 0002| affects the welfare of the child such that joint custody is | 0003| presently in the best interests of the child. With respect to | 0004| any proceeding in which it is proposed that joint custody be | 0005| terminated, the court shall not terminate joint custody unless | 0006| there has been a substantial and material change in | 0007| circumstances affecting the welfare of the child, since entry | 0008| of the joint custody order, such that joint custody is no | 0009| longer in the best interests of the child. | 0010| B. In determining whether a joint custody order is | 0011| in the best interests of the child, in addition to the factors | 0012| provided in Section 40-4-9 NMSA 1978, the court shall consider | 0013| the following factors: | 0014| (1) whether the child has established a close | 0015| relationship with each parent; | 0016| (2) whether each parent is capable of | 0017| providing adequate care for the child throughout each period | 0018| of responsibility, including arranging for the child's care by | 0019| others as needed; | 0020| (3) whether each parent is willing to accept | 0021| all responsibilities of parenting, including a willingness to | 0022| accept care of the child at specified times and to relinquish | 0023| care to the other parent at specified times; | 0024| (4) whether the child can best maintain and | 0025| strengthen a relationship with both parents through | - 2 - 0001| predictable, frequent contact and whether the child's | 0002| development will profit from such involvement and influence | 0003| from both parents; | 0004| (5) whether each parent is able to allow the | 0005| other to provide care without intrusion, that is, to respect | 0006| the other's parental rights and responsibilities and ~[his or | 0007| her]~ right to privacy; | 0008| (6) the suitability of a parenting plan for | 0009| the implementation of joint custody, preferably, although not | 0010| necessarily, one arrived at through parental agreement; | 0011| (7) geographic distance between the parents' | 0012| residences; and | 0013| (8) willingness or ability of the parents to | 0014| communicate, cooperate or agree on issues regarding the | 0015| child's needs. | 0016| C. In any proceeding in which the custody of a | 0017| child is at issue, the court shall not prefer one parent as a | 0018| custodian solely because of gender. | 0019| D. In any case in which the parents agree to a | 0020| form of custody, the court should award custody consistent | 0021| with the agreement unless the court determines that such | 0022| agreement is not in the best ~[interest]~ |interests| of the | 0023| child. | 0024| E. In making an order of joint custody, the court | 0025| may specify the circumstances, if any, under which the consent | - 3 - 0001| of both legal custodians is required to be obtained in order | 0002| to exercise legal control of the child and the consequences of | 0003| the failure to obtain mutual consent. | 0004| F. When joint custody is awarded, the court shall | 0005| approve a parenting plan for the implementation of the | 0006| prospective custody arrangement prior to the award of joint | 0007| custody. The parenting plan shall include a division of a | 0008| child's time and care into periods of responsibility for each | 0009| parent. It may also include: | 0010| (1) statements regarding the child's | 0011| religion, education, child care, recreational activities and | 0012| medical and dental care; | 0013| (2) designation of specific decision-making | 0014| responsibilities; | 0015| (3) methods of communicating information | 0016| about the child, transporting the child, exchanging care for | 0017| the child and maintaining telephone and mail contact between | 0018| parent and child; | 0019| (4) procedures for future decision making, | 0020| including procedures for dispute resolution; and | 0021| (5) other statements regarding the welfare of | 0022| the child or designed to clarify and facilitate parenting | 0023| under joint custody arrangements. | 0024| In a case where joint custody is not agreed to or | 0025| necessary aspects of the parenting plan are contested, the | - 4 - 0001| parties shall each submit parenting plans. The court may | 0002| accept the plan proposed by either party or it may combine or | 0003| revise these plans as it deems necessary in the child's best | 0004| ~[interest]~ |interests|. The time of filing of parenting | 0005| plans shall be set by local rule. A plan adopted by the court | 0006| shall be entered as an order of the court. | 0007| G. Where custody is contested, the court shall | 0008| refer that issue to mediation if feasible. The court may also | 0009| use auxiliary services such as professional evaluation by | 0010| application of Rule 706 of the New Mexico rules of evidence or | 0011| Rule 53 of the Rules of Civil Procedure for the District | 0012| ~[court]~ |Courts|. | 0013| H. Notwithstanding any other provisions of law, | 0014| access to records and information pertaining to a minor child, | 0015| including ~[but not limited to]~ medical, dental and school | 0016| records, shall not be denied to a parent because that parent | 0017| is not the child's physical custodial parent or because that | 0018| parent is not a joint custodial parent. | 0019| I. Whenever a request for joint custody is granted | 0020| or denied, the court shall state in its decision its basis for | 0021| granting or denying the request for joint custody. A | 0022| statement that joint custody is or is not in the best | 0023| interests of the child is not sufficient to meet the | 0024| requirements of this subsection. | 0025| J. An award of joint custody means that: | - 5 - 0001| |(1) each parent's ability to mold and | 0002| cultivate a relationship with the child shall not be infringed | 0003| upon unless there is a compelling interest of the child or one | 0004| of the parents;| | 0005| ~[(1)]~ |(2)| each |willing and able| parent | 0006| shall have |liberal|, significant |and| well-defined periods | 0007| of responsibility for the child |pursuant to the following | 0008| minimum guidelines:| | 0009| |(a) for a child less than eighteen | 0010| months of age, each parent shall have an ample opportunity to | 0011| bond with the child. The noncustodial parent shall be awarded | 0012| an occasional overnight visit with the child; | 0013| (b) for a child eighteen months of age | 0014| through the child's attendance in kindergarten classes, each | 0015| parent is entitled to an opportunity to develop and maintain a | 0016| daily relationship with the child. The noncustodial parent | 0017| shall be awarded two overnight visitations per week with the | 0018| child; | 0019| (c) for a child of preschool age, each | 0020| parent's right to care for the child shall take precedence | 0021| over sending the child to daycare or having a third party care | 0022| for the child; | 0023| (d) for a child attending school until | 0024| the child reaches the age of fourteen, each parent shall have | 0025| a timesharing opportunity that allows each parent to fully | - 6 - 0001| participate in the child's school activities, after-school | 0002| activities and homework activities; | 0003| (e) during summer months and school | 0004| breaks, each parent shall have a liberal period of time with | 0005| the child. However, the parents may stipulate otherwise; and | 0006| (f) during major holidays and the | 0007| child's birthday, each parent shall have a period of time with | 0008| the child. During minor holidays, the parents shall annually | 0009| alternate spending those holidays with the child. However, | 0010| the parents may stipulate otherwise|; | 0011| ~[(2)]~ |(3)| each parent shall have, and be | 0012| allowed and expected to carry out, responsibility for the | 0013| child's financial, physical, emotional and developmental needs | 0014| during that parent's periods of responsibility; | 0015| ~[(3)]~ |(4)| the parents shall consult with | 0016| each other on major decisions involving the child before | 0017| implementing those decisions; that is, neither parent shall | 0018| make a decision or take an action which results in a major | 0019| change in a child's life until the matter has been discussed | 0020| with the other parent and the parents agree. If the parents, | 0021| after discussion, cannot agree and if one parent wishes to | 0022| effect a major change while the other does not wish the major | 0023| change to occur, then no change shall occur until the issue | 0024| has been resolved as provided in this subsection; | 0025| ~[(4)]~ |(5)| the following guidelines | - 7 - 0001| ~[shall]~ apply to major changes in a child's life: | 0002| (a) if either parent plans to change | 0003| his home city or state of residence, he shall provide to the | 0004| other parent thirty days' notice in writing stating the date | 0005| and destination of move; | 0006| |(b) there is a rebuttable presumption | 0007| that a proposed long-distance relocation of a child that does | 0008| not accommodate the child's relationship with both parents is | 0009| not in the child's best interests;| | 0010| ~[(b)]~ |(c)| the religious | 0011| denomination and religious activities, or lack thereof, which | 0012| were being practiced during the marriage should not be changed | 0013| unless the parties agree or it has been otherwise resolved as | 0014| provided in this subsection; | 0015| ~[(c)]~ |(d)| both parents shall have | 0016| access to school records, teachers and activities. The type | 0017| of education, public or private, which was in place during the | 0018| marriage should continue, whenever possible, and school | 0019| districts should not be changed unless the parties agree or it | 0020| has been otherwise resolved as provided in this subsection; | 0021| ~[(d)]~ |(e)| both parents shall have | 0022| access to medical and dental treatment providers and records. | 0023| Each parent has authority to make emergency medical decisions. | 0024| Neither parent may contract for major elective medical or | 0025| dental treatment unless both parents agree or it has been | - 8 - 0001| otherwise resolved as provided in this subsection; and | 0002| ~[(e)]~ |(f)| both parents may attend | 0003| the child's public activities and both parents should know the | 0004| necessary schedules. Whatever recreational activities the | 0005| child participated in during the marriage should continue with | 0006| the child's agreement, regardless of which of the parents has | 0007| physical custody. Also, neither parent may enroll the child | 0008| in a new recreational activity unless the parties agree or it | 0009| has been otherwise resolved as provided in this subsection; | 0010| and | 0011| ~[(5)]~ |(6)| decisions regarding major | 0012| changes in a child's life may be decided by: | 0013| (a) agreement between the joint | 0014| custodial parents; | 0015| (b) ~[a requirement]~ |requiring| that | 0016| the parents seek family counseling, conciliation or mediation | 0017| service to assist in resolving their differences; | 0018| (c) agreement by the parents to submit | 0019| the dispute to binding arbitration; | 0020| (d) allocating ultimate responsibility | 0021| for a particular major decision area to one legal custodian; | 0022| (e) terminating joint custody and | 0023| awarding sole custody to one person; | 0024| (f) reference to a master pursuant to | 0025| Rule 53 of the Rules of Civil Procedure for the District | - 9 - 0001| Courts; or | 0002| (g) the district court. | 0003| K. When any person other than a natural or | 0004| adoptive parent seeks custody of a child, no such person shall | 0005| be awarded custody absent a showing of unfitness of the | 0006| natural or adoptive parent. | 0007| L. As used in this section: | 0008| (1) "child" means a person under the age of | 0009| ~[18]~ |eighteen|; | 0010| (2) "custody" means the authority and | 0011| responsibility to make major decisions in a child's best | 0012| ~[interest]~ |interests| in the areas of residence, medical | 0013| and dental treatment, education or child care, religion and | 0014| recreation; | 0015| (3) "joint custody" means an order of the | 0016| court awarding custody of a child to two parents. Joint | 0017| custody does not imply an equal division of the child's time | 0018| between the parents or an equal division of financial | 0019| responsibility for the child; | 0020| (4) "parent" means a natural parent, adoptive | 0021| parent or person who is acting as a parent who has or shares | 0022| legal custody of a child or who claims a right to have or | 0023| share legal custody; | 0024| (5) "parenting plan" means a document | 0025| submitted for approval of the court setting forth the | - 10 - 0001| responsibilities of each parent individually and the parents | 0002| jointly in a joint custody arrangement; | 0003| (6) "period of responsibility" ~[is]~ |means| | 0004| a specified period of time during which a parent is | 0005| responsible for providing for a child's physical, | 0006| developmental and emotional needs, including the decision | 0007| making required in daily living. Specified periods of | 0008| responsibility shall not be changed in an instance or more | 0009| permanently except by the methods of decision making described | 0010| under ~[the definition of joint custody]~ |Subsection J of | 0011| this section|; | 0012| (7) "sole custody" means an order of the | 0013| court awarding custody of a child to one parent; and | 0014| (8) "visitation" ~[is]~ |means| a period of | 0015| time available to a noncustodial parent, under a sole custody | 0016| arrangement, during which a child resides with or is under the | 0017| care and control of the noncustodial parent." | 0018| Section 2. EFFECTIVE DATE.--The effective date of the | 0019| provisions of this act is July 1, 1998. | 0020|  |