New Mexico Custody and Visitation Law
Custody and Visitation for Gay, Lesbian and Bisexual Parents
New Mexico courts typically will not consider a parent’s sexual orientation in custody and visitation determinations unless it is shown to adversely affect or harm the child(ren).
New Mexico law states: “(A) In any case in which a judgment or decree will be entered awarding the custody of a minor, the district court shall, if the minor is under the age of 14, determine custody in accordance with the best interests of the child. The court shall consider all relevant factors including, but not limited to: (1) the wishes of the child’s parent or parents as to his custody; (2) the wishes of the child as to his custodian; (3) the interaction and interrelationship of the child with his parents, his siblings and any other person who may significantly affect the child’s best interest; (4) the child’s adjustment to his home, school and community; and (5) the mental and physical health of all individuals involved. (B) If the minor is 14 years of age or older, the court shall consider the desires of the minor as to with whom he wishes to live before awarding custody of such minor. …
“There shall be a presumption that joint custody 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. 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. In determining whether a joint custody order is in the best interests of the child … 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 against the child, a parent of the child or other household member. If a determination is made that domestic abuse has occurred, 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.”
In a 1992 case, A.C. v. C.B., a same-sex couple had entered into an oral agreement to raise a child as co-parents. After the relationship ended, they entered into an oral settlement agreement. However, the biological mother began restricting the non-biological mother’s visitation, and the non-biological mother petitioned for custody and visitation. The trial (district) court granted the biological mother summary judgment, and the non-biological mother appealed. The appeals court found that the lower court had erred when it found that it could not enforce the agreement because it would not be in the best interests of the child, and did not do an evidentiary hearing. Additionally, the appeals court stated that the sexual orientation of the non-biological mother cannot alone be used as a permissible basis for the denial of shared custody of visitation. The appeals court reaffirmed that how a parent’s sexual activities affect the child is a factual issue that must be considered and resolved on specific evidence and cannot be resolved as a matter of law based on the perceived morality or immorality of the parent’s conduct.
In a 1988 case, State of New Mexico, In the Matter of Jacinta M., the state Department of Human Services appealed a children’s court order that denied the placement of Jacinta with her gay brother. The department argued that the children’s court found the brother to be unsuitable solely on the basis of his sexual orientation. The appeals court found: “There was absolutely no testimony the brother’s sexual orientation would render him unfit to care for the child. … Disapproval of morals or other personal characteristics cannot be used to determine the fitness of a personal to care for a child.”
Custody and Visitation for Transgender Parents
There are no published cases dealing with transgender parents. State law, however, does not seem to permit the consideration of factors that do not affect the best interests of the child to be used in custody and visitation determinations.
Custody and Visitation for Same-Sex Co-Parents
New Mexico courts will allow a former same-sex partner (with no legal or biological relationship to the child(ren)) to petition for visitation. See A.C. v. C.B., described above.
Citations: N.M. STAT. ANN. § 40-4-9.; N.M. STAT ANN. § 40-4-9.1; A.C. v. C.B., 829 P.2d 660 (N.M. Ct. App. 1992); State of New Mexico, In the Matter of Jacinta M., 764 P.2d 1327 (N.M. Ct. App. 1988); A.C. v. C.B., 829 P.2d 660 (N.M. Ct. App. 1992).
The legal information provided on this page is provided as a courtesy to the public. It is not designed to serve as legal advice. HRC does not warrant that this information is current or comprehensive.
Last Updated: 3/20/2007