HOUSE BILL 246
51st legislature - STATE OF NEW MEXICO - first session, 2013
INTRODUCED BY
George Dodge, Jr.
FOR THE MILITARY AND VETERANS' AFFAIRS COMMITTEE
AND THE COURTS, CORRECTIONS AND JUSTICE COMMITTEE
AN ACT
RELATING TO DOMESTIC RELATIONS; ENACTING THE SERVICE MEMBER CHILD CUSTODY ACT; ESTABLISHING PROCEDURES FOR MODIFYING EXISTING CUSTODY, TIME-SHARING OR VISITATION ORDERS FOR CHILDREN OF SERVICE MEMBERS; PROHIBITING ENTRY OF FINAL ORDERS MODIFYING EXISTING CHILD CUSTODY, TIME-SHARING OR VISITATION ORDERS WHILE A SERVICE MEMBER IS UNAVAILABLE PURSUANT TO MILITARY ORDERS; PROHIBITING THE MODIFICATION OF EXISTING CHILD CUSTODY, TIME-SHARING OR VISITATION ORDERS SOLELY BECAUSE A SERVICE MEMBER IS ABSENT OR MIGHT BE ABSENT PURSUANT TO MILITARY ORDERS; PROVIDING FOR A SERVICE MEMBER TO DELEGATE VISITATION RIGHTS; PROVIDING FOR AN EXPEDITED HEARING WHEN A SERVICE MEMBER WILL BE UNAVAILABLE PURSUANT TO MILITARY ORDERS; PROVIDING FOR ELECTRONIC TESTIMONY.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF NEW MEXICO:
SECTION 1. SHORT TITLE.--This act may be cited as the "Service Member Child Custody Act".
SECTION 2. DEFINITIONS.--As used in the Service Member Child Custody Act:
A. "child" means an individual who has not attained eighteen years of age or is not otherwise legally emancipated;
B. "deploying parent" means a military parent who has received written orders to deploy with the United States army, navy, air force, marine corps, coast guard or national guard or a reserve component thereof;
C. "deployment" means military service in compliance with military orders received by a service member to report for combat operations, contingency operations, peacekeeping operations, temporary duty, a remote tour of duty or other active service for which a service member is required to report unaccompanied by any family member; and "deployment" includes a period during which a service member remains subject to deployment orders and remains deployed on account of sickness, wounds, leave or other military cause;
D. "family member" means a person related by blood, adoption or marriage and includes a spouse, child, sibling, parent or grandparent or other person who may significantly affect a child's best interest;
E. "military parent" means a parent who is a service member;
F. "non-deploying parent" means a parent not subject to deployment;
G. "parent" includes a biological or adoptive parent of a child or other person who provides care for a child and may significantly affect the child's best interest;
H. "period of leave" means an authorized absence from military duty; and
I. "service member" means a member of the United States army, navy, air force, marine corps, coast guard or national guard or a member of a reserve component thereof.
SECTION 3. FINAL ORDERS.--
A. A court shall not enter a final order modifying an existing order concerning custody, time-sharing or visitation to which a deploying parent is a party until ninety days after that deploying parent's deployment ends unless all parties stipulate to the entry of a final order.
B. Nothing in this section shall be interpreted to limit the power of a court to conduct a hearing concerning custody, time-sharing or visitation in which a military parent is a party and to issue a temporary order concerning custody, time-sharing or visitation in the best interest of the child until a final order may be issued.
SECTION 4. MODIFICATION OF CUSTODY, TIME-SHARING OR VISITATION--DEPLOYMENT NOT SOLE FACTOR.--Deployment or the potential for future deployment is not in itself a substantial and material change in circumstance affecting the welfare of a child. A court shall not use deployment or the potential for future deployment as the sole factor to modify an existing order concerning custody, time-sharing or visitation.
SECTION 5. TEMPORARY MODIFICATION--LEAVE AND OTHER ACCOMMODATIONS.--
A. A court may issue a temporary order to modify an existing order concerning custody, time-sharing or visitation to which a deploying parent is a party to make reasonable accommodation for the child because of the deploying parent's deployment.
B. A temporary modification order issued pursuant to this section shall provide that:
(1) the deploying parent shall have custody of the child or reasonable time-sharing or visitation, whichever is applicable, pursuant to the existing order concerning child custody or visitation, during a period of leave granted to the deploying parent;
(2) the non-deploying parent shall facilitate telephonic, electronic mail or other communications and contact between the deploying parent and the child during deployment; and
(3) the deploying parent shall provide information regarding the deploying parent's period of leave schedule to the non-deploying parent at least ten days prior to the commencement of the period of leave or within reasonable time if the deploying parent received less than ten days' notice of a period of leave.
C. The non-deploying parent shall make a reasonable effort to afford the deploying parent custody, time-sharing and visitation pursuant to the existing order and parenting plan concerning custody, time-sharing and visitation; provided, however, that the non-deploying parent shall not be obligated to incur a financial burden to facilitate custody, time-sharing and visitation with the deploying parent. A reasonable effort to afford custody, time-sharing and visitation includes facilitation of the transportation of the child within the exterior boundaries of New Mexico and other facilitation for the child to visit with the deploying parent.
D. A court modifying an existing order concerning custody, time-sharing or visitation due to deployment shall specify that the deployment is the basis for the modification and shall enter the order as a temporary order. The court shall require the non-deploying parent to provide the court and the deploying parent with thirty days' advance written notice of any change of address and any change of telephone number, unless a domestic violence order requires that the address or contact information of the non-deploying parent be kept confidential pursuant to the Family Violence Protection Act.
E. Upon motion of a deploying parent notifying the court of imminent deployment, the court shall hold an expedited hearing in the custody, time-sharing or visitation proceeding to which that deploying parent is a party.
SECTION 6. TERMINATION OF TEMPORARY ORDER ISSUED DURING DEPLOYMENT.--
A. Except as provided in Subsection B of this section, a temporary order modifying an existing order concerning custody, time-sharing or visitation during deployment of a military parent shall terminate no later than ten days after the end of the deployment of the military parent. The original terms of the existing order and parenting plan concerning custody, time-sharing or visitation prior to deployment shall be reinstated. The deploying parent shall notify the court and the non-deploying parent, in writing, of the deploying parent's termination of deployment at least fifteen days prior to the termination of deployment. If the address of the non-deploying parent is confidential due to a domestic violence order, the deploying parent shall only notify the court in writing of the deploying parent's termination of deployment.
B. The court shall not terminate the temporary order if either the deploying parent or non-deploying parent files an emergency or expedited motion alleging an immediate danger or irreparable harm to the child if the terms of the existing order concerning custody, time-sharing or visitation is reinstated. The court shall hold a hearing within ten days of the filing of an emergency or expedited motion by either the deploying parent or non-deploying parent alleging an immediate danger of irreparable harm to the child if the terms of the existing order and parenting plan concerning custody, time-sharing and visitation are reinstated.
SECTION 7. DELEGATION OF VISITATION RIGHTS.--
A. Upon motion of a deploying parent, or upon motion of a family member of the deploying parent with the consent of the deploying parent, the court may issue a temporary order to delegate all or a portion of the deploying parent's visitation rights to a family member with a close and substantial relationship to the child for the duration of the deployment if in the best interest of the child. The person to whom delegated visitation rights are granted shall have full legal standing to enforce that temporary order.
B. The delegation of visitation rights or access to the child shall not create an entitlement or standing to assert separate rights to a liberty interest in the care and custody of the child for a person other than a parent. A temporary order delegating the visitation rights of a deploying parent shall terminate by operation of law upon the end of that deploying parent's deployment.
C. A delegation of visitation rights shall not exceed the visitation time granted to the deploying parent under the existing order concerning child custody or visitation, unless the court determines that additional time is required to transport the child.
SECTION 8. TESTIMONY.--
A. In addition to other procedures available to a party, a party to a custody, time-sharing or visitation proceeding involving the child of a service member may offer testimony of witnesses who are located in another state or country, including testimony of the parties and the child, by deposition or other means allowable in this state for testimony taken in another state or country. The court on its own motion may order that the testimony of a person be taken in another state or country and may prescribe the manner in which and the terms upon which the testimony is taken.
B. A court of this state may permit an individual residing in another state or country to be deposed or to testify by telephone, audiovisual means or other electronic means before a designated court or at another location in that state or country. A court of this state shall cooperate with courts of other states or military facilities and courts in other countries in designating an appropriate location for the deposition or testimony.
SECTION 9. NO EXISTING ORDER.--
A. If a military parent has not been issued an order concerning the terms of custody, time-sharing or visitation and it appears that deployment is imminent, upon the filing of initial pleadings and a motion by either the deploying parent or the non-deploying parent notifying the court in the title of the pleading that deployment of a military parent is imminent, the court shall expedite a hearing to establish temporary custody, time-sharing or visitation to ensure that the military parent has access to the child during deployment, to ensure disclosure of information, to grant other rights and duties pursuant to the Service Member Child Custody Act and to provide other appropriate relief.
B. An initial pleading filed to establish custody, time-sharing or visitation for a child of a deploying parent shall be identified at the time of filing by stating in the title of the pleading that the matter concerns a deploying parent, and the pleading shall state the specific facts related to the deployment.
SECTION 10. DUTY TO COOPERATE AND DISCLOSE INFORMATION.--A deploying parent shall provide a copy of the deployment orders to the non-deploying parent promptly and without delay before deployment. Notification shall be made within ten days of the receipt of the deployment orders or notification of a period of leave. If less than ten days' notification is received by the deploying parent, then notification to the non-deploying parent shall be given immediately upon receipt of the deployment orders. If all or part of the orders are classified or restricted as to release, the deploying parent shall provide all nonclassified or nonrestricted information to the non-
deploying parent.
SECTION 11. FAILURE TO EXERCISE TIME-SHARING OR VISITATION RIGHTS.--In determining whether a parent has failed to exercise time-sharing or visitation rights, the court shall not count any time periods during which the military parent did not exercise time-sharing or visitation due to the material effect of that military parent's military duties on time-sharing or visitation time.
SECTION 12. REMOVAL FROM THE STATE.--Once an order for child custody involving the child of a military parent has been entered in this state, any absence of a child from this state during the military parent's deployment shall be designated a "temporary absence" for the purposes of the application of the Uniform Child-Custody Jurisdiction and Enforcement Act. For the duration of the military parent's deployment, this state shall retain exclusive continuing jurisdiction under that act and the non-deploying parent shall not use the non-deploying parent's relocation to another state as a basis to assert inconvenience of the forum under that act.
SECTION 13. EFFECTIVE DATE.--The effective date of the provisions of this act is July 1, 2013.
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