HOUSE BILL 479

53rd legislature - STATE OF NEW MEXICO - first session, 2017

INTRODUCED BY

Sarah Maestas Barnes

AN ACT

RELATING TO CHILD CUSTODY; PROVIDING FOR EMERGENCY ORDERS OF TEMPORARY CUSTODY PENDING FILING OF A PETITION TO ESTABLISH PARENTAGE OR FOR DISSOLUTION OF MARRIAGE.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF NEW MEXICO:

     SECTION 1. A new section of Chapter 40 NMSA 1978 is enacted to read:

     "[NEW MATERIAL] EX PARTE EMERGENCY ORDERS OF TEMPORARY CUSTODY.--

          A. The district court may issue an ex parte emergency order of temporary custody on the verified petition of a parent.

          B. The verified petition shall set forth the grounds for the emergency order of temporary custody, including:

                (1) the full name, address and telephone number of the petitioner;

                (2) the full name, address and telephone number of the respondent, who is the person alleged to have physical possession of the child or children;

                (3) the full names and birth dates of each child for whom emergency temporary custody is sought;

                (4) the marital status of the parties;

                (5) an affirmative statement that there is no other court order or pending court proceeding to determine custody;

                (6) an affirmative statement that the parents do not reside together and a brief description of the history of the parents' residential arrangements during the child's lifetime;

                (7) an affirmative statement that each child for whom emergency temporary custody is sought spends the majority of the child's time with the petitioner;

                (8) a brief description of the events precipitating the filing of the petition for emergency order of temporary custody; and

                (9) an affirmative statement that the petitioner will file a petition to establish parentage or a petition for dissolution of marriage not later than three business days after filing the petition for emergency order of temporary custody.

          C. An emergency order of temporary custody shall include the term and conditions of the temporary custody.

          D. In addition to granting an emergency order of temporary custody, the court may:

                (1) enjoin the respondent from threatening to commit or committing acts of domestic abuse against the petitioner or any designated household members; and

                (2) enjoin the respondent from any contact with the petitioner, including harassing, telephoning, contacting or otherwise communicating with the petitioner.

          E. Upon the entry of an emergency order of temporary custody, the court shall:

                (1) cause the emergency order of temporary custody together with notice of hearing to be served immediately on the respondent; and

                (2) within ten days after the granting of the emergency order of temporary custody, hold a hearing on the question of continuing the order; provided that, if notice of the hearing cannot be served within seventy-two hours, the emergency order of temporary custody shall be automatically extended for ten days.

          F. If the petition for emergency order of temporary custody is not granted, the court shall serve notice to appear upon the parties and hold a hearing on the petition not less than seventy-two hours or more than ten days after the filing of the petition.

          G. A district judge shall be available as determined by each judicial district to hear petitions for emergency orders of temporary custody.

          H. An emergency order of temporary custody shall remain in effect until the hearing on the merits of the petition for an emergency order of temporary custody; provided that, if the petitioner fails to file a petition to establish paternity within three days of filing the petition for emergency order of temporary custody, the emergency order of temporary custody shall expire immediately.

          I. The respondent may appeal the issuance of an emergency order of temporary custody to the court that issued the order. An appeal may be heard as soon as the next judicial day following the issuance of the order; provided that:

                (1) the respondent has provided the petitioner a copy of the appeal; and

                (2) the petitioner has been personally served with the notice of the appeal hearing.

          J. A law enforcement officer who receives an emergency order of temporary custody from the court or from the petitioner, whether in writing, by telephone or by facsimile transmission, shall:

                (1) if possible, immediately serve a signed copy of the order on the respondent; and

                (2) retrieve the children from the respondent and return them to the petitioner."

- 5 -