HOUSE BILL 136

49th legislature - STATE OF NEW MEXICO - second session, 2010

INTRODUCED BY

Elias Barela

FOR THE MILITARY AND VETERANS' AFFAIRS COMMITTEE

AN ACT

RELATING TO DOMESTIC RELATIONS; REQUIRING THE STAY OF CHILD CUSTODY PROCEEDINGS WHILE A SERVICE MEMBER IS UNAVAILABLE PURSUANT TO MILITARY ORDERS; PROHIBITING THE AWARD OF CHILD CUSTODY SOLELY BECAUSE A SERVICE MEMBER IS ABSENT PURSUANT TO MILITARY ORDERS; PROVIDING FOR POSSIBLE ABSENCE OF A SERVICE MEMBER IN A PARENTING PLAN.

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

     Section 1. Section 40-4-7 NMSA 1978 (being Laws 1901, Chapter 62, Section 27, as amended) is amended to read:

     "40-4-7. PROCEEDINGS--SPOUSAL SUPPORT--SUPPORT AND CUSTODY OF CHILDREN--DIVISION OF PROPERTY.--

          A. In any proceeding for the dissolution of marriage, division of property, disposition of children or spousal support, the court may make and enforce by attachment or otherwise an order to restrain the use or disposition of the property of either party or for the control of the children or to provide for the support of either party during the pendency of the proceeding, as in its discretion may seem just and proper. The court may make an order, relative to the expenses of the proceeding, as will ensure either party an efficient preparation and presentation of [his] the party's case.

          B. On final hearing, the court:

                (1) may allow either party such a reasonable portion of the spouse's property or such a reasonable sum of money to be paid by either spouse either in a single sum or in installments, as spousal support as under the circumstances of the case may seem just and proper, including a court award of:

                     (a) rehabilitative spousal support that provides the receiving spouse with education, training, work experience or other forms of rehabilitation that increases the receiving spouse's ability to earn income and become self-supporting. The court may include a specific rehabilitation plan with its award of rehabilitative spousal support and may condition continuation of the support upon compliance with that plan;

                     (b) transitional spousal support to supplement the income of the receiving spouse for a limited period of time; provided that the period shall be clearly stated in the court's final order;

                     (c) spousal support for an indefinite duration;

                     (d) a single sum to be paid in one or more installments that specifies definite amounts, subject only to the death of the receiving spouse; or

                     (e) a single sum to be paid in one or more installments that specifies definite amounts, not subject to any contingencies, including the death of the receiving spouse;

                (2) may:

                     (a) modify and change any order in respect to spousal support awarded pursuant to the provisions of Subparagraph (a), (b) or (c) of Paragraph (1) of this subsection whenever the circumstances render such change proper; or

                     (b) designate spousal support awarded pursuant to the provisions of Subparagraph (a) or (b) of Paragraph (1) of this subsection as nonmodifiable with respect to the amount or duration of the support payments;

                (3) may set apart out of the property or income of the respective parties such portion for the maintenance and education of:

                     (a) their unemancipated minor children as may seem just and proper; or

                     (b) their children until the children's graduation from high school if the children are emancipated only by age, are under nineteen and are attending high school; and

                (4) may make such an order for the guardianship, care, custody, maintenance and education of the minor children, or with reference to the control of the property of the respective parties to the proceeding, or with reference to the control of the property decreed or fund created by the court for the maintenance and education of the minor children, as may seem just and proper.

          C. The court may order and enforce the payment of support for the maintenance and education after high school of emancipated children of the marriage pursuant to a written agreement between the parties.

          D. An award of spousal support made pursuant to the provisions of Subparagraph (a), (b), (c) or (d) of Paragraph (1) of Subsection B of this section shall terminate upon the death of the receiving spouse, unless the court order of spousal support provides otherwise.

          E. When making determinations concerning spousal support to be awarded pursuant to the provisions of Paragraph (1) or (2) of Subsection B of this section, the court shall consider:

                (1) the age and health of and the means of support for the respective spouses;

                (2) the current and future earnings and the earning capacity of the respective spouses;

                (3) the good-faith efforts of the respective spouses to maintain employment or to become self-supporting;

                (4) the reasonable needs of the respective spouses, including:

                     (a) the standard of living of the respective spouses during the term of the marriage;

                     (b) the maintenance of medical insurance for the respective spouses; and

                     (c) the appropriateness of life insurance, including its availability and cost, insuring the life of the person who is to pay support to secure the payments, with any life insurance proceeds paid on the death of the paying spouse to be in lieu of further support;

                 (5) the duration of the marriage;

                 (6) the amount of the property awarded or confirmed to the respective spouses;

                 (7) the type and nature of the respective spouses' assets; provided that potential proceeds from the sale of property by either spouse shall not be considered by the court, unless required by exceptional circumstances and the need to be fair to the parties;

                 (8) the type and nature of the respective spouses' liabilities;

                 (9) income produced by property owned by the respective spouses; and

                (10) agreements entered into by the spouses in contemplation of the dissolution of marriage or legal separation.

          F. The court shall retain jurisdiction over proceedings involving periodic spousal support payments when the parties have been married for twenty years or more prior to the dissolution of the marriage, unless the court order or decree specifically provides that no spousal support shall be awarded.

          G. The court may modify and change any order or agreement merged into an order in respect to the guardianship, care, custody, maintenance or education of the children whenever circumstances render such change proper. The court shall stay, in accordance with the federal Servicemembers Civil Relief Act, any petition, motion or pleading to modify or change any order or agreement merged into an order in respect to the guardianship, care, custody, maintenance or education of the child of a service member who is deployed, mobilized or ordered to temporary duty and is unavailable pursuant to military orders.

          H. The district court shall have exclusive jurisdiction of all matters pertaining to the guardianship, care, custody, maintenance and education of the children until the parents' obligation of support for their children terminates. The district court shall also have exclusive, continuing jurisdiction with reference to the property decreed or funds created for the children's maintenance and education."

     Section 2. Section 40-4-9 NMSA 1978 (being Laws 1977, Chapter 172, Section 1) is amended to read:

     "40-4-9. STANDARDS FOR THE DETERMINATION OF CHILD CUSTODY--HEARING.--

          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 fourteen, 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] the child's custody;

                (2) the wishes of the child as to [his] the child's custodian;

                (3) the interaction and interrelationship of the child with [his] the child's parents [his] and siblings and any other person who may significantly affect the child's best [interest] interests;

                (4) the child's adjustment to [his] the child's home, school and community; and

                (5) the mental and physical health of all individuals involved.

          B. If the minor is fourteen years of age or older, the court shall consider the desires of the minor as to with whom [he] the minor wishes to live before awarding custody of [such] the minor.

          C. Whenever testimony is taken from the minor concerning [his] the minor's choice of custodian, the [court] judge shall hold a private hearing in [his] the judge's chambers. The judge shall have a court reporter in [his] the judge's chambers who shall transcribe the hearing; however, the court reporter shall not file a transcript unless an appeal is taken.

          D. With respect to any proceeding in which it is proposed that custody be terminated, the court shall not terminate custody unless there has been a substantial and material change in circumstances affecting the welfare of the child, since entry of the custody order, such that custody is no longer in the best interests of the child. There shall be a presumption that mere absence of a parent due to temporary duty, deployment, activation or mobilization orders received from the military is not in itself a substantial and material change in circumstances affecting the welfare of the child."

     Section 3. Section 40-4-9.1 NMSA 1978 (being Laws 1986, Chapter 41, Section 1, as amended) is amended to read:

     "40-4-9.1. JOINT CUSTODY--STANDARDS FOR DETERMINATION--PARENTING PLAN.--

          A. 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.

          B. In determining whether a joint custody order is in the best interests of the child, in addition to the factors provided in Section 40-4-9 NMSA 1978, 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.

          C. In any proceeding in which the custody of a child is at issue, the court shall not prefer one parent as a custodian solely because of gender.

          D. In any proceeding in which the custody of a child of a service member is at issue, the court shall not prefer one parent as a custodian solely because of past absence or the possibility of future absence due to temporary duty, deployment, activation or mobilization orders received from the military.

          [D.] E. In any case in which the parents agree to a form of custody, the court should award custody consistent with the agreement unless the court determines that such agreement is not in the best interests of the child.

          [E.] F. In making an order of joint custody, the court may specify the circumstances, if any, under which the consent of both legal custodians is required to be obtained in order to exercise legal control of the child and the consequences of the failure to obtain mutual consent.

          [F.] G. When joint custody is awarded, the court shall approve a parenting plan for the implementation of the prospective custody arrangement prior to the award of joint custody. The parenting plan shall include a division of a child's time and care into periods of responsibility for each parent. [It] The parenting plan may also include:

                (1) statements regarding the child's religion, education, child care, recreational activities and medical and dental care;

                (2) designation of specific decision-making responsibilities;

                (3) methods of communicating information about the child, transporting the child, exchanging care for the child and maintaining telephone and mail contact between parent and child;

                (4) procedures for future decision-making, including procedures for dispute resolution; and

                (5) other statements regarding the welfare of the child or designed to clarify and facilitate parenting under joint custody arrangements.

          H. In addition to the requirements of the parenting plan provided in Subsection G of this section, when joint custody is awarded to a parent who is a service member, the parenting plan shall include:

                (1) the designation of temporary alternative periods of responsibility, including arranging for the child's care by others if the service member receives temporary duty, deployment, activation or mobilization orders from the military that limit the capability of providing adequate care for the child during the service member's periods of responsibility or visitation; and

                (2) the return to the periods of responsibility prior to the temporary duty, deployment, activation or mobilization of the service member, or the relinquishment of care for the child back to the service member, within ten days of return from temporary duty, deployment, activation or mobilization.

          I. In a case where joint custody is not agreed to or necessary aspects of the parenting plan are contested, the parties shall each submit parenting plans. The court may accept the plan proposed by either party or it may combine or revise these plans as it deems necessary in the child's best interests. The time of filing of parenting plans shall be set by local rule. A plan adopted by the court shall be entered as an order of the court.

          [G.] J. Where custody is contested, the court shall refer that issue to mediation if feasible. The court may also use auxiliary services such as professional evaluation by application of Rule 706 of the New Mexico Rules of Evidence or Rule 53 of the Rules of Civil Procedure for the District Courts.

          [H.] K. Notwithstanding any other provisions of law, access to records and information pertaining to a minor child, including medical, dental and school records, shall not be denied to a parent because that parent is not the child's physical custodial parent or because that parent is not a joint custodial parent.

          [I.] L. Whenever a request for joint custody is granted or denied, the court shall state in its decision its basis for granting or denying the request for joint custody. A statement that joint custody is or is not in the best interests of the child is not sufficient to meet the requirements of this subsection.

          [J.] M. An award of joint custody means that:

                (1) each parent shall have significant, well-defined periods of responsibility for the child;

                (2) each parent shall have, and be allowed and expected to carry out, responsibility for the child's financial, physical, emotional and developmental needs during that parent's periods of responsibility;

                (3) the parents shall consult with each other on major decisions involving the child before implementing those decisions; that is, neither parent shall make a decision or take an action [which] that results in a major change in a child's life until the matter has been discussed with the other parent and the parents agree. If the parents, after discussion, cannot agree and if one parent wishes to effect a major change while the other does not wish the major change to occur, then no change shall occur until the issue has been resolved as provided in this subsection;

                (4) the following guidelines apply to major changes in a child's life:

                     (a) if either parent plans to change [his] the parent's home city or state of residence, [he] that parent shall provide to the other parent thirty days' notice in writing stating the date and destination of move;

                     (b) the religious denomination and religious activities, or lack thereof, [which] that were being practiced during the marriage should not be changed unless the parties agree or it has been otherwise resolved as provided in this subsection;

                     (c) both parents shall have access to school records, teachers and activities. The type of education, public or private, [which] that was in place during the marriage should continue, whenever possible, and school districts should not be changed unless the parties agree or it has been otherwise resolved as provided in this subsection;

                     (d) both parents shall have access to medical and dental treatment providers and records. Each parent has authority to make emergency medical decisions. Neither parent may contract for major elective medical or dental treatment unless both parents agree or it has been otherwise resolved as provided in this subsection; and

                     (e) both parents may attend the child's public activities and both parents should know the necessary schedules. Whatever recreational activities the child participated in during the marriage should continue with the child's agreement, regardless of which of the parents has physical custody. Also, neither parent may enroll the child in a new recreational activity unless the parties agree or it has been otherwise resolved as provided in this subsection; and

                (5) decisions regarding major changes in a child's life may be decided by:

                     (a) agreement between the joint custodial parents;

                     (b) requiring that the parents seek family counseling, conciliation or mediation service to assist in resolving their differences;

                     (c) agreement by the parents to submit the dispute to binding arbitration;

                     (d) allocating ultimate responsibility for a particular major decision area to one legal custodian;

                     (e) terminating joint custody and awarding sole custody to one person;

                     (f) reference to a master pursuant to Rule 53 of the Rules of Civil Procedure for the District Courts; or

                     (g) the district court.

          [K.] N. When [any] a person other than a natural or adoptive parent seeks custody of a child, no such person shall be awarded custody absent a showing of unfitness of the natural or adoptive parent.

          [L.] O. As used in this section:

                (1) "child" means a person under the age of eighteen;

                (2) "custody" means the authority and responsibility to make major decisions in a child's best interests in the areas of residence, medical and dental treatment, education or child care, religion and recreation;

                (3) "domestic abuse" means any incident by a household member against another household member resulting in:

                     (a) physical harm;

                     (b) severe emotional distress;

                     (c) a threat causing imminent fear of physical harm by any household member;

                     (d) criminal trespass;

                     (e) criminal damage to property;

                     (f) stalking or aggravated stalking, as provided in Sections 30-3A-3 and 30-3A-3.1 NMSA 1978; or

                     (g) harassment, as provided in Section 30-3A-2 NMSA 1978;

                (4) "joint custody" means an order of the court awarding custody of a child to two parents. Joint custody does not imply an equal division of the child's time between the parents or an equal division of financial responsibility for the child;

                (5) "parent" means a natural parent, adoptive parent or person who is acting as a parent who has or shares legal custody of a child or who claims a right to have or share legal custody;

                (6) "parenting plan" means a document submitted for approval of the court setting forth the responsibilities of each parent individually and the parents jointly in a joint custody arrangement;

                (7) "period of responsibility" means a specified period of time during which a parent is responsible for providing for a child's physical, developmental and emotional needs, including the decision-making required in daily living. Specified periods of responsibility shall not be changed in an instance or more permanently except by the methods of decision-making described under Subsection [L] M of this section;

                (8) "service member" means a member of the armed forces of the United States or national guard while serving on active duty;

                [(8)] (9) "sole custody" means an order of the court awarding custody of a child to one parent; and

                [(9)] (10) "visitation" means a period of time available to a noncustodial parent, under a sole custody arrangement, during which a child resides with or is under the care and control of the noncustodial parent."

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