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SENATE BILL 441
57TH LEGISLATURE - STATE OF NEW MEXICO - FIRST SESSION, 2025
INTRODUCED BY
Antoinette Sedillo Lopez and Angel M. Charley
AN ACT
RELATING TO DOMESTIC AFFAIRS; REQUIRING CHILD ABUSE AND
DOMESTIC VIOLENCE ABUSE TRAINING FOR JUDGES AND COURT
PERSONNEL; BROADENING THE STANDARDS FOR THE DETERMINATION OF
CHILD CUSTODY TO INCLUDE EVIDENCE OF CHILD ABUSE OR DOMESTIC
ABUSE; PROHIBITING COURTS FROM ORDERING REUNIFICATION TREATMENT
IN CASES WHERE CUSTODY OR PARENTING PLANS ARE CONTESTED AND
THERE IS EVIDENCE OF CHILD ABUSE OR DOMESTIC ABUSE; PROHIBITING
COURTS FROM ORDERING A PROFESSIONAL EVALUATION IN CASES WHERE
CUSTODY OR PARENTING PLANS ARE CONTESTED AND THERE IS EVIDENCE
OF CHILD ABUSE OR DOMESTIC ABUSE, UNLESS THE PERSON CONDUCTING
THE PROFESSIONAL EVALUATION POSSESSES CERTAIN QUALIFICATIONS
AND EXPERIENCE.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF NEW MEXICO:
SECTION 1. A new section of Chapter 40 NMSA 1978 is
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enacted to read:
"[NEW MATERIAL] FAMILY VIOLENCE TRAINING FOR JUDGES AND
COURT PERSONNEL.--
A. Beginning January 1 2026, and at least annually
thereafter, the administrative office of the courts shall
provide evidence-based ongoing training to judges and court
personnel on domestic abuse.
B. For purposes of this section, "domestic abuse"
means an incident by a household member against another
household member resulting in:
(1) physical harm;
(2) severe emotional distress;
(3) a threat causing imminent fear of physical
harm by any household member;
(4) criminal trespass;
(5) criminal damage to property;
(6) stalking or aggravated stalking, as
provided in Sections 30-3A-3 and 30-3A-3.1 NMSA 1978; or
(7) harassment, as provided in Section 30-3A-2
NMSA 1978."
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
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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;
(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; and
(6) evidence of child abuse or domestic abuse,
including protection orders, arrests or convictions .
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 ]
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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. For purposes of this section:
(1) "child abuse" means:
(a) that a child has been physically,
emotionally or psychologically abused by a parent;
(b) that a child has been: 1) sexually
abused by a parent through criminal sexual penetration, incest
or criminal sexual contact of a minor as those acts are defined
by state law; or 2) sexually exploited by a parent through
allowing, permitting or encouraging the child to engage in
prostitution and allowing, permitting, encouraging or engaging
the child in obscene or pornographic photographing or filming
or depicting a child for commercial purposes as those acts are
defined by state law;
(c) that a child has been knowingly,
intentionally or negligently placed in a situation that may
endanger the child's life or health; or
(d) that a child has been knowingly or
intentionally tortured, cruelly confined or cruelly punished;
provided that nothing in this subparagraph shall be construed
to imply that a child who is or has been provided with
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treatment by spiritual means alone through prayer, in
accordance with the tenets and practices of a recognized church
or religious denomination, by a duly accredited practitioner of
the church or denomination, is for that reason alone a victim
of child abuse within the meaning of this subparagraph; and
(2) "domestic abuse" means an 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."
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.
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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
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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
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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 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. 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. 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 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;
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(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.
G. 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.] H. 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. However, in a case where there is evidence of child
abuse or domestic abuse, a person shall not perform an
evaluation or testify as an expert witness regarding an
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evaluation performed pursuant to this section unless the court
finds that the person is qualified as competent, by training
and experience, in the areas of the effects of domestic abuse
on children, adults and families, including the connection
between domestic abuse and trauma on children. The person's
training and experience shall be provided by recognized sources
with expertise in child abuse or domestic abuse and the
traumatic effects of domestic abuse .
I. In a case where child custody or necessary
aspects of a parenting plan are contested, in which a claim of
domestic abuse has been made to the court, or the court has
reason to believe that a party has committed domestic abuse,
the court shall not order reunification treatment unless there
is generally accepted and scientifically valid proof of the
safety, effectiveness and therapeutic value of the
reunification treatment.
[H.] J. 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.] K. 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
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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.] L. 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
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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
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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.] M. 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.] N. As used in this section:
(1) "child" means a person under the age of
eighteen;
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(2) "child abuse" means:
(a) that a child has been physically,
emotionally or psychologically abused by a parent;
(b) that a child has been: 1) sexually
abused by a parent through criminal sexual penetration, incest
or criminal sexual contact of a minor as those acts are defined
by state law; or 2) sexually exploited by a parent through
allowing, permitting or encouraging the child to engage in
prostitution and allowing, permitting, encouraging or engaging
the child in obscene or pornographic photographing or filming
or depicting a child for commercial purposes as those acts are
defined by state law;
(c) that a child has been knowingly,
intentionally or negligently placed in a situation that may
endanger the child's life or health; or
(d) that a child has been knowingly or
intentionally tortured, cruelly confined or cruelly punished;
provided that nothing in this subparagraph shall be construed
to imply that a child who is or has been provided with
treatment by spiritual means alone through prayer, in
accordance with the tenets and practices of a recognized church
or religious denomination, by a duly accredited practitioner of
the church or denomination, is for that reason alone a victim
of child abuse within the meaning of this subparagraph;
[(2)] (3) "custody" means the authority and
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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)] (4) "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)] (5) "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)] (6) "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;
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[(6)] (7) "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)] (8) "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 ] J of
this section;
(9) "reunification treatment" means a
treatment or therapy aimed at reuniting or reestablishing a
relationship between a child and an estranged or rejected
parent or other family member of the child;
[(8)] (10) "sole custody" means an order of
the court awarding custody of a child to one parent; and
[(9)] (11) "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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