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EspañolWhere can I file for child custody? (Which state has jurisdiction?)
Generally, you can file for custody only in the “home state” of the child. (There are exceptions to the “home state” rule – see below.)
The “home state” is the state where the child has lived with a parent or a person acting as a parent for at least six consecutive months. If your child is less than six months old, the “home state” is the state where the child has lived from birth. (Temporary absence from the state does not change anything.)
If you and your child recently moved to a new state, you usually cannot file for custody in that new state until you have lived there for at least six months. Until then, the other parent can start a custody action in the state where your child most recently lived for at least six months.1
There are exceptions to the “home state rule.” In some cases, you can file for custody in a state where the child and at least one parent have “significant connections,” and where there is evidence available about the child’s care, protection, training, and personal relationships. Usually, however, you can only do this if there is no home state or if the home state has agreed to let another state decide the case (have jurisdiction).2 This can be complicated, and if you think this applies to your situation, please talk to a lawyer in both states about this.
1 N.M. Stat. § 40-10A-201(a)(1)
2 N.M. Stat. § 40-10A-201(a)(2)
What are the steps for filing for custody?
Before filing in court for custody, you may want to consider drawing up an out-of-court agreement with the other parent. Usually parents will have to be flexible when it comes to custody and visitation for the benefit of the child. Often times, parents who fight for sole custody will litigate in court for months or even years and end up with some sort of joint custody agreement after settlement or trial. However, sometimes fighting for sole custody is necessary because you can’t agree with the other parent, the other parent is not allowing contact, or your fear for your child’s well-being. Especially with domestic violence, many abusers will try to keep power and control over the victim-survivor through the child, so joint custody isn’t recommended due to the power difference in the relationship.
If you decide to file in court for custody, although custody laws vary by state, the process usually looks similar to this:
1. File for custody. Depending on the state, you may file in the family court or a court of a different name that hears custody cases. Generally, you will file in the county where the child lives and, depending on the circumstances, you may be able to request an emergency or temporary order as part of your petition. The exact petition you file may depend on whether you are married or not:
- If you are a married parent who is also filing for divorce, you can usually include the custody petition within the divorce or legal separation process.1
- If you are a married parent who is not filing for divorce, you can file for custody on its own.2
- If you are an unmarried parent, you can also seek custody in court.2 However, if paternity hasn’t been established, which means that the father hasn’t been legally recognized, then this process will likely have to happen first or as part of the custody process.
2. Prepare for the custody process
The court custody process is usually very long and can be emotionally and financially draining. If you are representing yourself in court, you can learn about the court process and how to present evidence on our Preparing for Court – By Yourself section. If you are able to hire an attorney, you can use this list of questions as your guide when deciding who to hire.
During the court process, you will try to prove why you should have your child’s custody. When preparing for court, you can gather evidence that helps make your case as to why you should have custody of the child. This process should be directed by the factors the law says a judge should consider when deciding custody. You can see How will a judge make a decision about custody? for more information. It’s important to consider that the judge will be focused on what is in the best interest of your child and many states consider that this is to have a relationship with both parents.
3. Prepare for trial
There will be one or more hearings, including a trial, if the parties cannot reach an agreement by themselves or as part of a mediation process. During trial, you or your attorney will be able to present evidence and to cross-examine the other party to help the judge make a decision.
If you are a victim of domestic violence, you can plan for your safety while in court and you should ask the judge to include some protections in the custody order. For example, you can ask for some of the following terms:
- communications between the parents can only be in writing;
- all communications can only be related to the child; and
- a neutral third party should be present at the exchange of the child or should be the one to drop off and pick up the child.
You should also try to be as specific as possible in terms of the decision-making powers of each parent, who has the child on holidays, birthdays, etc., and the time and place for pick-ups and drop-offs of the child as to avoid future conflicts.
4. Options if you lose the custody case
There could be a couple of options that are filed immediately after the judge makes the custody order:
- A motion for reconsideration asks the judge to decide differently based on the law or new evidence.
- An appeal moves the case to a higher court and asks that court to review the lower court’s decision due a judge’s error.
A petition to change (modify) the order is an option that would not be filed right away. You could ask for a modification if, later on, a substantial change of circumstances happens. A few examples could be if the other parent gets sent to jail, gets charged with child abuse or neglect, or moves to another state.
You can also watch our Custody, Visitation, and Child Support videos where we explain the process. The videos include information about the different types of custody and visitation and related legal concepts that a judge will consider, child support, and moving out of state with your child.
1 N.M. Stat. § 40-4-7(B)(4)
2 N.M. Stat. § 40-4-3
Should I start a court case to ask to participate in the Safe Exchange & Supervised Visitation program?
If you are uncomfortable with the abuser being alone with your child or if you feel unsafe when exchanging the child for visitation, you may request the services of the Safe Exchange & Supervised Visitation (SESV) program. The judge can appoint an SESV program to:
- stay with the child for a short period of time while waiting to be picked up by the other parent; or
- supervise visits between the parent(s) and child.1
The judge will order the participation in the SESV program if s/he believes it is in the best interest of the child. If ordered, both parents may have to pay the cost of this program on a sliding fee scale that is based on their ability to pay for the service.2
However, if there is no current court case, please get legal advice before you start a court case to ask for a safe exchange or supervised visitation. We strongly recommend that you talk to an attorney who specializes in custody matters to find out what you would have to prove to get the visits supervised and how long supervised visits would last, based on the facts of your case.
In the majority of cases, these safety measures are only temporary. Although the exact visitation order will vary by state, county, or judge, the judge might order a professional to observe the other parent during a certain amount of visits and if there are no obvious problems, the visits may likely become unsupervised. Oftentimes, at the end of a case, the other parent ends up with more frequent and/or longer visits than s/he had before you went into court or even some form of custody.
To find out what may be best in your situation, please go to NM Finding a Lawyer to seek out legal advice.
1 N.M. Stat. § 40-12-5.1(A)
2 N.M. Stat. § 40-12-5.1(C)
Do I need a lawyer?
You do not need a lawyer to file for custody. However, it may be difficult for you to file a proper petition and represent yourself in court without the help of a lawyer. Also, if the other parent has a lawyer, it will be particularly helpful if you have a lawyer as well. For legal referrals, go to NM Finding a Lawyer.
If you are going to be in court without a lawyer, our Preparing for Court – By Yourself section may be useful to you.
Do I have to go to mediation even if I am a domestic violence victim?
In New Mexico, if one of the parties tells the judge that domestic violence or child abuse has occurred, or if the judge thinks that it has occurred, then the judge does not have to order mediation. In situations where there is domestic violence, the judge can order mediation if:
- the domestic violence victim is the one who requests mediation and the mediator is informed of the domestic violence; or
- all of the following three things happen:
- the mediator has substantial training on domestic violence or child abuse;
- the victim is able to negotiate with the abuser without suffering from an imbalance of power as a result of the abuser; and
- the mediation process has safeguards in place to protect against an imbalance in power caused by abuse.1
1 N.M. Stat. § 40-4-8(B)(1)(a)-(b)
Can I get financial support for my children?
Both parents have a shared responsibility to support their children.1 So, the parent who has a child under his/her care can request child support. You can find more information in our New Mexico Child Support section.
1 N.M. Stat. § 40-15-4
