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Legal Information: New Mexico

Statutes: New Mexico

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Statutes: New Mexico

Updated: 
January 5, 2024

Current through effective July 1, 2023 of the 2023 First Regular Session of the 56th Legislature (2023). To check that there have been no changes since this time, you can go to the New Mexico Compilation Commission website.

Chapter 29. Law Enforcement

Updated: 
January 5, 2024

Article 19. Concealed Handgun Carry Act

Updated: 
January 5, 2024

29-19-4. Applicant qualifications

Updated: 
January 5, 2024

A. The department shall issue a concealed handgun license to an applicant who:

(1) is a citizen of the United States;

(2) is a resident of New Mexico or is a member of the armed forces whose permanent duty station is located in New Mexico or is a dependent of such a member;

(3) is twenty-one years of age or older;

(4) is not a fugitive from justice;

(5) has not been convicted of a felony in New Mexico or any other state or pursuant to the laws of the United States or any other jurisdiction;

(6) is not currently under indictment for a felony criminal offense in New Mexico or any other state or pursuant to the laws of the United States or any other jurisdiction;

(7) is not otherwise prohibited by federal law or the law of any other jurisdiction from purchasing or possessing a firearm;

(8) has not been adjudicated mentally incompetent or committed to a mental institution;

(9) is not addicted to alcohol or controlled substances; and

(10) has satisfactorily completed a firearms training course approved by the department for the category and the largest caliber of handgun that the applicant wants to be licensed to carry as a concealed handgun.

B. The department shall deny a concealed handgun license to an applicant who has:

(1) received a conditional discharge, a diversion or a deferment or has been convicted of, pled guilty to or entered a plea of nolo contendere to a misdemeanor offense involving a crime of violence within ten years immediately preceding the application;

(2) been convicted of a misdemeanor offense involving driving while under the influence of intoxicating liquor or drugs within five years immediately preceding the application for a concealed handgun license;

(3) been convicted of a misdemeanor offense involving the possession or abuse of a controlled substance within ten years immediately preceding the application; or

(4) been convicted of a misdemeanor offense involving assault, battery or battery against a household member.

C. Firearms training course instructors who are approved by the department shall not be required to complete a firearms training course pursuant to Paragraph (10) of Subsection A of this section.

Chapter 30. Criminal Offenses

Updated: 
January 5, 2024

Article 1. General Provisions

Updated: 
January 5, 2024

30-1-15 Alleged victims of domestic abuse, stalking or sexual assault; forbearance of costs

Updated: 
January 5, 2024

A. An alleged victim of an offense specified in Subsection B of this section is not required to bear the cost of:

(1) filing a criminal charge against an alleged perpetrator of the offense;

(2) the issuance or service of a warrant;

(3) the issuance or service of a witness subpoena; or

(4) the issuance or service of a protection order.

B. The provisions of Subsection A of this section apply to alleged victims of domestic abuse as defined in Section 40-13-2 NMSA 1978 and:

(1) sexual offenses described in Sections 30-9-11 through 30-9-14 and 30-9-14.3 NMSA 1978;

(2) crimes against household members described in Sections 30-3-12 through 30-3-16 NMSA 1978;

(3) harassment, stalking and aggravated stalking described in Sections 30-3A-2 through 30-3A-3.1 NMSA 1978; and

(4) the violation of an order of protection described in Subsection E of Section 40-13-6 NMSA 1978.


Article 3. Assault and Battery

Updated: 
January 5, 2024

§ 30-3-15. Battery against a household member

Updated: 
January 5, 2024

A. Battery against a household member consists of the unlawful, intentional touching or application of force to the person of a household member, when done in a rude, insolent or angry manner.

B. Whoever commits battery against a household member is guilty of a misdemeanor.

C. Upon conviction pursuant to this section, an offender shall be required to participate in and complete a domestic violence offender treatment or intervention program approved by the children, youth and families department pursuant to rules promulgated by the department that define the criteria for such programs.

D. Notwithstanding any provision of law to the contrary, if a sentence imposed pursuant to this section is suspended or deferred in whole or in part, the period of probation may extend beyond three hundred sixty-four days but may not exceed two years. If an offender violates a condition of probation, the court may impose any sentence that the court could originally have imposed and credit shall not be given for time served by the offender on probation; provided that the total period of incarceration shall not exceed three hundred sixty-four days and the combined period of incarceration and probation shall not exceed two years.

§ 30-3-18. Criminal damage to property of household member; deprivation of property of household member

Updated: 
January 5, 2024

A. Criminal damage to the property of a household member consists of intentionally damaging real, personal, community or jointly owned property of a household member with the intent to intimidate, threaten or harass that household member.

B. Whoever commits criminal damage to the property of a household member is guilty of a misdemeanor, except that when the damage to the household member’s interest in the property amounts to more than one thousand dollars ($1,000), the offender is guilty of a fourth degree felony.

C. Deprivation of the property of a household member consists of intentionally depriving a household member of the use of separate, community or jointly owned personal property of the household member with the intent to intimidate or threaten that household member.

D. Whoever commits deprivation of the property of a household member is guilty of a misdemeanor.

Article 3A. Harassment and Stalking

Updated: 
January 5, 2024

30-3A-1 Short title.

Updated: 
January 5, 2024

Chapter 30, Article 3A NMSA 1978 may be cited as the “Harassment and Stalking Act”.

30-3A-2 Harassment; penalties.

Updated: 
January 5, 2024

A. Harassment consists of knowingly pursuing a pattern of conduct that is intended to annoy, seriously alarm or terrorize another person and that serves no lawful purpose. The conduct must be such that it would cause a reasonable person to suffer substantial emotional distress.

B. Whoever commits harassment is guilty of a misdemeanor.

30-3A-3 Stalking; penalties.

Updated: 
January 5, 2024

A. Stalking consists of knowingly pursuing a pattern of conduct, without lawful authority, directed at a specific individual when the person intends that the pattern of conduct would place the individual in reasonable apprehension of death, bodily harm, sexual assault, confinement or restraint of the individual or another individual.

B. As used in this section:

(1) “lawful authority” means within the scope of lawful employment or constitutionally protected activity; and

(2) “pattern of conduct” means two or more acts, on more than one occasion, in which the alleged stalker by any action, method, device or means, directly, indirectly or through third parties, follows, monitors, surveils, threatens or communicates to or about a person.

C. Whoever commits stalking is guilty of a misdemeanor. Upon a second or subsequent conviction, the offender is guilty of a fourth degree felony.

D. In addition to any punishment provided pursuant to the provisions of this section, the court shall order a person convicted of stalking to participate in and complete a program of professional counseling at the person’s own expense or a domestic violence offender treatment or intervention program.

30-3A-3.1 Aggravated stalking; penalties.

Updated: 
January 5, 2024

A. Aggravated stalking consists of stalking perpetrated by a person:

(1) who knowingly violates a permanent or temporary order of protection issued by a court, except that mutual violations of such orders may constitute a defense to aggravated stalking;

(2) in violation of a court order setting conditions of release and bond;

(3) when the person is in possession of a deadly weapon; or

(4) when the victim is less than sixteen years of age.

B. Whoever commits aggravated stalking is guilty of a fourth degree felony. Upon a second or subsequent conviction, the offender is guilty of a third degree felony.

C. In addition to any punishment provided pursuant to the provisions of this section, the court shall order a person convicted of aggravated stalking to participate in and complete a program of professional counseling at his own expense.

30-3A-4 Exceptions.

Updated: 
January 5, 2024

The provisions of the [Harassment and] Stalking Act [30-3A-1 to 30-3A-4 NMSA 1978] do not apply to:

A. picketing or public demonstrations that are lawful or that arise out of a bona fide labor dispute; or

B. a peace officer in the performance of his duties.

Article 4. Kidnapping

Updated: 
January 5, 2024

30-4-4. Custodial interference; penalties

Updated: 
January 5, 2024

A. As used in this section:

(1) “child” means an individual who has not reached his eighteenth birthday;

(2) “custody determination” means a judgment or order of a court of competent jurisdiction providing for the custody of a child, including visitation rights;

(3) “person” means any individual or legal entity, whether incorporated or unincorporated, including the United States, the state of New Mexico or any subdivision thereof;

(4) “physical custody” means actual possession and control of a child; and

(5) “right to custody” means the right to physical custody or visitation of a child arising from:

(a) a parent-child relationship between the child and a natural or adoptive parent absent a custody determination; or

(b) a custody determination.

B. Custodial interference consists of any person, having a right to custody of a child, maliciously taking, detaining, concealing or enticing away or failing to return that child without good cause and with the intent to deprive permanently or for a protracted time another person also having a right to custody of that child of his right to custody. Whoever commits custodial interference is guilty of a fourth degree felony.

C. Unlawful interference with custody consists of any person, not having a right to custody, maliciously taking, detaining, concealing or enticing away or failing to return any child with the intent to detain or conceal permanently or for a protracted time that child from any person having a right to custody of that child. Whoever commits unlawful interference with custody is guilty of a fourth degree felony.

D. Violation of Subsection B or C of this section is unlawful and is a fourth degree felony.

E. A peace officer investigating a report of a violation of this section may take a child into protective custody if it reasonably appears to the officer that any person will flee with the child in violation of Subsection B or C of this section. The child shall be placed with the person whose right to custody of the child is being enforced, if available and appropriate, and, if not, in any of the community-based shelter care facilities as provided for in Section 32-1-25.1 NMSA 1978.

F. Upon recovery of a child a hearing by the civil court currently having jurisdiction or the court to which the custody proceeding is assigned, shall be expeditiously held to determine continued custody.

G. A felony charge brought under this section may be dismissed if the person voluntarily returns the child within fourteen days after taking, detaining or failing to return the child in violation of this section.

H. The offenses enumerated in this section are continuous in nature and continue for so long as the child is concealed or detained.

I. Any defendant convicted of violating the provisions of this section may be assessed the following expenses and costs by the court, with payments to be assigned to the respective person or agency:

(1) any expenses and costs reasonably incurred by the person having a right to custody of the child in seeking return of that child; and

(2) any expenses and costs reasonably incurred for the care of the child while in the custody of the human services department.

J. Violation of the provisions of this section is punishable in New Mexico, whether the intent to commit the offense is formed within or outside the state, if the child was present in New Mexico at the time of the taking.

Article 7. Weapons and Explosives

Updated: 
January 5, 2024

30-7-16 Firearms or destructive devices; receipt, transportation or possession by a felon; penalty

Updated: 
January 5, 2024

A. It is unlawful for the following persons to receive, transport or possess a firearm or destructive device in this state:

(1) a felon;

(2) a person subject to an order of protection pursuant to Section 40-13-5 or 40-13A-5 NMSA 1978; or

(3) a person convicted of any of the following crimes:

(a) battery against a household member pursuant to Section 30-3-15 NMSA 1978;

(b) criminal damage to property of a household member pursuant to Section 30-3-18 NMSA 1978;

(c) a first offense of stalking pursuant to Section 30-3A-3 NMSA 1978; or

(d) a crime listed in 18 U.S.C. 921.

B. A felon found in possession of a firearm shall be guilty of a third degree felony.

C. A serious violent felon that is found to be in possession of a firearm shall be guilty of a third degree felony, and notwithstanding the provisions of Section 31-18-15 NMSA 1978, shall be sentenced to a basic term of six years imprisonment.

D. Any person subject to an order of protection pursuant to Section 40-13-5 or 40-13A-5 NMSA 1978 or convicted of a crime listed in Paragraph (3) of Subsection A of this section who receives, transports or possesses a firearm or destructive device is guilty of a misdemeanor.

E. As used in this section:

(1) except as provided in Paragraph (2) of this subsection, “destructive device” means:

(a) any explosive, incendiary or poison gas: 1) bomb; 2) grenade; 3) rocket having a propellant charge of more than four ounces; 4) missile having an explosive or incendiary charge of more than one-fourth ounce; 5) mine; or 6) similar device;

(b) any type of weapon by whatever name known that will, or that may be readily converted to, expel a projectile by the action of an explosive or other propellant, the barrel or barrels of which have a bore of more than one-half inch in diameter, except a shotgun or shotgun shell that is generally recognized as particularly suitable for sporting purposes; or

(c) any combination of parts either designed or intended for use in converting any device into a destructive device as defined in this paragraph and from which a destructive device may be readily assembled;

(2) the term “destructive device” does not include any device that is neither designed nor redesigned for use as a weapon or any device, although originally designed for use as a weapon, that is redesigned for use as a signaling, pyrotechnic, line throwing, safety or similar device;

(3) “felon” means a person convicted of a felony offense by a court of the United States or of any state or political subdivision thereof and:

(a) less than ten years have passed since the person completed serving a sentence or period of probation for the felony conviction, whichever is later;

(b) the person has not been pardoned for the felony conviction by the proper authority; and

(c) the person has not received a deferred sentence;

(4) “firearm” means any weapon that will or is designed to or may readily be converted to expel a projectile by the action of an explosion or the frame or receiver of any such weapon; and

(5) “serious violent felon” means a person convicted of an offense enumerated in Subparagraphs (a) through (n) of Paragraph (4) of Subsection L of Section 33-2-34 NMSA 1978; provided that:

(a) less than ten years have passed since the person completed serving a sentence or a period of probation for the felony conviction, whichever is later;

(b) the person has not been pardoned for the felony conviction by the proper authority; and

(c) the person has not received a deferred sentence and completed the total term of deferment as provided in Section 31-20-9 NMSA 1978.

Article 9. Sexual Offenses

Updated: 
January 5, 2024

30-9-11. Criminal sexual penetration

Updated: 
January 5, 2024
A. Criminal sexual penetration is the unlawful and intentional causing of a person to engage in sexual intercourse, cunnilingus, fellatio or anal intercourse or the causing of penetration, to any extent and with any object, of the genital or anal openings of another, whether or not there is any emission.
B. Criminal sexual penetration does not include medically indicated procedures.
C. Aggravated criminal sexual penetration consists of all criminal sexual penetration perpetrated on a child under thirteen years of age with an intent to kill or with a depraved mind regardless of human life. Whoever commits aggravated criminal sexual penetration is guilty of a first degree felony for aggravated criminal sexual penetration.
D. Criminal sexual penetration in the first degree consists of all criminal sexual penetration perpetrated:
(1) on a child under thirteen years of age; or
(2) by the use of force or coercion that results in great bodily harm or great mental anguish to the victim.
Whoever commits criminal sexual penetration in the first degree is guilty of a first degree felony.
E. Criminal sexual penetration in the second degree consists of all criminal sexual penetration perpetrated:
(1) by the use of force or coercion on a child thirteen to eighteen years of age;
(2) on an inmate confined in a correctional facility or jail when the perpetrator is in a position of authority over the inmate;
(3) by the use of force or coercion that results in personal injury to the victim;
(4) by the use of force or coercion when the perpetrator is aided or abetted by one or more persons;
(5) in the commission of any other felony; or
(6) when the perpetrator is armed with a deadly weapon.
Whoever commits criminal sexual penetration in the second degree is guilty of a second degree felony. Whoever commits criminal sexual penetration in the second degree when the victim is a child who is thirteen to eighteen years of age is guilty of a second degree felony for a sexual offense against a child and, notwithstanding the provisions of Section 31-18-15 NMSA 1978, shall be sentenced to a minimum term of imprisonment of three years, which shall not be suspended or deferred. The imposition of a minimum, mandatory term of imprisonment pursuant to the provisions of this subsection shall not be interpreted to preclude the imposition of sentencing enhancements pursuant to the provisions of the Criminal Sentencing Act.
F. Criminal sexual penetration in the third degree consists of all criminal sexual penetration perpetrated through the use of force or coercion not otherwise specified in this section.
Whoever commits criminal sexual penetration in the third degree is guilty of a third degree felony.
G. Criminal sexual penetration in the fourth degree consists of all criminal sexual penetration:
(1) not defined in Subsections D through F of this section perpetrated on a child thirteen to sixteen years of age when the perpetrator is at least eighteen years of age and is at least four years older than the child and not the spouse of that child; or
(2) perpetrated on a child thirteen to eighteen years of age when the perpetrator, who is a licensed school employee, an unlicensed school employee, a school contract employee, a school health service provider or a school volunteer, and who is at least eighteen years of age and is at least four years older than the child and not the spouse of that child, learns while performing services in or for a school that the child is a student in a school.
Whoever commits criminal sexual penetration in the fourth degree is guilty of a fourth degree felony.

30-9-20. Voyeurism prohibited; penalties

Updated: 
January 5, 2024

A. Voyeurism consists of intentionally using the unaided eye to view or intentionally using an instrumentality to view, photograph, videotape, film, webcast or record the intimate areas of another person without the knowledge and consent of that person:

(1) while the person is in the interior of a bedroom, bathroom, changing room, fitting room, dressing room or tanning booth or the interior of any other area in which the person has a reasonable expectation of privacy; or

(2) under circumstances where the person has a reasonable expectation of privacy, whether in a public or private place.

B. Whoever commits voyeurism is guilty of a misdemeanor, except if the victim is less than eighteen years of age, the offender is guilty of a fourth degree felony.

C. As used in this section:

(1) “intimate areas” means the primary genital area, groin, buttocks, anus or breasts or the undergarments that cover those areas; and

(2) “instrumentality” means a periscope, telescope, binoculars, camcorder, computer, motion picture camera, digital camera, telephone camera, photographic camera or electronic device of any type.

Article 16. Larceny

Updated: 
January 5, 2024

30-16-24.1 Theft of identity; obtaining identity by electronic fraud

Updated: 
January 5, 2024

A. Theft of identity consists of willfully obtaining, recording or transferring personal identifying information of another person without the authorization or consent of that person and with the intent to defraud that person or another or with the intent to sell or distribute the information to another for an illegal purpose.

B. Obtaining identity by electronic fraud consists of knowingly and willfully soliciting, requesting or taking any action by means of a fraudulent electronic communication with intent to obtain the personal identifying information of another.

C. As used in this section:

(1) “fraudulent electronic communication” means a communication by a person that is an electronic mail message, web site or any other use of the internet that contains fraudulent, false, fictitious or misleading information that depicts or includes the name, logo, web site address, email address, postal address, telephone number or any other identifying information of a business, organization or state agency, to which the person has no legitimate claim of right;

(2) “personal identifying information” means information that alone or in conjunction with other information identifies a person, including the person’s name, address, telephone number, driver’s license number, social security number, date of birth, biometric data, place of employment, mother’s maiden name, demand deposit account number, checking or savings account number, credit card or debit card number, personal identification number, electronic identification code, automated or electronic signature, passwords or any other numbers or information that can be used to obtain access to a person’s financial resources, obtain identification, act as identification or obtain goods or services; and

(3) “biometric data” means data, such as finger, voice, retina or iris prints or deoxyribonucleic acid, that capture, represent or enable the reproduction of unique physical attributes of a person.

D. Whoever commits theft of identity is guilty of a fourth degree felony.

E. Whoever commits obtaining identity by electronic fraud is guilty of a fourth degree felony.

F. Prosecution pursuant to this section shall not prevent prosecution pursuant to any other provision of the law when the conduct also constitutes a violation of that other provision.

G. In a prosecution brought pursuant to this section, the theft of identity or obtaining identity by electronic fraud shall be considered to have been committed in the county:

(1) where the person whose identifying information was appropriated, obtained or sought resided at the time of the offense; or

(2) in which any part of the offense took place, regardless of whether the defendant was ever actually present in the county.

H. A person found guilty of theft of identity or of obtaining identity by electronic fraud shall, in addition to any other punishment, be ordered to make restitution for any financial loss sustained by a person injured as the direct result of the offense. In addition to out-of-pocket costs, restitution may include payment for costs, including attorney fees, incurred by that person in clearing the person’s credit history, credit rating, criminal history or criminal charges or costs incurred in connection with a legal proceeding to satisfy a debt, lien, judgment or other obligation of that person arising as a result of the offense.

I. The sentencing court shall issue written findings of fact and may issue orders as are necessary to correct public records and errors in credit reports and identifying information that contain false information as a result of the theft of identity or of obtaining identity by electronic fraud.

Article 20. Crimes Against Public Peace

Updated: 
January 5, 2024

30-20-12. Use of telephone to terrify, intimidate, threaten, harass, annoy or offend; penalty

Updated: 
January 5, 2024

A. It shall be unlawful for any person, with intent to terrify, intimidate, threaten, harass, annoy or offend, to telephone another and use any obscene, lewd or profane language or suggest any lewd, criminal or lascivious act, or threaten to inflict injury or physical harm to the person or property of any person. It shall also be unlawful for any person to attempt by telephone to extort money or other thing of value from any other person, or to otherwise disturb by repeated anonymous telephone calls the peace, quiet or right of privacy of any other person at the place where the telephone call or calls were received, or to maliciously make a telephone call, whether or not conversation ensues, with intent to annoy or disturb another, or to disrupt the telecommunications of another.

B. The use of obscene, lewd or profane language or the making of a threat or statement as set forth in Subsection A shall be prima facie evidence of intent to terrify, intimidate, threaten, harass, annoy or offend.

C. Any offense committed by use of a telephone as set forth in this section shall be deemed to have been committed at either the place where the telephone call or calls originated or at the place where the telephone call or calls were received.

D. Whosoever violates this section is guilty of a misdemeanor, unless such person has previously been convicted of such offense or of an offense under the laws of another state or of the United States which would have been an offense under this section if committed in this state, in which case such person is guilty of a fourth degree felony.

Article 37A. Unauthorized Distribution of Sensitive Images

Updated: 
January 5, 2024

30-37A-1. Unauthorized distribution of sensitive images; penalties

Updated: 
January 5, 2024

A. Unauthorized distribution of sensitive images consists of distributing, publishing or otherwise making available, by an electronic communications device or other means, sensitive images of a person, with or without information identifying that person, without that person’s consent:

(1) with the intent to:

(a) harass, humiliate or intimidate that person;

(b) incite another to harass, humiliate or intimidate that person;

(c) cause that person to reasonably fear for that person’s own or family members’ safety;

(d) cause that person to suffer unwanted physical contact or injury; or

(e) cause that person to suffer substantial emotional distress; and

(2) where the conduct is such that it would cause a reasonable person to suffer substantial emotional distress.

B. For the purpose of this section:

(1) “electronic communications device” means a computer, an internet web site or page, a video recorder, a digital camera, a fax machine, a telephone, a cellular telephone, a pager or any other device that can produce an electronically generated image, message or signal;

(2) “information service” means a service offering the capability of generating, acquiring, storing, transforming, processing, publishing, retrieving, utilizing or making available information;

(3) “interactive computer service” means any information service, system or access software provider that provides or enables computer access by multiple users;

(4) “intimate act” has the same meaning as “sexual act”, as that term is defined in Section 30-9-2 NMSA 1978;

(5) “sensitive images” means images, photographs, videos or other likenesses depicting or simulating an intimate act or depicting any portion of a person’s genitals, or of a woman’s breast below the top of the areola, that is either uncovered or visible through less-than-fully opaque clothing, which images may reasonably be considered to be private, intimate or inappropriate for distribution or publication without that person’s consent; and

(6) “telecommunications provider” has the same meaning as set forth in Section 63-7-23 NMSA 1978.

C. Whoever commits unauthorized distribution of sensitive images is guilty of a misdemeanor. Upon a second or subsequent conviction, the offender is guilty of a fourth degree felony.

D. Nothing in this section shall be construed to impose liability on:

(1) an interactive computer service, an information service or a telecommunications provider for content provided by another person; or

(2) a person who reproduces, distributes, exhibits, publishes, transmits or otherwise disseminates content in furtherance of a legitimate public purpose, including the compilation or dissemination of news by newspapers and licensed broadcasters.

Chapter 31. Criminal Procedure

Updated: 
January 5, 2024

Article 1. Issuance of Process and Warrants

Updated: 
January 5, 2024

31-1-2. Definitions

Updated: 
January 5, 2024

Unless a specific meaning is given, as used in the Criminal Procedure Act:

A. “accused” means any person charged with the violation of any law of this state imposing a criminal penalty;

B. “bail bond” is a contract between surety and the state to the effect that the accused and the surety will appear in court when required and will comply with all conditions of the bond;

C. “defendant” means any person accused of a violation of any law of this state imposing a criminal penalty;

D. “felony” means any crime so designated by law or if upon conviction thereof a sentence of death or of imprisonment for a term of one year or more is authorized;

E. “person”, unless a contrary intention appears, means any individual, estate, trust, receiver, cooperative association, club, corporation, company, firm, partnership, joint venture, syndicate or other entity;

F. “police officer”, “law enforcement officer”, “peace officer” or “officer” means any full-time salaried or certified part-time salaried officer who by virtue of office or public employment is vested by law with the duty to maintain the public peace;

G. “recognizance” means any obligation of record entered into before a court requiring the accused to appear at all appropriate times or forfeit any bail and be subject to criminal penalty for failure to appear;

H. “release on personal recognizance” or “release on own recognizance” means the release of a defendant without bail, bail bond or sureties upon the defendant’s promise to appear at all appropriate times;

I. “rules of civil procedure” means rules of civil procedure for the district courts of the state of New Mexico, as may be amended from time to time;

J. “rules of criminal procedure” means rules of criminal procedure for the district courts, magistrate courts and municipal courts adopted by the New Mexico supreme court, as may be amended from time to time;

K. “misdemeanor” means any offense for which the authorized penalty upon conviction is imprisonment in excess of six months but less than one year; and

L. “petty misdemeanor” means any offense so designated by law or if upon conviction a sentence of imprisonment for six months or less is authorized.

Article 18. Criminal Sentencing

Updated: 
January 5, 2024

31-18-15. Sentencing authority; noncapital felonies; basic sentences and fines; parole authority; meritorious deductions

Updated: 
January 5, 2024

A. As used in a statute that establishes a noncapital felony, the following defined felony classifications and associated basic sentences of imprisonment are as follows:

FELONY CLASSIFICATION

BASIC SENTENCE

first degree felony resulting in

the death of a child

life imprisonment

first degree felony for aggravated

criminal sexual penetration

life imprisonment

first degree felony

eighteen years

imprisonment

second degree felony resulting in

the death of a human being

fifteen years

imprisonment

second degree felony for a sexual

offense against a child

fifteen years

imprisonment

second degree felony for sexual

exploitation of children

twelve years

imprisonment

second degree felony

nine years imprisonment

third degree felony resulting in

the death of a human being

six years imprisonment

third degree felony for a sexual

offense against a child

six years imprisonment

third degree felony for sexual

exploitation of children

eleven years

imprisonment

third degree felony

three years

imprisonment

fourth degree felony for sexual

exploitation of children

ten years imprisonment

fourth degree felony

eighteen months

imprisonment.

B. The appropriate basic sentence of imprisonment shall be imposed upon a person convicted and sentenced pursuant to Subsection A of this section, unless the court alters the sentence pursuant to the provisions of the Criminal Sentencing Act.

C. A period of parole shall be imposed only for felony convictions wherein a person is sentenced to imprisonment of more than one year, unless the parties to a proceeding agree that a period of parole should be imposed. If a period of parole is imposed, the court shall include in the judgment and sentence of each person convicted and sentenced to imprisonment in a corrections facility designated by the corrections department authority for a period of parole to be served in accordance with the provisions of Section 31-21-10 NMSA 1978 after the completion of any actual time of imprisonment and authority to require, as a condition of parole, the payment of the costs of parole services and reimbursement to a law enforcement agency or local crime stopper program in accordance with the provisions of that section. If imposed, the period of parole shall be deemed to be part of the sentence of the convicted person in addition to the basic sentence imposed pursuant to Subsection A of this section together with alterations, if any, pursuant to the provisions of the Criminal Sentencing Act.

D. When a court imposes a sentence of imprisonment pursuant to the provisions of Section 31-18-15.1, 31-18-16 or 31-18-17 NMSA 1978 and suspends or defers the basic sentence of imprisonment provided pursuant to the provisions of Subsection A of this section, the period of parole shall be served in accordance with the provisions of Section 31-21-10 NMSA 1978 for the degree of felony for the basic sentence for which the inmate was convicted. For the purpose of designating a period of parole, a court shall not consider that the basic sentence of imprisonment was suspended or deferred and that the inmate served a period of imprisonment pursuant to the provisions of the Criminal Sentencing Act.

E. The court may, in addition to the imposition of a basic sentence of imprisonment, impose a fine not to exceed:

(1) for a first degree felony resulting in the death of a child, seventeen thousand five hundred dollars ($17,500);

(2) for a first degree felony for aggravated criminal sexual penetration, seventeen thousand five hundred dollars ($17,500);

(3) for a first degree felony, fifteen thousand dollars ($15,000);

(4) for a second degree felony resulting in the death of a human being, twelve thousand five hundred dollars ($12,500);

(5) for a second degree felony for a sexual offense against a child, twelve thousand five hundred dollars ($12,500);

(6) for a second degree felony for sexual exploitation of children, five thousand dollars ($5,000);

(7) for a second degree felony, ten thousand dollars ($10,000);

(8) for a third degree felony resulting in the death of a human being, five thousand dollars ($5,000);

(9) for a third degree felony for a sexual offense against a child, five thousand dollars ($5,000);

(10) for a third degree felony for sexual exploitation of children, five thousand dollars ($5,000);

(11) for a third or fourth degree felony, five thousand dollars ($5,000); or

(12) for a fourth degree felony for sexual exploitation of children, five thousand dollars ($5,000).

F. When the court imposes a sentence of imprisonment for a felony offense, the court shall indicate whether or not the offense is a serious violent offense as defined in Section 33-2-34 NMSA 1978. The court shall inform an offender that the offender’s sentence of imprisonment is subject to the provisions of Sections 33-2-34, 33-2-36, 33-2-37 and 33-2-38 NMSA 1978. If the court fails to inform an offender that the offender’s sentence is subject to those provisions or if the court provides the offender with erroneous information regarding those provisions, the failure to inform or the error shall not provide a basis for a writ of habeas corpus.

G. No later than October 31 of each year, the New Mexico sentencing commission shall provide a written report to the secretary of corrections, all New Mexico criminal court judges, the administrative office of the district attorneys and the chief public defender. The report shall specify the average reduction in the sentence of imprisonment for serious violent offenses and nonviolent offenses, as defined in Section 33-2-34 NMSA 1978, due to meritorious deductions earned by prisoners during the previous fiscal year pursuant to the provisions of Sections 33-2-34, 33-2-36, 33-2-37 and 33-2-38 NMSA 1978. The corrections department shall allow the commission access to documents used by the department to determine earned meritorious deductions for prisoners.

Chapter 34. Court Structure and Administration

Updated: 
January 5, 2024

Article 8a. Metropolitan Courts

Updated: 
January 5, 2024

34-8A-3. Metropolitan court; jurisdiction

Updated: 
January 5, 2024

A. In addition to the jurisdiction provided by law for magistrate courts, a metropolitan court shall have jurisdiction within the county boundaries over all:

(1) offenses and complaints pursuant to ordinances of the county and of a municipality located within the county in which the court is located except municipalities with a population of more than two thousand five hundred but less than five thousand persons in the 1980 federal decennial census; provided that the metropolitan court shall not have jurisdiction over uncontested municipal parking violations;

(2) civil actions in which the debt or sum claimed does not exceed ten thousand dollars ($10,000), exclusive of interest and costs; and

(3) contested violations of parking or operation of vehicle rules promulgated by a board of regents of a state educational institution designated in Article 12, Section 11 of the constitution of New Mexico located within the county in which the court is located.

B. For the purposes of this section, “uncontested violation” is a violation for which a citation has been issued and the person has paid the citation by mail or in person to the appropriate issuing authority; and “contested violation” is a violation for which a citation has been issued and the person has indicated his intent to contest the citation or the person has not paid or answered the citation.

C. The issuing authority shall provide to the metropolitan court on a mutually agreed schedule the unpaid citations and a listing in a manner mutually agreed upon of unpaid citations.

D. The municipality shall retain as reimbursement for its expenses all revenues from uncontested municipal parking violations.

Chapter 35. Magistrate and Municipal Courts

Updated: 
January 5, 2024

Article 3. Magistrate Court; Jurisdiction

Updated: 
January 5, 2024

35-3-3. Jurisdiction; civil actions

Updated: 
January 5, 2024

A. Magistrates have jurisdiction in civil actions in which the debt or sum claimed does not exceed ten thousand dollars ($10,000), exclusive of interest and costs.

B. Except as provided in Subsection C of this section, civil jurisdiction extends to actions in contract, quasi-contract and tort and where expressly conferred by law.

C. A magistrate has no jurisdiction in a civil action:

(1) for malicious prosecution, libel or slander;

(2) against public officers for misconduct in office;

(3) for specific performance of contracts for the sale of real property;

(4) in which the title or boundaries of land may be in dispute or drawn into question;

(5) affecting domestic relations, including divorce, annulment or separation or custody, support, guardianship, adoption or dependency of children;

(6) to grant writs of injunction, habeas corpus or extraordinary writs; or

(7) where jurisdiction is vested exclusively in another court.

Chapter 40. Domestic Affairs

Updated: 
January 5, 2024

Article 4. Dissolution of Marriage

Updated: 
January 5, 2024

40-4-1. Dissolution of marriage

Updated: 
January 5, 2024
On the petition of either party to a marriage, a district court may decree a dissolution of marriage on any of the following grounds:
A. incompatibility;
B. cruel and inhuman treatment;
C. adultery; or
D. abandonment.

40-4-2. Incompatibility

Updated: 
January 5, 2024

Incompatibility exists when, because of discord or conflict of personalities, the legitimate ends of the marriage relationship are destroyed preventing any reasonable expectation of reconciliation.

40-4-3. Proceeding for division of property, disposition of children or alimony without the dissolution of marriage

Updated: 
January 5, 2024

Whenever the husband and wife have permanently separated and no longer live or cohabit together as husband and wife, either may institute proceedings in the district court for a division of property, disposition of children or alimony, without asking for or obtaining in the proceedings, a dissolution of marriage.

40-4-5. Dissolution of marriage; jurisdiction; domicile

Updated: 
January 5, 2024
The district court has jurisdiction to decree a dissolution of marriage when at the time of filing the petition either party has resided in this state for at least six months immediately preceding the date of the filing and has a domicile in New Mexico. As used in this section, “domicile” means that the person to whom it applies:
A. is physically present in this state and has a place of residence in this state;
B. has a present intention in good faith to reside in this state permanently or indefinitely;
C. provided further, persons serving in any military branch of the United States government who have been continuously stationed in any military base or installation in New Mexico for such period of six months shall, for the purposes hereof, be deemed to have a domicile of the state and county where such military base or installation is located; and
D. provided further, any person who had resided continuously in New Mexico for at least six months immediately prior to his or his spouse’s entry into any military branch of the United States government, who is stationed or whose spouse is stationed at any military base or installation outside of New Mexico and who has a present intention in good faith to return and to reside in this state permanently or indefinitely, shall for the purposes hereof, be deemed to have a domicile of the state and county of his residence immediately prior to his or his spouse’s entry into the military branch.

40-4-7. Proceedings; spousal support; support of children; division of property

Updated: 
January 5, 2024
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 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 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.

40-4-7.2. Binding arbitration option; procedure

Updated: 
January 5, 2024
A. Parties to an action for divorce, separation, custody or time-sharing, child support, spousal support, marital property and debt division or attorney fees related to such matters, including any post-judgment proceeding, may stipulate to binding arbitration by a signed agreement that provides for an award with respect to one or more of the following issues:
(1) valuation and division of real and personal property;
(2) child support, custody, time-sharing or visitation;
(3) spousal support;
(4) costs, expenses and attorney fees;
(5) enforceability of prenuptial and post-nuptial agreements;
(6) determination and allocation of responsibility for debt as between the parties;
(7) any civil tort claims related to any of the foregoing; or
(8) other contested domestic relations matters.
B. A court may not order a party to participate in arbitration except to the extent a party has agreed to participate pursuant to a written arbitration agreement. When the party involved is a minor, then his parent must consent to arbitration. When the party involved is a minor with a guardian ad litem, the guardian ad litem must provide written consent. When the party involved is a minor without a guardian ad litem, then in order for arbitration to proceed the court must find that arbitration is in the best interest of the minor.
C. Arbitration pursuant to this section shall be heard by one or more arbitrator. The court shall appoint an arbitrator agreed to by the parties if the arbitrator consents to the appointment.
D. If the parties have not agreed to an arbitrator, the court shall appoint an arbitrator who:
(1) is an attorney in good standing with the state bar of New Mexico;
(2) has practiced as an attorney for not less than five years immediately preceding the appointment and actively practiced in the area of domestic relations during three of those five years. Any period of time during which a person serves as a judge, special master or child support hearing officer is considered as actively practicing in the area of domestic relations; or
(3) is another professional licensed and experienced in the subject matter that is the area of the dispute.
E. An arbitrator appointed pursuant to this section is immune from liability in regard to the arbitration proceeding to the same extent as the judge who has jurisdiction of the action that is submitted to arbitration.
F. Objections to the qualifications of an arbitrator must be raised in connection with the appointment by the court or they are waived. The court will permit parties to raise objections based on qualifications within ten days of appointment of an arbitrator. Parties who agree on an arbitrator waive objections to his qualifications.
G. An arbitrator appointed pursuant to this section:
(1) shall hear and make an award on each issue submitted for arbitration pursuant to the arbitration agreement subject to the provisions of the agreement; and
(2) has all of the following powers and duties:
(a) to administer an oath or issue a subpoena as provided by court rule;
(b) to issue orders regarding discovery proceedings relative to the issues being arbitrated, including appointment of experts; and
(c) to allocate arbitration fees and expenses between the parties, including imposing a fee or expense on a party or attorney as a sanction for failure to provide information, subject to provisions of the arbitration agreement.
H. An arbitrator, attorney or party in an arbitration proceeding pursuant to this section shall disclose in writing any circumstances that may affect an arbitrator’s impartiality, including, bias, financial interests, personal interests or family relationships. Upon disclosure of such a circumstance, a party may request disqualification of the arbitrator. If the arbitrator does not withdraw within seven days after a request for disqualification, the party may file a motion for disqualification with the court.
I. If the court finds that the arbitrator is disqualified, the court may appoint another arbitrator, subject to the provisions of the arbitration agreement.
J. As soon as practicable after the appointment of the arbitrator, the parties and attorneys shall confer with the arbitrator to consider all of the following:
(1) scope of the issues submitted;
(2) date, time and place of the hearing;
(3) witnesses, including experts, who may testify;
(4) appointment of experts and a schedule for exchange of expert reports or summary of expert testimony; and
(5) subject to the provisions of Subsection K of this section, exhibits, documents or other information each party considers material to the case and a schedule for production or exchange of the information. An objection not made before the hearing to production or lack of production of information is waived.
K. The arbitrator shall order reasonable access to information for each party that is material to the arbitration issues prior to the hearing, including the following:
(1) a current complete sworn financial disclosure statement, when financial matters are at issue;
(2) if a court has issued an order concerning an issue subject to arbitration, a copy of the order;
(3) any relevant documents related to the arbitration issues defined by the arbitrator;
(4) proposed award by each party for each issue subject to arbitration; and
(5) expert opinions of experts to be used by either party or appointed by the arbitrator.
L. Except as provided by this section, court rule or the arbitration agreement, a record shall not ordinarily be made of an arbitration hearing pursuant to this section unless either party requests it. If a record is not required, an arbitrator may make a record to be used only by the arbitrator to aid in reaching the decision.
M. Unless waived by the parties, a record shall be made of that portion of the hearing that concerns child custody, visitation or time-sharing.
N. The arbitration agreement may set forth any standards on which an award should be based, including the law to be applied. An arbitration agreement shall provide that in deciding child support issues, the arbitrator shall apply Section 40-4-11.1 NMSA 1978 when setting or modifying a child support order.
O. Unless otherwise agreed to by the parties and arbitrator in writing or on the record, the arbitrator shall issue the written award on each issue within sixty days after the end of the hearing and after receipt of proposed findings of fact and conclusions of law if requested by the arbitrator.
P. If the parties reach an agreement regarding child custody, time-sharing or visitation, the agreement shall be placed on the record by the parties under oath and shall be included in the arbitrator’s written award.
Q. The arbitrator retains jurisdiction to correct errors or omissions in an award upon motion by a party to the arbitrator within twenty days after the award is issued or upon the arbitrator’s own motion. Another party to the arbitration may respond to the motion within seven days after the motion is made. The arbitrator shall make a decision on the motion within seven days after the expiration of the response time period.
R. The court shall enforce an arbitrator’s award or other order issued pursuant to this section in the same manner as an order issued by the court. A party may make a motion to the court to enforce an arbitrator’s award or order.
S. Any party in an action that was submitted to arbitration pursuant to this section shall file with the court a stipulated order, or a motion to enforce the award within twenty-one days after the arbitrator’s award is issued unless otherwise agreed to by the parties in writing or unless the arbitrator or court grants an extension.
T. If a party applies to the court for vacation of an arbitrator’s award in binding arbitration issued pursuant to this section that concerns child custody, time-sharing or visitation, the court shall review the award based only upon the record of the arbitration hearing and factual matters that have arisen since the arbitration hearing that are relevant to the claim. The court may vacate an award of custody, time-sharing or visitation made in binding arbitration if the court finds that circumstances have changed since issuance of the award that are adverse to the best interests of the child, upon a finding that the award will cause harm or be detrimental to a child, or pursuant to Subsections U and V of this section. An arbitration agreement may provide a broader scope of review of custody, time-sharing or visitation issues by the court, and such review will apply if broader than this section.
U. If a party applies to the court for vacation or modification of an arbitrator’s award issued pursuant to this section, the court shall review the award only as provided in Subsections T and V of this section.
V. If a party applies under this section, the court may vacate, modify or correct an award under any of the following circumstances:
(1) the award was procured by corruption, fraud or other undue means;
(2) there was evident partiality by an arbitrator, or misconduct prejudicing a party’s rights;
(3) the arbitrator exceeded his powers; or
(4) the arbitrator refused to postpone the hearing on a showing of sufficient cause or refused to hear evidence substantial and material to the controversy.
W. An application to vacate an award on grounds stated in Subsections U and V of this section shall be decided by the court. If an award is vacated on grounds stated in Paragraph (3) or (4) of Subsection V of this section, the court may order a rehearing before the arbitrator who made the award when both parties consent to the rehearing before the arbitrator who made the award.
X. An appeal from an arbitration award pursuant to this section that the court confirms, vacates, modifies or corrects shall be taken in this same manner as from an order or judgment in other domestic relations actions.
Y. No arbitrator may decide issues of a criminal nature or make decisions on petitions pursuant to the Family Violence Protection Act.

40-4-8. Contested custody; appointment of guardian ad litem

Updated: 
January 5, 2024

A. In any proceeding for the disposition of children when custody of minor children is contested by any party, the court may appoint an attorney at law as guardian ad litem on the court’s motion or upon application of any party to appear for and represent the minor children. Expenses, costs and attorneys’ fees for the guardian ad litem may be allocated among the parties as determined by the court.

B. When custody is contested, the court:

(1) shall refer that issue to mediation if feasible unless a party asserts or it appears to the court that domestic violence or child abuse has occurred, in which event the court shall halt or suspend mediation unless the court specifically finds that:

(a) the following three conditions are satisfied: 1) the mediator has substantial training concerning the effects of domestic violence or child abuse on victims; 2) a party who is or alleges to be the victim of domestic violence is capable of negotiating with the other party in mediation, either alone or with assistance, without suffering from an imbalance of power as a result of the alleged domestic violence; and 3) the mediation process contains appropriate provisions and conditions to protect against an imbalance of power between the parties resulting from the alleged domestic violence or child abuse; or

(b) in the case of domestic violence involving parents, the parent who is or alleges to be the victim requests mediation and the mediator is informed of the alleged domestic violence;

(2) may order, in addition to or in lieu of the provisions of Paragraph (1) of this subsection, that each of the parties undergo individual counseling in a manner that the court deems appropriate, if the court finds that the parties can afford the counseling; and

(3) may use, in addition to or in lieu of the provisions of Paragraph (1) of this subsection, auxiliary services such as professional evaluation by application of Rule 11-706 of the New Mexico Rules of Evidence or Rule 1-053 of the Rules of Civil Procedure for the District Courts.

C. As used in 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 paragraph 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 paragraph; and

(2) “domestic violence” means one parent causing or threatening physical harm or assault or inciting imminent fear of physical, emotional or psychological harm to the other parent.

40-4-9. Standards for the determination of child custody; hearing

Updated: 
January 5, 2024

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 custody;

(2) the wishes of the child as to his custodian;

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

(4) the child’s adjustment to his 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 wishes to live before awarding custody of such minor.

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

40-4-9.1. Joint custody; standards for determination; parenting plan

Updated: 
January 5, 2024

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 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;

(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.

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. 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. 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. 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. 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 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 home city or state of residence, he 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 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 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. When any 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. 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 J of this section;

(8) “sole custody” means an order of the court awarding custody of a child to one parent; and

(9) “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.

40-4-11.1. Child support; guidelines

Updated: 
January 5, 2024

A. In any action to establish or modify child support, the child support guidelines as set forth in this section and the child support schedule promulgated by the department shall be applied to determine the child support due and shall be a rebuttable presumption for the amount of such child support. Every decree or judgment or stipulation of child support that deviates from the guideline amount shall contain a statement of the reasons for the deviation.
 

B. The purposes of the child support guidelines are to:
 

(1) establish as state policy an adequate standard of support for children, subject to the ability of parents to pay;
 

(2) make awards more equitable by ensuring more consistent treatment of persons in similar circumstances; and
 

(3) improve the efficiency of the court process by promoting settlements and giving courts and the parties guidance in establishing levels of awards.
 

C. For purposes of the guidelines specified in this section:
 

(1) “income” means actual gross income of a parent if employed to full capacity or potential income if unemployed or underemployed. The gross income of a parent means only the income and earnings of that parent and not the income of subsequent spouses, notwithstanding the community nature of both incomes after remarriage; and
 

(2) “gross income” includes income from any source and includes but is not limited to income from salaries, wages, tips, commissions, bonuses, dividends, severance pay, pensions, interest, trust income, annuities, capital gains, social security benefits, workers’ compensation benefits, unemployment insurance benefits, disability insurance benefits, significant in-kind benefits that reduce personal living expenses, prizes and alimony or maintenance received, provided:
 

(a) “gross income” shall not include benefits received from: 1) means-tested public assistance programs, including but not limited to temporary assistance for needy families, supplemental security income and general assistance; 2) the earnings or public assistance benefits of a child who is the subject of a child support award; or 3) child support received by a parent for the support of other children;
 

(b) for income from self-employment, rent, royalties, proprietorship of a business or joint ownership of a partnership or closely held corporation, “gross income” means gross receipts minus ordinary and necessary expenses required to produce such income, but ordinary and necessary expenses do not include expenses determined by the court to be inappropriate for purposes of calculating child support;
 

(c) “gross income” shall not include the amount of alimony payments actually paid in compliance with a court order;
 

(d) “gross income” shall not include the amount of child support actually paid by a parent in compliance with a court order for the support of prior children; and
 

(e) “gross income” shall not include a reasonable amount for a parent’s obligation to support prior children who are in that parent’s custody. A duty to support subsequent children is not ordinarily a basis for reducing support owed to children of the parties but may be a defense to a child support increase for the children of the parties. In raising such a defense, a party may use Table A as set forth in Subsection M of this section to calculate the support for the subsequent children.
 

D. If a court finds that a parent has willfully failed to obtain or maintain appropriate employment or is willfully underemployed, the court may impute to that parent an income equal to that parent’s earning and employment potential.
 

(1) The following criteria shall be used:
 

(a) availability of employment opportunities for the parent;
 

(b) the parent’s employment history;
 

(c) the parent’s income history;
 

(d) the parent’s job skills;
 

(e) the parent’s education;
 

(f) the parent’s age and health;
 

(g) the parent’s history of convictions and incarceration; and
 

(h) the parent’s ability to obtain or maintain employment due to providing care for a child of the parties who is under the age of six or is disabled.
 

(2) Minimum wage may be imputed if a parent has no recent employment or earnings history and that parent has the capacity to earn minimum wage. The minimum wage to be imputed to that parent is the prevailing minimum wage in the locality where that parent resides.
 

E. Income may not be imputed to a parent if the parent is incarcerated for a period of one hundred eighty days or longer. Incarceration is not considered a voluntary unemployment.
 

F. As used in this section:
 

(1) “department” means the human services department;
 

(2) “children of the parties” means the natural or adopted child or children of the parties to the action before the court but shall not include the natural or adopted child or children of only one of the parties;
 

(3) “basic visitation” means a custody arrangement whereby one parent has physical custody and the other parent has visitation with the children of the parties less than thirty-five percent of the time. Such arrangements can exist where the parties share responsibilities pursuant to Section 40-4-9.1 NMSA 1978;
 

(4) “shared responsibility” means a custody arrangement whereby each parent provides a suitable home for the children of the parties, when the children of the parties spend at least thirty-five percent of the year in each home and the parents significantly share the duties, responsibilities and expenses of parenting; and
 

(5) “schedule” means the child support schedule promulgated by the department.
 

G. The basic child support obligation shall be calculated based on the combined income of both parents and shall be paid by them proportionately pursuant to Subsection L of this section.
 

H. Physical custody adjustments shall be made as follows:
 

(1) for basic visitation situations, the basic child support obligation shall be calculated using the basic child support schedule promulgated by the department, Worksheet A and instructions contained in Subsection M of this section. The court may provide for a partial abatement of child support for visitations of one month or longer; and
 

(2) for shared responsibility arrangements, the basic child support obligation shall be calculated using the basic child support schedule promulgated by the department, Worksheet B and instructions contained in Subsection M of this section.
 

I. In shared responsibility situations, each parent retains the percentage of the basic support obligation equal to the number of twenty-four-hour days of responsibility spent by each child with each respective parent divided by three hundred sixty-five.
 

J. The cost of providing medical and dental insurance for the children of the parties and the net reasonable child-care costs incurred on behalf of these children due to employment or job search of either parent shall be paid by each parent in proportion to that parent’s income, in addition to the basic obligation.
 

K. The child support may also include the payment of the following expenses not covered by the basic child support obligation:
 

(1) any extraordinary medical, dental and counseling expenses incurred on behalf of the children of the parties. Such extraordinary expenses are uninsured expenses in excess of one hundred dollars ($100) per child per year;
 

(2) any extraordinary educational expenses for children of the parties; and
 

(3) transportation and communication expenses necessary for long distance visitation or time sharing.
 

L. Whenever application of the child support guidelines set forth in this section requires a person to pay to another person more than forty percent of the paying person’s gross income for a single child support obligation for current support, there shall be a presumption of a substantial hardship, justifying a deviation from the guidelines.
 

M. The department shall:
 

(1) establish the basic child support schedule by rule, using the recommendations of the child support guidelines review commission as the initial proposed rules; and
 

(2) update and adjust the basic child support schedule when such a change is necessary to ensure that the child support schedule complies with the child support guidelines set forth in this section. The basic child support schedule shall be promulgated pursuant to the State Rules Act and shall be published and available to the public through the New Mexico Administrative Code, the New Mexico supreme court’s website and the department’s website. When the department is developing or updating the child support schedule, it shall consider:
 

(a) all of the earnings and income of the noncustodial and custodial parent;
 

(b) the basic subsistence needs of a noncustodial parent who may have a limited ability to pay by incorporating a mechanism that adjusts the basic support obligation for low-income parents;
 

(c) economic data on the costs of raising children;
 

(d) state and local labor market data; and
 

(e) regional and national trends in child support schedule adjustments.
 

WORKSHEET A–BASIC VISITATION
 

__________ JUDICIAL DISTRICT COURT
 
    
COUNTY OF    
 
    
STATE OF NEW MEXICO
 
    
NO.    
 
    
    ,
 

Petitioner,
 
    
vs.
 
    
    ,
 

Respondent.
 
    

MONTHLY CHILD SUPPORT OBLIGATION
 

        Custodial
 
        Other
 
        
        Parent
 
        Parent
 
        Combined
 

1.
 
    Gross Monthly Income
 
    $_________
 
    +
 
    $_________
 
    =
 
    $_________
 

2.
 
    Percentage of Combined Income (Each parent’s income divided by combined income)
 
    _________%
 
    +
 
    _________%
 
    =
 
    100%
 

3.
 
    Number of Children __________
 
            
4.
 
    Basic Support from Schedule
 
            

    (Use combined income from Line 1)
 
        =
 
    __________
 

5.
 
    Children’s Health and Dental Insurance Premium
 
    __________
 
    +
 
    __________
 
    =
 
    __________
 

6.
 
    Work-Related Child Care
 
    __________
 
    +
 
    __________
 
    =
 
    __________
 

7.
 
    Additional Expenses
 
    __________
 
    +
 
    __________
 
    =
 
    __________
 

8.
 
    Total Support (Add Lines 5, 6 and 7 for each parent and Lines 4, 5, 6 and 7 for combined column)
 
    __________
 
    +
 
    __________
 
    =
 
    __________
 

9.
 
    Each Parent’s Obligation (Combined Column Line 8 x each parent’s Line 2)
 
    __________
 
        __________
 
        

10.
 
    Enter amount for each parent from Line 8
 
    -__________
 
    -__________
 
    
11.
 
    Each Parent’s Net Obligation (Subtract Line 10 from Line 9 for each parent).
 
    __________
 
    __________
 
    Other
 

            Parent pays Custodial
 

Parent this Amount
 

 

    _______________PAYS_______________ EACH MONTH $__________
 

                
    Petitioner’s Signature
 
        Respondent’s Signature
 
    

    Date:    
 
        

BASIC VISITATION
 

INSTRUCTIONS FOR WORKSHEET A
 

Line 1. Gross monthly income:
 

Includes all income, except temporary assistance for needy families, food stamps and supplemental security income. If a parent pays child support by court order to other children, subtract from gross income. Use current income if steady. If income varies a lot from month to month, use an average of the last twelve months, if available, or last year’s income tax return. Add both parents’ gross incomes and put total under the combined column.
 

Line 2. Percentage of Combined Income:
 

Divide each parent’s income by combined income to get that parent’s percentage of combined income.
 

Lines 3 and 4. Basic Support:
 

Fill in number of children on worksheet (Line 3). Round combined income to nearest fifty dollars ($50.00). Look at the basic child support schedule. In the far left-hand column of the basic child support schedule, find the rounded combined income figure. Read across to the column with the correct number of children. Enter that amount on Line 4.
 

Line 5. Children’s Health and Dental Insurance Premium:
 

Enter the cost paid by a parent for covering these children with medical and dental insurance under that parent’s column on Line 5. Add costs paid by each parent and enter under the combined column on Line 5.
 

Line 6. Work-Related Child Care:
 

Enter the cost paid by each parent for work-related child care. If the cost varies (for example, between school year and summer), take the total yearly cost and divide by twelve. Enter each parent’s figure in that parent’s column on Line 6. Add the cost for both parents and enter in the combined column on Line 6.
 

Line 7. Additional Expenses:
 

Enter the amounts paid by each parent for additional expenses provided by Subsection J of this section on Line 7. Add the cost for both parents and enter in the combined column on Line 7.
 

Line 8. Total Support:
 

Total the basic support amount from Line 4 in the combined column with the combined column on Lines 5, 6 and 7 and enter the totals in the combined column on Line 8.
 

Line 9. Each Parent’s Obligation:
 

Multiply the total child support amount on Line 8 by each parent’s percentage share on Line 2, and enter each parent’s dollar share under that parent’s column on Line 9.
 

Line 10. Total Support:
 

Enter the total amount shown for each parent on Line 8 beside the “minus” marks on Line 10.
 

Line 11. Each Parent’s Net Obligation:
 

For each parent, subtract the amount on Line 10 from the amount on Line 9. Enter the difference for each parent in that parent’s column on Line 11. The amount in the box “other parent” is what that parent pays to the custodial parent each month. Do not subtract the amount on the custodial parent’s Line 11 from the amount in the other parent’s box. The custodial parent is presumed to use the amount in that parent’s column on Line 11 for the children.
 

WORKSHEET B–SHARED RESPONSIBILITY
 

__________ JUDICIAL DISTRICT COURT
 
    
COUNTY OF    
 
    
STATE OF NEW MEXICO
 
    
NO.    
 
    
    ,
 

Petitioner,
 
    
vs.
 
    
    ,
 

Respondent.
 
    

MONTHLY CHILD SUPPORT OBLIGATION
 

Part 1–Basic Support:
 
    Parent One
 
    Parent Two
 
    Combined
 

1.
 
    Gross Monthly Income
 
    $_________
 
    +
 
    $_________
 
    =
 
    $_________
 

2.
 
    Percentage of Combined Income (Each parent’s income divided by combined income)
 
    _________%
 
    +
 
    _________%
 
    =
 
    100%
 

3.
 
    Number of Children __________
 

4.
 
    Basic Support from Schedule (Use combined income from Line 1)
 
    =
 
    __________
 

5.
 
    Shared Responsibility Basic Obligation (Line 4 x 1.5)
 
    =
 
    __________
 

6.
 
    Each Parent’s Share (Line 5 x each parent’s Line 2)
 
    __________
 
        __________
 
        
7.
 
    Number of 24-Hour Days with Each Parent (must total 365)
 
    __________
 
    +
 
    __________
 
    =
 
    365
 

8.
 
    Percentage with Each Parent (Line 7 divided by 365)
 
    _________%
 
    +
 
    _________%
 
    =
 
    100%
 

9.
 
    Amount Retained (Line 6 x Line 8 for Each Parent)
 
    __________
 
        __________
 
        
10.
 
    Each Parent’s Basic Obligation (subtract Line 9 from Line 6)
 
    __________
 
        __________
 
        
11.
 
    Amount Transferred (subtract smaller amount on Line 10 from larger amount on Line 10). Parent with larger amount on Line 10 pays other parent the difference.
 
                    __________
 

Part 2–Additional Payments:
 

12.
 
    Children’s Health and Dental Insurance Premium
 
    __________
 
    +
 
    __________
 
    =
 
    __________
 

13.
 
    Work-Related Child Care
 
    __________
 
    +
 
    __________
 
    =
 
    __________
 

14.
 
    Additional Expenses
 
    __________
 
    +
 
    __________
 
    =
 
    __________
 

15.
 
    Total Additional Payments (Add Lines 12, 13 and 14 for each parent and for combined column)
 
    __________
 
    +
 
    __________
 
    =
 
    __________
 

16.
 
    Each Parent’s Obligation (Combined Column Line 15 x each parent’s Line 2)
 
    __________
 
        __________
 
        
17.
 
    Amount Transferred (Subtract each parent’s Line 16 from that parent’s Line 15). Parent with “minus” figure pays that amount to other parent.
 
    __________
 
        __________
 
        

Part 3–Net Amount Transferred:
 

18.
 
    Combine Lines 11 and 17 by addition if same parent pays on both lines, otherwise by subtraction.
 
                    __________
 

 

_______________PAYS_______________ EACH MONTH $__________
 

            
Petitioner’s Signature
 
        Respondent’s Signature
 
    

Date:    
 
        

SHARED RESPONSIBILITY
 

INSTRUCTIONS FOR WORKSHEET B
 

Part 1–Basic Support:
 

Line 1. Gross Monthly Income:
 

Includes all income, except temporary assistance for needy families, food stamps and supplemental security income. See text for allowed deductions from income. Use current income if steady. If income varies a lot from month to month, use an average of the last twelve months, if available, or last year’s income tax return. Add both parents’ gross incomes and put total under the combined column.
 

Line 2. Percentage of Combined Income:
 

Divide each parent’s income by combined income to get that parent’s percentage of combined income.
 

Lines 3 and 4. Basic Support:
 

Fill in the number of children on the worksheet (Line 3). Round combined income to nearest fifty dollars ($50.00). Look at the basic child support schedule. In the far left-hand column of that schedule, find the rounded combined income figure. Read across to the column with the correct number of children. Enter that amount on Line 4.
 

Line 5. Shared Responsibility Basic Obligation:
 

Multiply the basic obligation on Line 4 by 1.5.
 

Line 6. Each Parent’s Share:
 

Multiply the support amount on Line 5 by each parent’s percentage share on Line 2, and enter each parent’s dollar share under that parent’s column on Line 6.
 

Line 7. Each Parent’s Time of Care for Children:
 

Enter the number of twenty-four-hour days of responsibility that each parent has each child in a year according to the parenting plan.
 

Line 8. Percentage of Twenty-Four-Hour Days With Each Parent:
 

Divide each parent’s number of twenty-four-hour days (Line 7) by three hundred sixty-five to obtain a percentage.
 

Line 9. Amount Retained:
 

Under shared responsibility arrangements, each parent retains the percentage of the basic support obligation equal to the number of twenty-four-hour days of responsibility spent by each child with each respective parent divided by three hundred sixty-five. Multiply each parent’s share of basic support (Line 6) by the percentage in that parent’s Line 8 and enter the result on that parent’s Line 9. This is the amount that each parent retains to pay the children’s expenses during that parent’s periods of responsibility.
 

Line 10. Each Parent’s Basic Obligation:
 

Subtract the amount retained by each parent for direct expenses (Line 9) from that parent’s share (Line 6) and enter the difference on that parent’s Line 10.
 

Line 11. Amount Transferred for Basic Support:
 

In shared responsibility situations, both parents are entitled not only to retain money for direct expenses but also to receive contributions from the other parent toward those expenses. Therefore, subtract the smaller amount on Line 10 from the larger amount on Line 10 to arrive at a net amount transferred for basic support.
 

Part 2–Additional Payments:
 

Line 12. Children’s Health and Dental Insurance Premium:
 

Enter the cost paid by a parent for covering these children with medical and dental insurance under that parent’s column on Line 12. Add costs paid by each parent and enter under the combined column on Line 12.
 

Line 13. Work-Related Child Care:
 

Enter the cost paid by each parent for work-related child care. If the cost varies (for example, between school year and summer), take the total yearly cost and divide by twelve. Enter each parent’s figure in that parent’s column on Line 13. Add the cost for both parents and enter in the combined column on Line 13.
 

Line 14. Additional Expenses:
 

Enter the cost paid by each parent for additional expenses provided by Subsection J of this section on Line 14.
 

Line 15. Total Additional Payments:
 

For each parent, total the amount paid by that parent for insurance, child care and additional expenses (Lines 12, 13 and 14). Enter the total in that parent’s column on Line 15 and the total of both parents’ expenses under the combined column on Line 15.
 

Line 16. Each Parent’s Obligation:
 

Multiply the total additional payments (combined column on Line 15) by each parent’s percentage share of income on Line 2, and enter each parent’s dollar share of the additional payments on that parent’s Line 16.
 

Line 17. Amount Transferred:
 

Subtract each parent’s obligation for additional expenses (that parent’s Line 16) from the total additional payments made by that parent (that parent’s Line 15). The parent with a “minus” figure pays the other parent the amount on Line 17.
 

Part 3–Net Amount Transferred:
 

Line 18. Combine Lines 11 and 17:
 

Combine the amount owed by one parent to the other for basic support (Line 11) and the amount owed by one parent to the other for additional payments (Line 17). If the same parent owes for both obligations, add Lines 11 and 17, and enter the total on Line 18. If one parent owes for basic support and the other owes for additional payments, subtract the smaller amount from the larger and enter on Line 18. Fill in the blanks by stating which parent pays and which parent receives the net amount transferred.

Article 6a. Uniform Interstate Family Support

Updated: 
January 5, 2024

Article 4. Establishment of Support Order

Updated: 
January 5, 2024

40-6A-401. Establishment of support order

Updated: 
January 5, 2024
A. If a support order entitled to recognition pursuant to the Uniform Interstate Family Support Act has not been issued, a responding tribunal of this state with personal jurisdiction over the parties may issue a support order if:
(1) the individual seeking the order resides outside this state; or
(2) the support enforcement agency seeking the order is located outside this state.
B. The tribunal may issue a temporary child support order if the tribunal determines that such an order is appropriate and the individual ordered to pay is:
(1) a presumed father of the child;
(2) petitioning to have his paternity adjudicated;
(3) identified as the father of the child through genetic testing;
(4) an alleged father who has declined to submit to genetic testing;
(5) shown by clear and convincing evidence to be the father of the child;
(6) an acknowledged father as provided by applicable state law;
(7) the mother of the child; or
(8) an individual who has been ordered to pay child support in a previous proceeding and the order has not been reversed or vacated.
C. Upon finding, after notice and opportunity to be heard, that an obligor owes a duty of support, the tribunal shall issue a support order directed to the obligor and may issue other orders pursuant to Section 40-6A-305 NMSA 1978.

40-6A-402. Proceeding to determine parentage

Updated: 
January 5, 2024

A tribunal of this state authorized to determine parentage of a child may serve as a responding tribunal in a proceeding to determine parentage of a child brought pursuant to the Uniform Interstate Family Support Act or a law or procedure substantially similar to that act.

Article 9. Grandparent's Visitation Priviliges

Updated: 
January 5, 2024

40-9-2. Children; visitation by grandparent; petition; mediation

Updated: 
January 5, 2024

A. In rendering a judgment of dissolution of marriage, legal separation or the existence of the parent and child relationship pursuant to the provisions of the Uniform Parentage Act,1 or at any time after the entry of the judgment, the district court may grant reasonable visitation privileges to a grandparent of a minor child, not in conflict with the child’s education or prior established visitation or time-sharing privileges.

B. If one or both parents of a minor child are deceased, any grandparent of the minor child may petition the district court for visitation privileges with respect to the minor. The district court may order temporary visitation privileges until a final order regarding visitation privileges is issued by the court.

C. If a minor child resided with a grandparent for a period of at least three months and the child was less than six years of age at the beginning of the three-month period and the child was subsequently removed from the grandparent’s home by the child’s parent or any other person, the grandparent may petition the district court for visitation privileges with respect to the child, if the child’s home state is New Mexico, as provided in the Child Custody Jurisdiction Act.2

D. If a minor child resided with a grandparent for a period of at least six months and the child was six years of age or older at the beginning of the six-month period and the child was subsequently removed from the grandparent’s home by the child’s parent or any other person, the grandparent may petition the district court for visitation privileges with respect to the child, if the child’s home state is New Mexico, as provided in the Child Custody Jurisdiction Act.

E. A biological grandparent may petition the district court for visitation privileges with respect to a grandchild when the grandchild has been adopted or adoption is sought, pursuant to the provisions of the Adoption Act,3 by:

(1) a stepparent;

(2) a relative of the grandchild;

(3) a person designated to care for the grandchild in the provisions of a deceased parent’s will; or

(4) a person who sponsored the grandchild at a baptism or confirmation conducted by a recognized religious organization.

F. When a minor child is adopted by a stepparent and the parental rights of the natural parent terminate or are relinquished, the biological grandparents are not precluded from attempting to establish visitation privileges. When a petition filed pursuant to the provisions of the Grandparent’s Visitation Privileges Act4 is filed during the pendency of an adoption proceeding, the petition shall be filed as part of the adoption proceedings. The provisions of the Grandparent’s Visitation Privileges Act shall have no application in the event of a relinquishment or termination of parental rights in cases of other statutory adoption proceedings.

G. When considering a grandparent’s petition for visitation privileges with a child, the district court shall assess:

(1) any factors relevant to the best interests of the child;

(2) the prior interaction between the grandparent and the child;

(3) the prior interaction between the grandparent and each parent of the child;

(4) the present relationship between the grandparent and each parent of the child;

(5) time-sharing or visitation arrangements that were in place prior to filing of the petition;

(6) the effect the visitation with the grandparent will have on the child;

(7) if the grandparent has any prior convictions for physical, emotional or sexual abuse or neglect; and

(8) if the grandparent has previously been a full-time caretaker for the child for a significant period.

H. The district court may order mediation and evaluation in any matter when a grandparent’s visitation privileges with respect to a minor child are at issue. When a judicial district has established a domestic relations mediation program pursuant to the provisions of the Domestic Relations Mediation Act,5 the mediation shall conform with the provisions of that act. Upon motion and hearing, the district court shall act promptly on the recommendations set forth in a mediation report and consider assessment of mediation and evaluation to the parties. The district court may order temporary visitation privileges until a final order regarding visitation privileges is issued by the court.

I. When the district court decides that visitation is not in the best interest of the child, the court may issue an order requiring other reasonable contact between the grandparent and the child, including regular communication by telephone, mail or any other reasonable means.

J. The provisions of the Child Custody Jurisdiction Act and Section 30-4-4 NMSA 1978, regarding custodial interference, are applicable to the provisions of the Grandparent’s Visitation Privileges Act.

Article 10a. Child Custody (Refs & Annos)

Updated: 
January 5, 2024

40-10A-102. Definitions

Updated: 
January 5, 2024

As used in the Uniform Child-Custody Jurisdiction and Enforcement Act:

(1) “abandoned” means left without provision for reasonable and necessary care or supervision;

(2) “child” means an individual who has not attained eighteen years of age;

(3) “child-custody determination” means a judgment, decree or other order of a court providing for legal custody, physical custody or visitation with respect to a child. The term includes a permanent, temporary, initial or modification order. The term does not include an order relating to child support or other monetary obligation of an individual;

(4) “child-custody proceeding” means a proceeding in which legal custody, physical custody or visitation with respect to a child is an issue. The term includes a proceeding for dissolution of marriage, custody of a child when dissolution of a marriage is not an issue, neglect, abuse, dependency, guardianship, paternity, termination of parental rights whether filed alone or with an adoption proceeding and protection from domestic violence in which the issue may appear. The term does not include a proceeding involving juvenile delinquency, contractual emancipation or enforcement under Article 3 of the Uniform Child-Custody Jurisdiction and Enforcement Act;

(5) “commencement” means the filing of the first pleading in a proceeding;

(6) “court” means an entity authorized under the law of a state to establish, enforce or modify a child-custody determination;

(7) “home state” means the state in which a child lived with a parent or a person acting as a parent for at least six consecutive months immediately before the commencement of a child-custody proceeding. In the case of a child less than six months of age, the term means the state in which the child lived from birth with any of the persons mentioned. A period of temporary absence of any of the mentioned persons is part of the period;

(8) “initial determination” means the first child- custody determination concerning a particular child;

(9) “issuing court” means the court that makes a child- custody determination for which enforcement is sought under the Uniform Child-Custody Jurisdiction and Enforcement Act;

(10) “issuing state” means the state in which a child- custody determination is made;

(11) “modification” means a child-custody determination that changes, replaces, supersedes or is otherwise made after a previous determination concerning the same child, whether or not it is made by the court that made the previous determination;

(12) “person” means an individual, corporation, business trust, estate, trust, partnership, limited liability company, association, joint venture, government, governmental subdivision, agency or instrumentality, public corporation or any other legal or commercial entity;

(13) “person acting as a parent” means a person, other than a parent, who:

(A) has physical custody of the child or has had physical custody for a period of six consecutive months, including any temporary absence, within one year immediately before the commencement of a child-custody proceeding; and

(B) has been awarded legal custody by a court or claims a right to legal custody under the law of this state;

(14) “physical custody” means the physical care and supervision of a child;

(15) “state” means a state of the United States, the District of Columbia, Puerto Rico, the United States Virgin Islands or any territory or insular possession subject to the jurisdiction of the United States;

(16) “tribe” means an Indian tribe or band, or Alaskan Native village, which is recognized by federal law or formally acknowledged by a state; and

(17) “warrant” means an order issued by a court authorizing law enforcement officers to take physical custody of a child.

40-10A-201. Initial child-custody jurisdiction

Updated: 
January 5, 2024

(a) Except as otherwise provided in Section 204, a court of this state has jurisdiction to make an initial child-custody determination only if:

(1) this state is the home state of the child on the date of the commencement of the proceeding, or was the home state of the child within six months before the commencement of the proceeding and the child is absent from this state but a parent or person acting as a parent continues to live in this state;

(2) a court of another state does not have jurisdiction under paragraph (1) or a court of the home state of the child has declined to exercise jurisdiction on the ground that this state is the more appropriate forum under Section 207 or 208 and:

(A) the child and the child’s parents, or the child and at least one parent or a person acting as a parent, have a significant connection with this state other than mere physical presence; and

(B) substantial evidence is available in this state concerning the child’s care, protection, training and personal relationships;

(3) all courts having jurisdiction under paragraph (1) or (2) have declined to exercise jurisdiction on the ground that a court of this state is the more appropriate forum to determine the custody of the child under Section 207 or 208; or

(4) no court of any other state would have jurisdiction under the criteria specified in paragraph (1), (2) or (3).

(b) Subsection (a) is the exclusive jurisdictional basis for making a child-custody determination by a court of this state.

(c) Physical presence of, or personal jurisdiction over, a party or a child is not necessary or sufficient to make a child-custody determination.

40-10A-202. Exclusive, continuing jurisdiction

Updated: 
January 5, 2024

(a) Except as otherwise provided in Section 204, a court of this state which has made a child-custody determination consistent with Section 201 or 203 has exclusive, continuing jurisdiction over the determination until:

(1) a court of this state determines that the child, or the child and one parent, or the child and a person acting as a parent do not have a significant connection with this state and that substantial evidence is no longer available in this state concerning the child’s care, protection, training and personal relationships; or

(2) a court of this state or a court of another state determines that the child, the child’s parents and any person acting as a parent do not presently reside in this state.

(b) A court of this state which has made a child-custody determination and does not have exclusive, continuing jurisdiction under this section may modify that determination only if it has jurisdiction to make an initial determination under Section 201.

Article 10b. Kinship Guardianship

Updated: 
January 5, 2024

40-10B-3. Definitions

Updated: 
January 5, 2024

As used in the Kinship Guardianship Act:
 

A. “caregiver” means an adult, who is not a parent of a child, with whom a child resides and who provides that child with the care, maintenance and supervision consistent with the duties and responsibilities of a parent of the child;
 

B. “child” means an individual who is a minor;
 

C. “department” means the children, youth and families department;
 

D. “guardian” means a person appointed as a guardian by a court or Indian tribal authority;
 

E. “Indian” means, whether an adult or child, a person who is:
 

(1) a member of an Indian tribe; or
 

(2) eligible for membership in an Indian tribe;
 

F. “Indian child” means an Indian person, or a person whom there is reason to know is an Indian person, under eighteen years of age, who is neither:
 

(1) married; or
 

(2) emancipated;
 

G. “Indian child’s tribe” means:
 

(1) the Indian tribe in which an Indian child is a member or eligible for membership; or
 

(2) in the case of an Indian child who is a member or eligible for membership in more than one tribe, the Indian tribe with which the Indian child has more significant contacts;
 

H. “Indian custodian” means an Indian who, pursuant to tribal law or custom or pursuant to state law:
 

(1) is an adult with legal custody of an Indian child; or
 

(2) has been transferred temporary physical care, custody and control by the parent of the Indian child;
 

I. “Indian tribe” means an Indian nation, tribe, pueblo or other band, organized group or community of Indians recognized as eligible for the services provided to Indians by the secretary of the interior because of their status as Indians, including an Alaska native village as defined in 43 U.S.C. Section 1602(c) or a regional corporation as defined in 43 U.S.C. Section 1606. For the purposes of notification to and communication with a tribe as required in the Indian Family Protection Act, “Indian tribe” also includes those tribal officials and staff who are responsible for child welfare and social services matters;
 

J. “kinship” means the relationship that exists between a child and a relative of the child, a godparent, a member of the child’s tribe or clan or an adult with whom the child has a significant bond;
 

K. “parent” means a biological or adoptive parent of a child whose parental rights have not been terminated and includes an individual identified as a parent under the New Mexico Uniform Parentage Act; and
 

L. “relative” means an individual related to a child as a spouse, parent, stepparent, brother, sister, stepbrother, stepsister, half-brother, half-sister, uncle, aunt, niece, nephew, first cousin or any person denoted by the prefix “grand” or “great”, or the spouse or former spouse of the persons specified.

40-10B-5. Petition; who may file; contents

Updated: 
January 5, 2024

A. A petition seeking the appointment of a guardian pursuant to the Kinship Guardianship Act may be filed only by:
 

(1) a kinship caregiver;
 

(2) a caregiver, who has reached the age of twenty-one, with whom no kinship with the child exists who has been nominated to be guardian of the child by the child, and the child has reached the age of fourteen;
 

(3) a caregiver designated formally or informally by a parent in writing if the designation indicates on its face that the parent signing understands:
 

(a) the purpose and effect of the guardianship;
 

(b) that the parent has the right to be served with the petition and notices of hearings in the action; and
 

(c) that the parent may appear in court to contest the guardianship; or
 

(4) a caregiver with whom the department has placed the child pursuant to the Children’s Code.
 

B. A petition seeking the appointment of a guardian shall be verified by the petitioner and allege the following with respect to the child:
 

(1) facts that, if proved, will meet the requirements of Subsection B of Section 40-10B-8 NMSA 1978;
 

(2) the date and place of birth of the child, if known, and if not known, the reason for the lack of knowledge;
 

(3) the legal residence of the child and the place where the child resides, if different from the legal residence;
 

(4) the name and address of the petitioner;
 

(5) the kinship, if any, between the petitioner and the child;
 

(6) the names and addresses of the parents of the child;
 

(7) the names and addresses of persons having legal custody of the child;
 

(8) the existence of any matters pending involving the custody of the child;
 

(9) a statement that the petitioner agrees to accept the duties and responsibilities of guardianship;
 

(10) the existence of any matters pending pursuant to the provisions of Chapter 32A, Article 4 NMSA 1978 and, if so, a statement that the department consents to the relief requested in the petition;
 

(11) whether the child is an Indian child or there is reason to know that the child is an Indian child, and subject to provisions of the Indian Family Protection Act and, if so:
 

(a) the Indian child’s tribe;
 

(b) the tribal affiliations of the Indian child’s parents; and
 

(c) active efforts made to comply with the notice requirements pursuant to the Indian Family Protection Act, including results of the contact and the names, addresses, titles and telephone numbers of the persons contacted. Copies of any correspondence with the Indian child’s tribe shall be attached as exhibits to the petition; and
 

(12) other facts in support of the guardianship sought.

Article 12. Domestic Relations Mediation

Updated: 
January 5, 2024

40-12-5.1. Supervised visitation program

Updated: 
January 5, 2024
A. A judicial district may establish a “safe exchange and supervised visitation program” by local court rule approved by the supreme court. The safe exchange and supervised visitation program shall be used when, in the opinion of the court, the best interests of the child are served if confrontation or contact between the parents is to be avoided during exchanges of custody or if contact between a parent and a child should be supervised. In a safe exchange and supervised visitation program, the district court may employ or contract with a person:
(1) with whom a child may be left by one parent for a short period while waiting to be picked up by the other parent; or
(2) to supervise visits among one or both parents and the child.
B. A parent may request the services of the safe exchange and supervised visitation program or the court may order that the program be used.
C. Parents shall pay the cost of the safe exchange and supervised visitation program pursuant to a sliding fee scale approved by the supreme court. The sliding fee scale shall be based on ability to pay for the service. The fees shall be paid to the district court to be credited to the fund.

Article 13. Family Violence Protection

Updated: 
January 5, 2024

40-13-1 Short title

Updated: 
January 5, 2024

Chapter 40, Article 13 NMSA 1978 may be cited as the “Family Violence Protection Act”.


40-13-1.1 Legislative findings; state policy; dual arrests

Updated: 
January 5, 2024

The legislature finds that domestic abuse incidents are complex and require special training on the part of law enforcement officers to respond appropriately to domestic abuse incidents. The state of New Mexico discourages dual arrests of persons involved in incidents of domestic abuse. A law enforcement officer, in making arrests for domestic abuse, shall seek to identify and shall consider whether one of the parties acted in self defense.

40-13-2 Definitions

Updated: 
January 5, 2024

As used in the Family Violence Protection Act:

A. “continuing personal relationship” means a dating or intimate relationship;

B. “co-parents” means persons who have a child in common, regardless of whether they have been married or have lived together at any time;

C. “court” means the district court of the judicial district where an alleged victim of domestic abuse resides or is found;

D. “domestic abuse”:

(1) means an incident of stalking or sexual assault whether committed by a household member or not;

(2) means an incident by a household member against another household member consisting of or resulting in:

(a) physical harm;

(b) severe emotional distress;

(c) bodily injury or assault;

(d) a threat causing imminent fear of bodily injury by any household member;

(e) criminal trespass;

(f) criminal damage to property;

(g) repeatedly driving by a residence or work place;

(h) telephone harassment;

(i) harassment;

(j) strangulation;

(k) suffocation; or

(l) harm or threatened harm to children as set forth in this paragraph; and

(3) does not mean the use of force in self-defense or the defense of another;

E. “firearm” means any weapon that will or is designed to or may readily be converted to expel a projectile by the action of an explosion or the frame or receiver of any such weapon;

F. “household member” means a spouse, former spouse, parent, present or former stepparent, present or former parent-in-law, grandparent, grandparent-in-law, child, stepchild, grandchild, co-parent of a child or a person with whom the petitioner has had a continuing personal relationship. Cohabitation is not necessary to be deemed a household member for purposes of this section;

G. “law enforcement officer” means a public official or public officer vested by law with a duty to maintain public order or to make arrests for crime, whether that duty extends to all crimes or is limited to specific crimes;

H. “mutual order of protection” means an order of protection that includes provisions that protect both parties;

I. “order of protection” means an injunction or a restraining or other court order granted for the protection of a victim of domestic abuse;

J. “protected party” means a person protected by an order of protection;

K. “restrained party” means a person who is restrained by an order of protection;

L. “strangulation” has the same meaning as set forth in Section 30-3-11 NMSA 1978; and

M. “suffocation” has the same meaning as set forth in Section 30-3-11 NMSA 1978.

40-13-3 Petition for order of protection; contents; standard forms

Updated: 
January 5, 2024

A. A victim of domestic abuse may petition the court under the Family Violence Protection Act [40-13-1 NMSA 1978] for an order of protection.



B. The petition shall be made under oath or shall be accompanied by a sworn affidavit setting out specific facts showing the alleged domestic abuse.



C. The petition shall state whether any other domestic action is pending between the petitioner and the respondent.



D. If any other domestic action is pending between the petitioner and the respondent, the parties shall not be compelled to mediate any aspect of the case arising from the Family Violence Protection Act [40-13-1 NMSA 1978] unless the court finds that appropriate safeguards exist to protect each of the parties and that both parties can fairly mediate with such safeguards.



E. An action brought under the Family Violence Protection Act [40-13-1 NMSA 1978] is independent of any proceeding for annulment, separation or divorce between the parties.



F. Remedies granted pursuant to the Family Violence Protection Act [40-13-1 NMSA 1978] are in addition to and shall not limit other civil or criminal remedies available to the parties.



G. Standard simplified petition forms with instructions for completion shall be available to all parties. Law enforcement agencies shall keep such forms and make them available upon request to alleged victims of domestic abuse.

40-13-3.1 Forbearance of costs associated with domestic abuse offenses

Updated: 
January 5, 2024

A. An alleged victim of domestic abuse shall not be required to bear the cost of:

(1) the prosecution of a misdemeanor or felony offense arising out of an incident of domestic abuse, including costs associated with filing a criminal charge against the alleged perpetrator of the abuse;

(2) the filing, issuance or service of a warrant;

(3) the filing, issuance or service of a witness subpoena;

(4) the filing, issuance or service of a petition for an order of protection;

(5) the filing, issuance or service of an order of protection; or

(6) obtaining law enforcement reports or photographs or copies of photographs relating to the alleged abuse or pattern of abuse.

B. No witness fee shall be charged where prohibited by federal law.


40-13-3.2 Ex parte emergency orders of protection

Updated: 
January 5, 2024

A. The district court may issue an ex parte written emergency order of protection when a law enforcement officer states to the court in person, by telephone or via facsimile and files a sworn written statement, setting forth the need for an emergency order of protection, and the court finds reasonable grounds to believe that the alleged victim or the alleged victim’s child is in immediate danger of domestic abuse following an incident of domestic abuse. The written statement shall include the location and telephone number of the alleged perpetrator, if known.



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



(1) if necessary, pursuant to the judge’s oral approval, write and sign the order on an approved form;



(2) if possible, immediately serve a signed copy of the order on the restrained party and complete the appropriate affidavit of service;



(3) immediately provide the protected party with a signed copy of the order; and



(4) provide the original order to the court by the close of business on the next judicial day.



C. The court may grant the following relief in an emergency order of protection upon a probable cause finding that domestic abuse has occurred:



(1) enjoin the restrained party from threatening to commit or committing acts of domestic abuse against the protected party or any designated household members;



(2) enjoin the restrained party from any contact with the protected party, including harassing, telephoning, contacting or otherwise communicating with the protected party; and



(3) grant temporary custody of any minor child in common with the parties to the protected party, if necessary.



D. A district judge shall be available as determined by each judicial district to hear petitions for emergency orders of protection.



E. An emergency order of protection expires seventy-two hours after issuance or at the end of the next judicial day, whichever time is latest. The expiration date shall be clearly stated on the emergency order of protection.



F. A person may appeal the issuance of an emergency order of protection to the court that issued the order. An appeal may be heard as soon as the judicial day following the issuance of the order.



G. Upon a proper petition, a district court may issue a temporary order of protection that is based upon the same incident of domestic abuse that was alleged in an emergency order of protection.



H. Emergency orders of protection are enforceable in the same manner as other orders of protection issued pursuant to the provisions of the Family Violence Protection Act [40-13-1 NMSA 1978].

40-13-4 Temporary order of protection; hearing; dismissal

Updated: 
January 5, 2024

A. Upon the filing of a petition for order of protection, the court shall:



(1) immediately grant an ex parte temporary order of protection without bond if there is probable cause from the specific facts shown by the affidavit or by the petition to give the judge reason to believe that an act of domestic abuse has occurred;



(2) cause the temporary order of protection together with notice of hearing to be served immediately on the alleged perpetrator of the domestic abuse; and



(3) within ten days after the granting of the temporary order of protection, hold a hearing on the question of continuing the order; or



(4) if an ex parte order is not granted, serve notice to appear upon the parties and hold a hearing on the petition for order of protection within seventy-two hours after the filing of the petition; provided if notice of hearing cannot be served within seventy-two hours, the temporary order of protection shall be automatically extended for ten days.



B. If the court grants a temporary order of protection, it may award temporary custody and visitation of any children involved when appropriate.



C. Except for petitions alleging stalking or sexual assault, if the court finds that the alleged perpetrator is not a household member, the court shall dismiss the petition.

40-13-5 Order of protection; contents; remedies; title to property not affected; mutual order of protection

Updated: 
January 5, 2024

A. Upon finding that domestic abuse has occurred or upon stipulation of the parties, the court shall enter an order of protection ordering the restrained party to:

(1) refrain from abusing the protected party or any other household member; and

(2) if the order is issued pursuant to this section and if the court also determines that the restrained party presents a credible threat to the physical safety of the household member after the restrained party has received notice and had an opportunity to be heard or by stipulation of the parties, to:

(a) deliver any firearm in the restrained party’s possession, care, custody or control to a law enforcement agency, law enforcement officer or federal firearms licensee while the order of protection is in effect; and

(b) refrain from purchasing, receiving, or possessing or attempting to purchase, receive or possess any firearm while the order of protection is in effect.

B. In an order of protection entered pursuant to Subsection A of this section, the court shall specifically describe the acts the court has ordered the restrained party to do or refrain from doing. As a part of any order of protection, the court may:

(1) grant sole possession of the residence or household to the protected party during the period the order of protection is effective or order the restrained party to provide temporary suitable alternative housing for the protected party and any children to whom the restrained party owes a legal obligation of support;

(2) award temporary custody of any children involved when appropriate and provide for visitation rights, child support and temporary support for the protected party on a basis that gives primary consideration to the safety of the protected party and the children;

(3) order that the restrained party shall not initiate contact with the protected party;

(4) restrain a party from transferring, concealing, encumbering or otherwise disposing of the other party’s property or the joint property of the parties except in the usual course of business or for the necessities of life and require the parties to account to the court for all such transferences, encumbrances and expenditures made after the order is served or communicated to the restrained party;

(5) order the restrained party to reimburse the protected party or any other household member for expenses reasonably related to the occurrence of domestic abuse, including medical expenses, counseling expenses, the expense of seeking temporary shelter, expenses for the replacement or repair of damaged property or the expense of lost wages;

(6) order the restrained party to participate in, at the restrained party’s expense, professional counseling programs deemed appropriate by the court, including counseling programs for perpetrators of domestic abuse, alcohol abuse or abuse of controlled substances; and

(7) order other injunctive relief as the court deems necessary for the protection of a party, including orders to law enforcement agencies as provided by this section.

C. The order of protection shall contain notice that violation of any provision of the order of protection is a violation of state law and that federal law, 18 U.S.C. 922, et seq., prohibits possession of firearms by certain persons.

D. If the order of protection supersedes or alters prior orders of the court pertaining to domestic matters between the parties, the order shall say so on its face. If an action relating to child custody or child support is pending or has concluded with entry of an order at the time the petition for an order of protection was filed, the court may enter an initial order of protection, but the portion of the order dealing with child custody or child support will then be transferred to the court that has or continues to have jurisdiction over the pending or prior custody or support action.

E. A mutual order of protection shall be issued only in cases where both parties have petitioned the court and the court makes detailed findings of fact indicating that both parties acted primarily as aggressors and that neither party acted primarily in self-defense.

F. No order issued under the Family Violence Protection Act shall affect title to any property or allow a party to transfer, conceal, encumber or otherwise dispose of another party’s property or the joint or community property of the parties.

G. Either party may request a review hearing to amend an order of protection. An order of protection involving child custody or support may be modified without proof of a substantial or material change of circumstances.

H. An order of protection shall not be issued unless a petition or a counter petition has been filed.

40-13-6 Service of order; duration; penalty; remedies not exclusive

Updated: 
January 5, 2024

A. An order of protection granted under the Family Violence Protection Act shall be filed with the clerk of the court, and a copy shall be sent by the clerk to the local law enforcement agency. The order shall be personally served upon the restrained party, unless the restrained party or the restrained party’s attorney was present at the time the order was issued. The order shall be filed and served without cost to the protected party.

B. A local law enforcement agency receiving an order of protection from the clerk of the court that was issued under the Family Violence Protection Act shall have the order entered in the national crime information center’s order of protection file within seventy-two hours of receipt. This does not include temporary orders of protection entered pursuant to the provisions of Section 40-13-4 NMSA 1978.

C. An order of protection granted by the court involving custody or support shall be effective for a fixed period of time not to exceed six months. The order may be extended for good cause upon motion of the protected party for an additional period of time not to exceed six months. Injunctive orders shall continue until modified or rescinded upon motion by either party or until the court approves a subsequent consent agreement entered into by the parties.

D. A peace officer may arrest without a warrant and take into custody a restrained party whom the peace officer has probable cause to believe has violated an order of protection that is issued pursuant to the Family Violence Protection Act or entitled to full faith and credit.

E. A restrained party convicted of violating an order of protection granted by a court under the Family Violence Protection Act is guilty of a misdemeanor and shall be sentenced in accordance with Section 31-19-1 NMSA 1978. Upon a second or subsequent conviction, an offender shall be sentenced to a jail term of not less than seventy-two consecutive hours that shall not be suspended, deferred or taken under advisement.

F. In addition to any other punishment provided in the Family Violence Protection Act, the court shall order a person convicted to make full restitution to the party injured by the violation of an order of protection and shall order the person convicted to participate in and complete a program of professional counseling, at the person’s own expense, if possible.

G. In addition to charging the person with violating an order of protection, a peace officer shall file all other possible criminal charges arising from an incident of domestic abuse when probable cause exists.

H. The remedies provided in the Family Violence Protection Act are in addition to any other civil or criminal remedy available to the protected party or the state.

40-13-7 Law enforcement officers; emergency assistance; limited liability; providing notification to victims when an alleged perpetrator is released from detention; statement in judgment and sentence document

Updated: 
January 5, 2024

A. A person who allegedly has been a victim of domestic abuse may request the assistance of a local law enforcement agency.

B. A local law enforcement officer responding to the request for assistance shall be required to take whatever steps are reasonably necessary to protect the victim from further domestic abuse, including:

(1) advising the victim of the remedies available under the Family Violence Protection Act [40-13-1 NMSA 1978]; the right to file a written statement, a criminal complaint and a request for an arrest warrant; and the availability of domestic violence shelters, medical care, counseling and other services;

(2) upon the request of the victim, providing or arranging for transportation of the victim to a medical facility or place of shelter;

(3) upon the request of the victim, accompanying the victim to the victim’s residence to obtain the victim’s clothing and personal effects required for immediate needs and the clothing and personal effects of any children then in the care of the victim;

(4) upon the request of the victim, assist in placing the victim in possession of the dwelling or premises or otherwise assist in execution, enforcement or service of an order of protection;

(5) arresting the alleged perpetrator when appropriate and including a written statement in the attendant police report to indicate that the arrest of the alleged perpetrator was, in whole or in part, premised upon probable cause to believe that the alleged perpetrator committed domestic abuse against the victim and, when appropriate, indicate that the party arrested was the predominant aggressor; and

(6) advising the victim when appropriate of the procedure for initiating proceedings under the Family Violence Protection Act [40-13-1 NMSA 1978] or criminal proceedings and of the importance of preserving evidence.

C. The jail or detention center shall make a reasonable attempt to notify the arresting law enforcement agency or officer when the alleged perpetrator is released from custody. The arresting law enforcement agency shall make a reasonable attempt to notify the victim that the alleged perpetrator is released from custody.

D. Any law enforcement officer responding to a request for assistance under the Family Violence Protection Act [40-13-1 NMSA 1978] is immune from civil liability to the extent allowed by law. Any jail, detention center or law enforcement agency that makes a reasonable attempt to provide notification that an alleged perpetrator is released from custody is immune from civil liability to the extent allowed by law.

E. A statement shall be included in a judgment and sentence document to indicate when a conviction results from the commission of domestic abuse

40-13-7.1 Medical personnel; documentation of domestic abuse

Updated: 
January 5, 2024

A. When medical personnel who are interviewing, examining, attending or treating a person:

(1) receive a report from the person of an act of domestic abuse, the medical personnel shall document the nature of the abuse and the name of the alleged perpetrator of the abuse in the person’s medical file and shall provide the person with information and referral to services for victims of domestic abuse; or
(2) may have reason to believe or suspect that the person is a victim of domestic abuse, the medical personnel shall provide the person with information and referral to services for victims of domestic abuse.

B. Medical and other health care related information or communications concerning domestic abuse of a person obtained by or from medical personnel during the course of an interview, examination, diagnosis or treatment are confidential communications unless released:

(1) with the prior written consent of the person;
(2) pursuant to a court order; or
(3) when necessary to provide treatment, payment and operations in accordance with the federal Health Insurance Portability and Accountability Act.

C. As used in this section, “medical personnel” means:

(1) licensed health care practitioners;
(2) licensed emergency medical technicians;
(3) health care practitioners who interview, examine, attend or treat a person and who are under the guidance or supervision of licensed health care practitioners; and
(4) residents and interns.

40-13-9 Domestic violence special commissioners; appointment and qualifications

Updated: 
January 5, 2024

A. A domestic violence special commissioner shall be appointed by and serve at the pleasure of the chief judge of the judicial district to which the officer is assigned.

B. A domestic violence special commissioner shall:

(1) be an attorney licensed to practice law in New Mexico;
(2) have a minimum of three years experience in the practice of law and be knowledgeable in the area of domestic relations and domestic violence matters; and
(3) conform to Canons 21-100 through 21-500 and 21-700 of the Code of Judicial Conduct as adopted by the supreme court. Violation of any such canon shall be grounds for dismissal of any domestic violence special commissioner.


40-13-10 Special commissioners; powers and duties

Updated: 
January 5, 2024

A. A domestic violence special commissioner shall perform the following duties in carrying out the provisions of the Family Violence Protection Act:

(1) review petitions for orders of protection and motions to enforce, modify or terminate orders of protection;
(2) if deemed necessary, interview petitioners. Any interview shall be on the record;
(3) conduct hearings on the merits of petitions for orders of protection and motions to enforce, modify or terminate orders of protection; and
(4) prepare recommendations to the district court regarding petitions for orders of protection and motions to enforce, modify or terminate orders of protection.

B. All orders must be signed by a district court judge before the recommendations of a domestic violence special commissioner become effective.


Article 15. Family Preservation Act

Updated: 
January 5, 2024

40-15-4. Parental and state responsibilities

Updated: 
January 5, 2024
A. Parents have joint primary responsibility for the well-being of their family. Parents have the primary responsibility to:
(1) ensure that their children have adequate food, shelter, health care and a healthy environment;
(2) support their children in all ways possible to grow up to be responsible, caring members of society;
(3) ensure that their children receive quality education both in and out of school to prepare them for active and productive adult lives;
(4) protect their children from the serious dangers of narcotics, alcohol and other harmful substances; and
(5) protect their children from all forms of exploitation harmful to any aspect of their welfare.
B. The state has a responsibility to develop plans to:
(1) make available to families free, quality public primary and secondary education;
(2) provide public safety services so that family members are safe in their homes, schools, workplaces and recreational settings;
(3) make available social service programs that support vulnerable families and protect spouses and children in danger of physical or serious emotional harm;
(4) develop programs that build on the strengths of families and connect them with community resources;
(5) provide parents with access to the training and support they need to raise their children, function effectively as parents and play a key role in helping preschool and growing children learn; and
(6) assist parents in carrying out their primary responsibility of providing for the well-being of their family.

Article 16. Termination of Parental Rights

Updated: 
January 5, 2024

40-16-1. Termination of parental rights; conception resulting from criminal sexual penetration

Updated: 
January 5, 2024
A. At any time, a biological parent may petition the court for termination of the parental rights of a child’s other biological parent, where that other biological parent has been convicted of criminal sexual penetration and where the criminal sexual penetration resulted in the conception and birth of the child. The court shall grant the petition if the court determines by clear and convincing evidence that the child was conceived as a result of the criminal sexual penetration for which the other biological parent was convicted.
B. In a proceeding that involves a child subject to the federal Indian Child Welfare Act of 1978, the grounds for any attempted termination shall be proved beyond a reasonable doubt and shall meet the requirements set forth in that act, and the court shall, in a termination order, make specific findings that those requirements were met.
C. A determination pursuant to Subsection A of this section or proof pursuant to Subsection B of this section creates a presumption that termination of parental rights is in the best interest of the child.
D. As used in this section, “criminal sexual penetration” means aggravated criminal sexual penetration in the first degree and criminal sexual penetration in the first, second or third degree pursuant to the laws of this state or an equivalent offense pursuant to the laws of another jurisdiction, territory or possession of the United States or an Indian nation, tribe or pueblo.

Chapter 50. Employment Law

Updated: 
January 5, 2024

Article 4a. Promoting Financial Independence for Victims of Domestic Abuse Act

Updated: 
January 5, 2024

50-4A-1. Short title

Updated: 
January 5, 2024

This act may be cited as the “Promoting Financial Independence for Victims of Domestic Abuse Act”.

50-4A-2. Definitions

Updated: 
January 5, 2024
As used in the Promoting Financial Independence for Victims of Domestic Abuse Act:
A. “domestic abuse” has the same meaning as it does in the Family Violence Protection Act;
B. “domestic abuse leave” means intermittent paid or unpaid leave time for up to fourteen days in any calendar year, taken by an employee for up to eight hours in one day, to obtain or attempt to obtain an order of protection or other judicial relief from domestic abuse or to meet with law enforcement officials, to consult with attorneys or district attorneys’ victim advocates or to attend court proceedings related to the domestic abuse of an employee or an employee’s family member;
C. “employee” means a person who is employed by an employer;
D. “employer” includes a person, a firm, a partnership, an association, a corporation, a receiver or an officer of the court of New Mexico, a state agency, or a unit of local government or a school district;
E. “family member” means a minor child of the employee or a person for whom the employee is a legal guardian;
F. “order of protection” means a court order granted pursuant to the Family Violence Protection Act; and
G. “retaliation” means an adverse action against an employee, including threats, reprisals or discrimination for engaging in the protected activity of taking domestic abuse leave.

50-4A-3. Domestic abuse leave required; retaliation prohibited

Updated: 
January 5, 2024
An employer shall grant an employee domestic abuse leave without interfering with, restraining or denying exercise of rights under the Promoting Financial Independence for Victims of Domestic Abuse Act or attempting to do so. Retaliation against an employee for using domestic abuse leave is prohibited.

50-4A-4. Certification; verification

Updated: 
January 5, 2024
A. When domestic abuse leave is taken in an emergency, the employee or the employee’s designee shall give notice to the employer within twenty-four hours of commencing the domestic abuse leave.
B. An employer may require verification of the need for domestic abuse leave, and, if so, an employee shall provide one of the following forms of verification through furnishing in a timely fashion:
(1) a police report indicating that the employee or a family member was a victim of domestic abuse;
(2) a copy of an order of protection or other court evidence produced in connection with an incident of domestic abuse, but the document does not constitute a waiver of confidentiality or privilege between the employee and the employee’s advocate or attorney; or
(3) the written statement of an attorney representing the employee, a district attorney’s victim advocate, a law enforcement official or a prosecuting attorney that the employee or employee’s family member appeared or is scheduled to appear in court in connection with an incident of domestic abuse.

50-4A-5. Impact of domestic abuse leave on other employee benefits

Updated: 
January 5, 2024
A. For domestic abuse leave, an employee may use accrued sick leave or other available paid time off, compensatory time or unpaid leave time consistent with the employer’s policies.
B. To the extent permitted by law, an employer shall not withhold pay, health coverage insurance or another benefit that has accrued to the employee when an employee takes domestic abuse leave. An employer shall not include time taken for domestic abuse leave in calculating eligibility for benefits.

50-4A-6. Confidentiality

Updated: 
January 5, 2024

An employer shall not disclose verification information provided under Subsection B of Section 4 of the Promoting Financial Independence for Victims of Domestic Abuse Act and shall maintain confidentiality of the fact that the employee or employee’s family member was involved in a domestic abuse incident, that the employee requested or obtained domestic abuse leave and that the employee made any written or oral statement about the need for domestic abuse leave. An employer may disclose an employee’s information related to domestic abuse leave only when the employee consents, when a court or administrative agency orders the disclosure or when otherwise required by federal or state law.

50-4A-7. Enforcement

Updated: 
January 5, 2024
A. The workforce solutions department is authorized to enforce the Promoting Financial Independence for Victims of Domestic Abuse Act and to investigate complaints made by persons who claim to be aggrieved pursuant to the provisions of that act.
B. The workforce solutions department and the employee have the right to bring an action in violation of the Promoting Financial Independence for Victims of Domestic Abuse Act in a court of competent jurisdiction to enjoin further violations, recover actual damages sustained or both, together with costs and reasonable attorney fees.

50-4A-8. Effect on other laws and existing employment benefits

Updated: 
January 5, 2024
A. Remedies in this section are provided in addition to other common law, federal or state remedies.
B. Nothing in the Promoting Financial Independence for Victims of Domestic Abuse Act shall supersede any provision of law or contract that provides greater rights than the rights established under that act.
C. The rights provided in the Promoting Financial Independence for Victims of Domestic Abuse Act shall not diminish an employer’s obligation to provide greater rights in compliance with another contract, collective bargaining agreement or employment benefit program, policy or plan.

Chapter 47. Property Law

Updated: 
January 5, 2024

Article 8. Owner-Resident Relations

Updated: 
January 5, 2024

47-8-3. Definitions

Updated: 
January 5, 2024

As used in the Uniform Owner-Resident Relations Act:

A. “abandonment” means absence of the resident from the dwelling, without notice to the owner, in excess of seven continuous days; providing such absence occurs only after rent for the dwelling unit is delinquent;

B. “action” includes recoupment, counterclaim, set-off, suit in equity and any other proceeding in which rights are determined, including an action for possession;

C. “amenity” means a facility appurtenance or area supplied by the owner and the absence of which would not materially affect the health and safety of the resident or the habitability of the dwelling unit;

D. “codes” includes building codes, housing codes, health and safety codes, sanitation codes and any law, ordinance or governmental regulation concerning fitness for habitation or the construction, maintenance, operation, occupancy or use of a dwelling unit;

E. “deposit” means an amount of currency or instrument delivered to the owner by the resident as a pledge to abide by terms and conditions of the rental agreement;

F. “dwelling unit” means a structure, mobile home or the part of a structure, including a hotel or motel, that is used as a home, residence or sleeping place by one person who maintains a household or by two or more persons who maintain a common household and includes a parcel of land leased by its owner for use as a site for the parking of a mobile home;

G. “eviction” means any action initiated by the owner to regain possession of a dwelling unit and use of the premises under terms of the Uniform Owner-Resident Relations Act;

H. “fair rental value” is that value that is comparable to the value established in the market place;

I. “good faith” means honesty in fact in the conduct of the transaction concerned as evidenced by all surrounding circumstances;

J. “normal wear and tear” means deterioration that occurs based upon the use for which the rental unit is intended, without negligence, carelessness, accident, abuse or intentional damage of the premises, equipment or chattels of the owner by the residents or by any other person in the dwelling unit or on the premises with the resident’s consent; however, uncleanliness does not constitute normal wear and tear;

K. “organization” includes a corporation, government, governmental subdivision or agency thereof, business trust, estate, trust, partnership or association, two or more persons having a joint or common interest or any other legal or commercial entity;

L. “owner” means one or more persons, jointly or severally, in whom is vested:

(1) all or part of the legal title to property, but shall not include the limited partner in an association regulated under the Uniform Limited Partnership Act; or

(2) all or part of the beneficial ownership and a right to present use and enjoyment of the premises and agents thereof and includes a mortgagee in possession and the lessors, but shall not include a person or persons, jointly or severally, who as owner leases the entire premises to a lessee of vacant land for apartment use;

M. “person” includes an individual, corporation, entity or organization;

N. “premises” means facilities, facilities and appurtenances, areas and other facilities held out for use of the resident or whose use is promised to the resident coincidental with occupancy of a dwelling unit;

O. “rent” means payments in currency or in-kind under terms and conditions of the rental agreement for use of a dwelling unit or premises, to be made to the owner by the resident, but does not include deposits;

P. “rental agreement” means all agreements between an owner and resident and valid rules and regulations adopted under Section 47-8-23 NMSA 1978 embodying the terms and conditions concerning the use and occupancy of a dwelling unit or premises;

Q. “resident” means a person entitled under a rental agreement to occupy a dwelling unit in peaceful possession to the exclusion of others and includes the owner of a mobile home renting premises, other than a lot or parcel in a mobile home park, for use as a site for the location of the mobile home;

R. “roomer” means a person occupying a dwelling unit that lacks a major bathroom or kitchen facility in a structure where one or more major facilities are used in common by occupants of the dwelling units. As referred to in this subsection, “major facility”, in the case of a bathroom, means toilet and either a bath or shower and, in the case of a kitchen, means refrigerator, stove or sink;

S. “single family residence” means a structure maintained and used as a single dwelling unit. Notwithstanding that a dwelling unit shares one or more walls with another dwelling unit, it is a single family residence if it has direct access to a street or thoroughfare and shares neither heating facilities, hot water equipment nor any other essential facility or service with any other dwelling unit;

T. “substantial violation” means a violation of the rental agreement or rules and regulations by the resident or occurring with the resident’s consent that occurs in the dwelling unit, on the premises or within three hundred feet of the premises and that includes the following conduct, which shall be the sole grounds for a substantial violation:

(1) possession, use, sale, distribution or manufacture of a controlled substance, excluding misdemeanor possession and use;

(2) unlawful use of a deadly weapon;

(3) unlawful action causing serious physical harm to another person;

(4) sexual assault or sexual molestation of another person;

(5) entry into the dwelling unit or vehicle of another person without that person’s permission and with intent to commit theft or assault;

(6) theft or attempted theft of the property of another person by use or threatened use of force; or

(7) intentional or reckless damage to property in excess of one thousand dollars ($1,000);

U. “term” is the period of occupancy specified in the rental agreement; and

V. “transient occupancy” means occupancy of a dwelling unit for which rent is paid on less than a weekly basis or where the resident has not manifested an intent to make the dwelling unit a residence or household.

47-8-33. Breach of agreement by resident and relief by owner

Updated: 
January 5, 2024

A. Except as provided in the Uniform Owner-Resident Relations Act, if there is noncompliance with Section 47-8-22 NMSA 1978 materially affecting health and safety or upon the initial material noncompliance by the resident with the rental agreement or any separate agreement, the owner shall deliver a written notice to the resident specifying the acts and omissions constituting the breach, including the dates and specific facts describing the nature of the alleged breach, and stating that the rental agreement will terminate upon a date not less than seven days after receipt of the notice if the breach is not remedied in seven days.

B. Upon the second material noncompliance with the rental agreement or any separate agreement by the resident, within six months of the initial breach, the owner shall deliver a written notice to the resident specifying the acts and omissions constituting the breach, including the dates and specific facts describing the nature of the alleged breach, and stating that the rental agreement shall terminate upon a date not less than seven days after receipt of the notice. If the subsequent breach occurs more than six months after the initial breach, it shall constitute an initial breach for purposes of applying the provisions of this section.

C. The initial notice provided in this section shall state that the rental agreement will terminate upon the second material noncompliance with the rental agreement or any separate agreement by the resident, within six months of the initial breach. To be effective, any notice pursuant to this subsection shall be given within thirty days of the breach or knowledge thereof.

D. If rent is unpaid when due and the resident fails to pay rent within three days after written notice from the owner of nonpayment and his intention to terminate the rental agreement, the owner may terminate the rental agreement and the resident shall immediately deliver possession of the dwelling unit; provided that tender of the full amount due, in the manner stated in the notice, prior to the expiration of the three-day notice shall bar any action for nonpayment of rent.

E. In any court action for possession for nonpayment of rent or other charges where the resident disputes the amount owed because:

(1) the resident has abated rent pursuant to Section 47-8-27.2 or 47-8-4 NMSA 1978; or

(2) the owner has allocated rent paid by the resident as payment for damages to the premises, then, if the owner is the prevailing party, the court shall enter a writ of restitution conditioned upon the right of the resident to remedy within three days of entry of judgment. If the resident has satisfied the judgment within three days, the writ shall be dismissed. If the resident has not satisfied the judgment within three days, the owner may execute upon the writ without further order of the court.

F. Except as provided in the Uniform Owner-Resident Relations Act, the owner may recover damages and obtain injunctive or other relief for any noncompliance by the resident with the rental agreement or this section or Section 47-8-22 NMSA 1978.

G. In a judicial action to enforce a remedy for which prior written notice is required, relief may be granted based only upon the grounds set forth in the written notice served; provided, however, that this shall not bar a defendant from raising any and all defenses or counterclaims for which written notice is not otherwise required by the Uniform Owner-Resident Relations Act.

H. When the last day for remedying any breach pursuant to written notice required under the Uniform Owner-Resident Relations Act occurs on a weekend or federal holiday, the period to remedy shall be extended until the next day that is not a weekend or federal holiday.

I. If the resident knowingly commits or consents to another person in the dwelling unit or on the premises knowingly committing a substantial violation, the owner shall deliver a written notice to the resident specifying the time, place and nature of the act constituting the substantial violation and that the rental agreement will terminate upon a date not less than three days after receipt of the notice.

J. In any action for possession under Subsection I of this section, it shall be a defense that the resident is a victim of domestic violence. If the resident has filed for or secured a temporary domestic violence restraining order as a result of the incident that is the basis for the termination notice or as a result of a prior incident, the writ of restitution shall not issue. In all other cases where domestic violence is raised as a defense, the court shall have the discretion to evict the resident accused of the violation, while allowing the tenancy of the remainder of the residents to continue undisturbed.

K. In any action for possession under Subsection I of this section, it shall be a defense that the resident did not know of, and could not have reasonably known of or prevented, the commission of a substantial violation by any other person in the dwelling unit or on the premises.

L. In an action for possession under Subsection I of this section, it shall be a defense that the resident took reasonable and lawful actions in defense of himself, others or his property.

M. In any action for possession under Subsection I of this section, if the court finds that the action was frivolous or brought in bad faith, the petitioner shall be subject to a civil penalty equal to two times the amount of the monthly rent, plus damages and costs.

State Court Rules

Updated: 
January 5, 2024

1. Rules of Civil Procedure for the District Courts

Updated: 
January 5, 2024

Article 8. Provisional and Final Remedies and Special Proceedings

Updated: 
January 5, 2024

RULE 1-066. INJUNCTIONS AND RECEIVERS

Updated: 
January 5, 2024

A. Preliminary Injunctions; Appointment of Receivers; Notice; Bond; Hearing.

(1) No preliminary injunction shall be issued nor shall any receiver be appointed without notice to the opposite party.

(2) Before or after the commencement of the hearing of an application for a preliminary injunction, the court may order the trial of the action on the merits to be advanced and consolidated with the hearing of the application. Even when this consolidation is not ordered, any evidence received upon an application for a preliminary injunction which would be admissible upon the trial on the merits becomes part of the record on the trial and need not be repeated upon the trial. This subparagraph shall be so construed and applied as to save to the parties any rights they may have to trial by jury.

B. Temporary Restraining Order; Notice; Hearing; Duration. A temporary restraining order may be granted without written or oral notice to the adverse party or his attorney only if:

(1) it clearly appears from specific facts shown by affidavit or by the verified complaint that immediate and irreparable injury, loss or damage will result to the applicant before the adverse party or his attorney can be heard in opposition; and

(2) the applicant’s attorney certifies to the court in writing the efforts, if any, which have been made to give the notice and the reasons supporting his claim that notice should not be required. Every temporary restraining order granted without notice shall be indorsed with the date and hour of issuance; shall be filed forthwith in the clerk’s office and entered of record; shall define the injury and state why it is irreparable and why the order was granted without notice; and shall expire by its terms within such time after entry, not to exceed ten (10) days, as the court fixes, unless within the time so fixed the order, for good cause shown, is extended for a like period or unless the party against whom the order is directed consents that it may be extended for a longer period, except that, if a party adverse to the party obtaining a restraining order shall disqualify the judge who would otherwise have heard the matter, then the order shall be deemed extended until ten (10) days after the designation of another judge or until such earlier time as may be fixed by the judge so designated. The reasons for the extension shall be entered of record. In case a temporary restraining order is granted without notice, the motion for a preliminary injunction shall be set down for hearing at the earliest possible time and takes precedence of all matters except older matters of the same character; and when the motion comes on for hearing the party who obtained the temporary restraining order shall proceed with the application for a preliminary injunction and, if he does not do so, the court shall dissolve the temporary restraining order. On two (2) days’ notice to the party who obtained the temporary restraining order without notice or on such shorter notice to that party as the court may prescribe, the adverse party may appear and move its dissolution or modification and in that event, the court shall proceed to hear and determine such motion as expeditiously as the ends of justice require.

C. Security. No restraining order, preliminary injunction or appointment of a receiver shall issue or occur except upon the giving of security by the applicant, in such sum as the court deems proper, for the payment of such costs and damages as may be incurred or suffered by any party who is found to have been wrongfully enjoined or restrained, or whose property may be found to have been thereby wrongfully placed in the hands of a receiver so appointed; provided, however, that for good cause shown and to be recited in the order made, the court or judge may waive the furnishing of security.

D. Security; Proceedings Against Sureties. Whenever these rules require or permit the giving of security by a party, and security is given in the form of a bond or stipulation or other undertaking with one or more sureties, each surety submits himself to the jurisdiction of the court and irrevocably appoints the clerk of the court as his agent upon whom any papers affecting his liability on the bond or undertaking may be served. His liability may be enforced on motion without the necessity of an independent action. The motion and such notice of the motion as the court prescribes may be served on the clerk of the court, who shall forthwith mail copies to the sureties, if their addresses are known.