Family Court in New Mexico: What Survivors Need to Know (Custody, Orders of Protection & Support)

In New Mexico, Family Court (District Court) handles divorce, parentage, and custody matters.¹ The state has robust laws under the Family Violence Protection Act designed to protect survivors, but navigating them requires knowing exactly which statutes to cite.

Whether you are in Albuquerque, Santa Fe, or Las Cruces, the law prioritizes the safety of the child and the abused parent over the "co-parenting" ideal when violence is present.

1. Terminology: "Period of Responsibility" vs. Custody

New Mexico uses specific legal terms that you should know:

• Legal Custody: The authority to make major decisions (religion, health, education).²

  • Joint Legal Custody: The presumption in most cases, unless it is not in the child's best interest (e.g., due to abuse).

  • Sole Legal Custody: One parent makes all decisions.³ Survivors often seek this to prevent the abuser from blocking medical care or therapy.

• Physical Custody: Who the child lives with.⁴ This is now often described as "Periods of Responsibility" or "Time-Sharing."⁵

• Guardian ad Litem (GAL): An attorney appointed by the court to represent the child's best interests. If a GAL is appointed, ensuring they understand the dynamics of domestic violence is critical.

2. Domestic Violence & Custody (NMSA § 40-4-9.1)

While New Mexico generally favors joint custody, this changes when violence is involved.⁶

• The Law: Under NMSA § 40-4-9.1(B)(9), the court must consider whether a parent has engaged in domestic abuse against the child, the other parent, or a household member.⁷

• The Protection: If the court finds that domestic abuse has occurred, the judge is required to set forth findings that the custody order adequately protects the child and the abused parent.⁸ This can be used to argue for supervised visitation or safe exchange locations (like APD substations or neutral centers).

3. Orders of Protection

You can file for an Order of Protection under the Family Violence Protection Act (NMSA § 40-13).⁹

• Temporary Order of Protection (TRO): Issued immediately (Ex Parte) without the abuser present if there is an emergency.¹⁰ It typically lasts 10 days until a hearing is held.

• Extended Order of Protection: Issued after a hearing. It can last for a set period (often 6 months to 1 year) or even indefinitely depending on the severity.

• Relief Available: The order can grant you temporary physical custody of children, temporary support, and exclusive possession of your home (kicking the abuser out).

• Definition of Abuse: Includes physical harm, severe emotional distress, threats causing imminent fear, criminal trespass, and stalking.¹¹

4. Mediation: You Are Exempt

New Mexico courts generally refer custody disputes to mediation or "Family Court Services."¹²

• The Risk: Mediation requires negotiating with your abuser.

• The Exemption: Under NMSA § 40-4-8, the court shall halt or suspend mediation if it appears that domestic violence or child abuse has occurred.¹³

• Exception: Mediation can only proceed if you (the victim) request it, the mediator is specially trained in DV, and you are capable of negotiating without fear. Otherwise, you should assert your right to skip this step.

5. Child Support & "Good Cause"

• Guidelines: New Mexico uses a calculator based on the combined gross income of both parents.

• CSED & Safety: If you receive TANF (cash assistance), the state normally requires you to help the Child Support Enforcement Division (CSED) collect money from the other parent.

• Good Cause Exemption: You can file a "Good Cause" claim to stop CSED from pursuing the abuser if doing so would put you or the children in danger of physical or emotional harm.

6. Relocation

• The Rule: You cannot relocate the child out of New Mexico (or significantly far away within the state) without the other parent's consent or a court order.

• Safety First: If you are fleeing immediate violence, prioritize your life. However, you should file a Petition for Order of Protection or an emergency custody motion immediately upon reaching safety to explain that the move was for survival, not to "alienate" the other parent.

Frequently Asked Questions (FAQ)

Q1: Do I need a police report to prove abuse?

No. While police reports are helpful, you can prove abuse through sworn testimony, photos, text messages, medical records, or witness statements. The standard of proof in family court is "preponderance of the evidence" (more likely than not), which is lower than criminal court.

Q2: Can I keep my address secret?

Yes. New Mexico has a Confidential Address Program (CAP), also known as "Safe at Home."14 It provides a substitute legal address (a PO Box in Santa Fe) for victims of domestic violence to use on public records, including voter registration and driver's licenses. Call 1-800-477-3632 to apply.

Q3: What if the abuser threatens to take the kids if I leave?

This is a common threat, but not the law. Unless there is a court order saying otherwise, both parents have equal rights. However, if you leave due to abuse, filing for a Temporary Order of Protection that grants you temporary custody is the best way to prevent him from taking them back legally.

Q4: Can I get free legal help?

Yes. New Mexico Legal Aid has a dedicated domestic violence helpline (1-877-974-3400) and can represent qualifying low-income survivors in custody and protective order hearings.15

Q5: Does "emotional abuse" count?

Yes. The Family Violence Protection Act includes "severe emotional distress" in its definition of domestic abuse.16 Documenting patterns of intimidation, screaming, or humiliation helps prove this.

Q6: What is a "Safe Exchange"?

If the court allows visitation, you can ask that the drop-off and pick-up happen at a Safe Exchange location (often run by organizations like Neutral Corner in Albuquerque). This ensures you never have to interact with the abuser alone; staff members handle the transfer of the child.

References & Resources

• NM Legal Aid DV Helpline: 1-877-974-3400.¹⁷

• New Mexico Coalition Against Domestic Violence: nmcadv.org.¹⁸

• Safe at Home (Address Confidentiality): 1-800-477-3632.¹⁹

• New Mexico Courts Self-Help: nmcourts.gov/self-help.

• Legislation: NMSA 1978 § 40-13-2 (Family Violence Protection Act), § 40-4-9.1 (Custody Factors).