In the past I have discussed a wide range of family law issues – issues ranging from divorces, alimony, marital settlement agreements, parenting plans, paternity, child custody, parents time-sharing, and child support. All of these legal issues lead back to one burning question: Does a Albuquerque, New Mexico court have the power to solve my legal problem in the first place?
In this instance “power” is another word for jurisdiction. Albuquerque, New Mexico courts are powerless without jurisdiction because jurisdiction determines whether a Albuquerque, New Mexico court has any power over you, your legal issue, or the ability to enforce a court order surrounding your issue.
In a typical divorce, one of the parties to the marriage must live in New Mexico for six consecutive months before asking a New Mexico court to grant a divorce. Albuquerque, New Mexico courts will refuse to exercise jurisdiction if neither party has lived in New Mexico for a minimum of six months. Assuming that one of the parties has lived in New Mexico for six months, New Mexico courts still lack jurisdiction over property that is located outside of Albuquerque, New Mexico – unless both parties agree that New Mexico has jurisdiction over the out of state property.
The same six month rule also applies to marriages with children. Once again, a party to the marriage must live in New Mexico for six consecutive months before either party can file a divorce, asking the court to determine the custody and timesharing arrangement that is in the best interests of the children.
The law is clear with legal issues such as divorces and child custody disputes that are wrapped within a divorce – generally speaking – either party to the marriage must live in New Mexico for a minimum of six months before a New Mexico court has the power to grant a divorce, or decide the proper child custody and parents timesharing arrangement.
This clear-cut, six month requirement is thrown out of the window when unmarried parents have a child custody dispute, but live in two separate states. In situations such as these, the New Mexico Uniform Child-Custody Jurisdiction and Enforcement act – NMSA 40-10A-101 to 40-10A-403 – sets forth five scenarios, and one of the five must be present before a Albuquerque, New Mexico court has the initial jurisdiction to decide the child custody issue at hand.
The first scenario is Home State Jurisdiction. The “home state” of the child always has priority in child-custody proceedings. Under New Mexico law the “home state” is the state where a child has lived – with a parent or a person acting as a parent – for at least six consecutive months immediately before the child-custody proceeding began. In other words, New Mexico will be considered the home state of the child, and will have priority with child-custody proceedings, if the child lived in New Mexico for six consecutive months before the court proceeding was filed. Alternatively, a parent may file for child custody in New Mexico – if the child lived in New Mexico for six consecutive months and therefore was the home state of the child – up to six months from the date that the child was removed from New Mexico. The child’s absence from New Mexico does not instantly deprive New Mexico of home state jurisdiction, unless the child has lived in another state for six consecutive months.
The second scenario is Significant Connection Jurisdiction. Assuming that the child has not lived in New Mexico for six consecutive months, New Mexico can still exercise jurisdiction if the child has significant ties to New Mexico and substantial evidence concerning the child is available in Albuquerque, New Mexico. The court considers factors such as the child’s school, family, medical information, primary care physicians, friends and recreational activities. Nevertheless, a child is not required to be physically present in New Mexico for New Mexico to exercise jurisdiction based on significant connections. Additionally, more than one state can argue that it has significant connection jurisdiction – but only one state may ultimately exercise jurisdiction. In these situations the two states with significant connection jurisdiction will communicate with each other – under a UCCJEA teleconference – to determine which state shall exercise jurisdiction over the child custody proceedings. In the event that both courts are unable to reach an agreement, the court where the proceedings were first filed may move forward with the other court dismissing its proceedings.
The third scenario is More Appropriate Forum Jurisdiction. In this situation Albuquerque, New Mexico could exercise jurisdiction when both the Home State and the state with significant connections refuses to exercise jurisdiction – in favor of New Mexico – on the grounds of inconvenient forum or unjustifiable conduct.
The fourth scenario is Catch All Jurisdiction. In this situation Albuquerque, New Mexico could exercise jurisdiction over an initial custody proceeding, in the event that none of the situations discussed above are present.
The fifth and final scenario involves Temporary Emergency Jurisdiction. In this final situation, New Mexico has temporary emergency jurisdiction when a child in Albuquerque, New Mexico has been abandoned or when emergency protection is necessary because a child, sibling, or parent of the child has been subjected to or is threatened with mistreatment or abuse. Under the UCCJEA, New Mexico may exercise emergency jurisdiction and make temporary orders, even if a court proceeding has been initiated in another state.
Once Albuquerque, New Mexico exercises jurisdiction and enters an order – based on one of the five scenarios above – New Mexico will have exclusive, continuing jurisdiction to modify its order until one of the following events occur: (1) Albuquerque, New Mexico loses significant connection jurisdiction, (2) The child, the child’s parents, and any person acting as the child’s parents no longer live in the State.
If New Mexico has exclusive, continuing jurisdiction, no other State may modify Albuquerque, New Mexico’s child custody order – even if the child moves and establishes a new Home State. A court in the child’s new Home State – or any other state for that matter – cannot modify Albuquerque, New Mexico’s order unless and until New Mexico loses exclusive, continuing jurisdiction, or declines to exercise jurisdiction because another state is the more appropriate forum, with the child’s new Home State demonstrating jurisdiction based on one of the five elements discussed above.
