4.1 Procedural Context
Domestic violence and child custody issues can combine before the New Mexico courts in four types of cases:

• Criminal cases charging domestic violence crimes.
• Child abuse and neglect cases.
• Civil domestic violence proceedings.
• Domestic relations proceedings.

In handling these kinds of cases, the court should recognize that domestic violence can affect children both directly and indirectly:

• Direct victimization: Children can be directly subject to acts of domestic violence. The definition of domestic abuse in New Mexico includes "harm or threatened harm to children" as set forth in the Family Violence Protection Act §40-13-1. The actions subject to the provisions of the Act, through the definition of domestic abuse in §40-13-2(C), are:

  o Physical harm.
  o Severe emotional distress.
  o Bodily injury or assault.
  o A threat causing imminent fear of bodily injury by any household member.
  o Criminal trespass.
  o Criminal damage to property.
  o Repeatedly driving by a residence or work place
  o Telephone harassment.
  o Stalking.
  o Harassment.
  o Harm or threatened harm to children "as set forth in the paragraphs of this subsection."

• Indirect victimization: Children can be victimized by other forms of domestic violence in a number of ways, such as:

  o Modeling of inappropriate and destructive behavior in relationships.
  o Creation of an atmosphere of violence, fear, and tension.
  o Behavioral changes in the victim parent in response to domestic abuse.
  o Use of children as a means by which an abuser parent maintains contact with or leverage over the victim parent.
  o Disruption of the child's academic, social or physical activities and development.
  o Threatening to harm or abandon pets, sometimes after newly acquiring them.

4.1.1 Criminal Cases
Criminal cases involving domestic violence and child custody can arise before district, metropolitan and magistrate courts, and municipal courts where municipalities enact appropriate ordinances. The court can respond as follows:

• In setting pre-trial conditions of release: The court should consider the effect of past violence and the risk of future violence, and establish conditions of release that protect the alleged victim and the children.
• In establishing conditions of probation: The court should require compliance with any existing court order for the protection of the victim or the children. The court should determine whether additional special conditions of probation are necessary to provide the victim or the children with even broader protection.

4.1.2 Child Abuse and Neglect Cases
Where domestic violence creates an abusive situation and children are taken into state custody, the court can require that the abuser obtain treatment as a condition of visitation with the children. See Lucero v. Pino, 1997-NMCA-089, 124 N.M. 28, 946 P.2d 232 (Ct. App. 1997). See generally New Mexico Child Welfare Handbook: A Legal Manual on Child Abuse and Neglect, Institute of Public Law (2000).

4.1.3 Civil Domestic Violence Proceedings
Civil domestic violence proceedings arise before district or metropolitan courts or domestic violence commissioners. The case may be postured as follows:

• Without accompanying divorce or child custody proceedings: The court should exercise its jurisdiction to protect the alleged victim and the children, keeping in mind that any custody orders must be designed to effect the best interests of the children.
• Where there are pending separate divorce or child custody proceedings: The court should take emergency action as necessary to protect the alleged victim and the children, and transfer the child custody issues to the court handling the domestic relations case.
• In domestic relations cases where child custody is at issue: These cases are heard in the district courts. The court should make custody determinations to effect the best interests of the children, and recognize and plan for the effects of domestic violence, past and future, upon the children.

4.2 Custody Issues in Civil Domestic Violence Cases

4.2.1 Emergency Action to Protect Alleged Victims and Children
If the judge has probable cause from the allegations of the petition for an order of protection to believe that children have been threatened with or actually harmed, a temporary (10-day) order of protection may be designed to protect the petitioner as well as any other household member, including children. §40-13-4. A variety of provisions are authorized, but the temporary relief granted must be specifically stated. §40-13-5(A).

• Housing: The court may separate the parties, requiring the alleged abuser to move out of the family home or to provide suitable alternative housing for the petitioner and the children pending a hearing. This applies to children to whom the alleged abuser owed a legal duty of support. §40-13-5(A)(1).
• Custody: The court may make a temporary award of child custody, as well as temporarily establish visitation rights and support obligations. §40-13-5(A)(2). The domestic violence court's primary consideration is the safety of the victim and the children. §40-13-5(A)(2). Custody of pets may be addressed in the order as well.

4.2.2 Transfer of Issues Where Other Custody Cases Are Pending
Proceedings under the Family Violence Protection Act are independent of other domestic relations cases. §40-13-3(E). The petitioner should inform the court at the outset of the pendency of other domestic cases. §40-13-3(C). If temporary protection requires alteration of an existing order of custody or support, the temporary order should say so. §40-13-5(C). The order should plainly inform the parties of the need to address such issues in the domestic relations forum.

After the initial order, child custody and support issues are transferred to the court handling the pending domestic relations case. §40-13-5(C). It is strongly recommended that the court arrange for the court in which the domestic relations case is pending to hear the 10-day proceeding and consider consolidation of that issue with the DR case. This can avoid situations where the temporary order expires and leaves no order of protection in place. The Family Violence Protection Act does not expressly require any formal order of transfer. Language in the temporary order recognizing the legal requirement of transfer and informing the parties may be sufficient under the Act.

It is a good practice in any case to provide a copy of the temporary order to the domestic relations court so that it may be aware of:

• Any temporary changes in its custody and support award.
• The potential need for future hearings to review custody and support.

4.2.3 Resolution of Issues Where No Other Custody Cases Are Pending
Minor Party. If one of the parties (petitioner or respondent) is a minor, the court should appoint an attorney or guardian ad litem for that party. Lucero v. Pino, 1997-NMCA-089, 124 N.M. 28, 946 P.2d 232 (Ct. App. 1997).

Duration of Custody or Support Orders. An initial order awarding child custody or support under the Family Violence Protection Act expires six months after the date of entry. §40-13-6(B). Petitioner must show good cause for an extension; an extension for six additional months or less may then be granted. §40-13-6(B).

4.2.4 Modification of Protection Orders Involving Child Custody or Support
As distinguished from custody or support orders in domestic relations cases, under the Family Violence Protection Act the parties may request modification without showing proof of a substantial or material change in circumstances. §40-13-5(E). Although the statute does
not clearly say so, this provision is probably restricted to domestic violence cases where there is no pending domestic relations case.

Once custody and support issues are transferred to the domestic relations court, the domestic violence court would appear to have no more jurisdiction over those issues in the absence of new allegations of domestic abuse that require further emergency action under the Family Violence Protection Act. Compare Lucero v. Pino, 1997-NMCA-089, 124 N.M. 28, 946 P.2d 232 (Ct. App. 1997).

4.2.5 Enforcement
Child custody and support provisions in an order of protection may be enforced, as with any other provision in the order, by:

• Arrest without warrant if the police have probable cause that a violation has been committed. §40-13-6(C). But see the caveat discussed above at §3.3.1.
• Criminal misdemeanor punishment. §40-13-6(E). The Act requires that restitution and counseling, at the offender's own expense if possible, be ordered. §40-13-6(F).
• Sanctions for contempt of court. §40-13-5(B). This may raise a double jeopardy bar to criminal prosecution. See State v. Powers, 1998-NMCA-133, 126 N.M. 114, 967 P.2d 454 (Ct. App. 1998) and State v. Gonzales, 1997-NMCA-039, 123 N.M. 337, 940 P.2d 185 (Ct. App. 1997).

4.3 Domestic Violence Issues in Child Custody Cases

4.3.1 Mediation
In domestic relations cases where issues are raised under the Family Violence Protection Act, mediation may not be ordered unless the court is first assured that the parties will be safe and the proceedings will be fair. §40-13-3(D).

4.3.2 "Best Interests of the Child" Standard
In New Mexico, the primary consideration in child custody determinations is the best interests of the child. §40-4-9(A). As listed in §40-4-9(A), relevant factors include:

• Parents' wishes.
• Child's wishes.
• Child's interaction and interrelationship with parents, siblings and any other person who may significantly affect the child's best interest.
• Child's adjustment to home, school and community.
• Mental and physical health of all individuals involved.

If the child is 14 years old or older, the court must consider the child's desires before making a decision, §40-4-9(B), although the court is not required to honor or grant those desires.

4.3.3 Presumption in Favor of Joint Custody
New Mexico law requires courts to begin an initial custody analysis presuming that joint custody is in the best interests of the children. §40-4-9.1(A). Some other states, and many advocacy organizations, believe that a court should not follow a presumption of joint custody where domestic violence is involved. New Mexico courts are bound by law to follow the presumption of joint custody, but domestic violence may be sufficient, alone or in combination with other factors, to overcome the presumption in individual cases.

The court is expressly required to consider any history of domestic abuse in making the custody determination. In addition to the factors in §40-4-9(A) concerning the "best interests" principle, §40-4-9.1(B) sets forth a list of factors that must be considered in determining whether joint custody is in the best interests of the child. One of these specifically addresses the history of domestic violence and the safety of the child:

"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."

The other factors under §40-4-9.1(B) are:

• Whether the child has established a close relationship with each parent.
• 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.
• 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.
• 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.
• Whether each parent is able to allow the other to provide care without intrusion; to respect the other's parental rights and responsibilities and his or her right to privacy.
• The suitability of a parenting plan for the implementation of joint custody, preferably, although not necessarily, one arrived at through parental agreement.
• Geographic distance between the parents' residences.
• Willingness or ability of the parent to communicate, cooperate or agree on issues regarding the child's needs.

The court must set forth in the record its analysis of these and any other factors in awarding custody. §40-4-9(I).

4.3.4 How Domestic Violence Affects the Analysis

Best Interests Analysis. The existence of domestic violence may:

• Be a significant feature of the children's interrelationship with parents or parent figures.
• Contribute to a child's adjustment difficulties, if any.
• Affect the court's assessment of the mental health of the individuals involved.

Additional Joint Custody Factors. The presence of actual or threatened domestic violence can affect nearly all of the individual statutory factors noted above, but is especially determinative of:

• The ability of the parents to meet the children's needs. See, e.g., In re Eventyr J., 120 N.M. 463, 902 P.2d 1066 (Ct. App. 1995) (affirming district court finding, in an abuse and neglect case, that mother had shown her inability to meet children's needs by exposing them to domestic violence.).
• Whether the abuser will allow the victim to parent without intrusion.
• The willingness of both parents to communicate, cooperate or agree on child-raising issues. See, e.g., Creusere v. Creusere, 98 N.M. 788, 653 P.2d 164 (1982) (a high level of incompatibility between the parents may justify sole custody.).

In addition, the abuser's visitation rights and support obligations can become a forum for further abuse.

4.3.5 Modification of an Award of Child Custody in Domestic Relations Cases

From Joint Custody to Sole Custody. Failure of parents under joint custody to work together in the best interest of the children may authorize a court to redetermine legal custody. See Strosnider v. Strosnider, 101 N.M. 639, 686 P.2d 981 (Ct. App. 1984).

From Sole Custody to Joint Custody. In subsequent determinations, under §40-4-9.1(A) sole custody may not be changed to joint custody unless:

• There is a substantial and material change in circumstances since prior determination affecting the welfare of the child; and
• Joint custody is now in the best interests of child.

Changing Physical Custody without Changing Legal Custody. This change requires a showing of a substantial change since the final order in:

• The circumstances of the custodial home; or
• The capacity of the custodial parent.

See, e.g., Campbell v. Alpers, 110 N.M. 21, 791 P.2d 472 (Ct. App. 1990)

4.3.6 Considerations When Other Family Members Request Custody
This discussion is limited to private custody disputes and does not apply to child abuse or neglect cases involving the state.

In custody disputes between parents and nonparents, New Mexico follows a modified version of the “parental preference doctrine.” This doctrine “holds that in a custody contest between a parent and a nonparent, the parent should generally prevail unless he or she is found unfit.” Thomas-Lott v. Earles, 2002-NMCA-103, ¶ 14, 132 N.M. 772. This doctrine is consistent with §40-4-9.1(K), which states: “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.”

When granting custody of a child to a nonparent, the court must make an express finding that the parent is unfit. The courts have determined that a parent is unfit when the parent is unable to care for the child, because of parental inadequacies or conduct detrimental to the child, such as abuse, neglect, or abandonment. Domestic violence may be a relevant factor in determining a parent’s fitness—both for the abusing parent’s fitness and the victim parent’s fitness. An abused parent’s failure to recognize the harm to a child caused by domestic violence, or failure to get help in ending an abusive situation, may be factors in determining whether a parent is neglecting a child. Cf. State ex rel. Children, Youth & Families Dep’t. v. Tammy S., 1999-NMCA-009, ¶¶ 17-18, 126 N.M. 664.

The parental preference doctrine has been limited by the courts, so that “[a] parent who is an otherwise fit custodian can be denied custody based on a finding that ‘extraordinary circumstances’ justify such a decision.” Thomas-Lott at ¶ 15, (quoting In re Adoption of J.J.B., 119 N.M. 638, 652 (1995)). Extraordinary circumstances exist when there is a “substantial likelihood of serious physical or psychological harm [to the child] . . . or serious detriment to the child.” Id. at ¶ 25 (internal citations and quotations omitted). The courts have recognized lengthy separations between parent and child as extraordinary circumstances, but have not yet decided whether domestic violence presents an extraordinary circumstance. In cases involving domestic violence and a request for custody by a nonparent, the court may wish to undertake the following analysis to determine whether a parent is unfit or there are extraordinary circumstances justifying custody with a nonparent:

• Determine whether the request is merely an attempt by one parent to continue a pattern of power and control over the other parent, through other family members or other third parties.
• In cases where a professional submits an evaluation of the custody request, determine whether that professional is specifically trained in the area of domestic violence.
• Ensure that the child does not have responsibility for choosing who has custody.

"Custody and Visitation," Domestic Violence in Civil Court Cases, Family Violence Prevention Fund (1992) at p. 243.

4.3.7 Enforcement

Custody orders may be enforced by:

• Contempt of court sanctions. This typically requires the victim to request relief by written motion.
• Petition under the Family Violence Protection Act. This can occur when a violation of a custody or support order also equates to domestic abuse. The parties need not live together for domestic abuse to occur. §40-13-2(D) (definition of "household member").

4.4 Visitation Provisions
If the parties have a history of domestic violence, visitation provisions should be designed to reduce or eliminate the risk to the victim and children. Visitation and exchanges may be the abuser's best opportunity to affect the victim and obtain the satisfaction of a response.

4.4.1 Counseling
Some courts have required completion of domestic violence counseling requirements as a condition of award or expansion of visitation rights.

4.4.2 Supervised v. Unsupervised Visits
Past or potential harm or threatened harm to children weighs in favor of greater supervision of visitation with the abuser. Extreme cases may justify an award of little or no visitation.

4.4.3 Restrictions on Place or Time of Exchange
To assure the safety of the children and the domestic violence victim, the court may:

• Prohibit the abuser from coming to the residence of the victim to make the exchange unless the victim's safety can be assured.
• Require the exchanges to take place in a public and well-populated place, at a social service agency or at the local police station, if there is a potential for abuse at the exchanges. It is helpful if the court maintains familiarity with local social service resources, the scope of their services and their fee structures.
• Ensure that the guidelines for exchanges are sufficiently definite so that the abuser cannot manipulate them to exercise control over the victim.
• In appropriate cases, reduce or eliminate the ability of the parties to depart from a pre-set schedule, or delegate the authority to make changes to a strong third party, such as a parenting coordinator or special master.

4.4.4 Communication

The court may consider restricting communication by:

• Prohibiting the parties from communicating through the children.
• Prohibiting the parties from making negative statements about the other party in the presence of the children.

The court should further consider imposing a requirement that all communications between the parties be in writing. This will both minimize communications and make judicial oversight of the appropriateness of any communications far more practical, by avoiding unverifiable charges and countercharges about statements made.

4.5 Expert Testimony

The court has authority to appoint an expert witness under Rule 11-706 of the Rules of Evidence. An expert witness may assist the court in determining:

• Protective measures essential to safeguard the child and abused parent.
• Effective remedies to mitigate against the potential long-term consequences of past violence to assure the post-separation adjustment of the child and the abused parent.
• Reasons that an abused parent may not have acted with the best judgment in parenting in the past.
• Whether the abused parent can adequately parent once protected from the ongoing violence.

"Custody and Visitation," Domestic Violence in Civil Court Cases, Family Violence Prevention Fund (1992), p. 216-217.

4.6 Confidentiality
Confidentiality is appropriate in some domestic violence proceedings due either to legal privileges against disclosure or for the protection of the victim.

4.6.1 Psychotherapist-Patient Privilege
Rule 11-504 governs the psychotherapist-patient and physician-patient privilege. According to the rule:

"A patient has a privilege to refuse to disclose and to prevent any other person from disclosing confidential communications, made for the purposes of diagnosis or treatment of the patient's physical, mental or emotional condition, including drug addiction, among the patient, the patient's physician or psychotherapist, or persons who are participating in the diagnosis or treatment under the direction of the physician or psychotherapist, including members of the patient's family."

The abuser as well as the victim may be able to maintain some privacy about the content of any therapy if the requirements of the rule are met.

4.6.2 Husband-Wife Privilege
Rule 11-505 governs the privilege between spouses:

"A person has a privilege in any proceeding to refuse to disclose and to prevent another from disclosing a confidential communication by the person to that person's spouse while they were husband and wife."

The privilege does not apply in civil actions where the husband and wife are opposing parties. Rule 11-505(D)(3).

4.6.3 Victim's Address and Phone Number
In appropriate cases, the court should be prepared to keep the victim's address and phone number sealed in court records to protect the victim from further violence.

4.7 Child Witnesses

4.7.1 Required Child Testimony
In a child custody case, the court must consider the desires of a child fourteen or older, §40-4-9(B), which may be expressed by the child, a guardian ad litem or a Rule 706 expert child custody evaluator, and must consider the wishes of younger children, §40-4-9(A). If the court chooses to take the child's testimony, this is done in chambers with a court monitor or court reporter, but without parties or their counsel. §40-4-9(C). If the hearing is tape recorded, the parents are not allowed to listen to the tape unless an appeal is taken. §40-4-9(C). To ensure compliance with this provision, the tape should be labeled and stored separately.

4.7.2 Discretionary Child Testimony
In other cases, the court may be called upon to balance the value of a child's testimony against the harm to the child that would result. Rule 11-601 governs the competency of witnesses, stating that "every person is competent to be a witness except as otherwise provided in these rules."

The court should be aware of the potential for bias in the child's testimony through the power of one or both parents to manipulate the child. The potential harm to a child witness may include:

• Trauma of reliving past violence.
• Trauma of being placed between warring parents.
• Damage to future relationship with parents.

The court may need expert testimony to assess the potential harm to a child of testifying in a particular case.

With child witnesses, there may be a tension between protecting the child and assuring due process for the parties. There is no right under the Sixth Amendment to the U.S. Constitution to confront a child witness in a civil trial.

For a detailed discussion of child witnesses, see Chapter 27 (Evidence) of the New Mexico Child Welfare Handbook: A Legal Manual on Child Abuse and Neglect, Institute of Public Law (2003 Update).

4.8 Court Procedure When Issuing Custody and/or Visitation
Orders

4.8.1 Use of Specific Language in Orders
Many courts have found that custody and visitation orders in domestic violence cases are most effective when they contain very specific language regarding conditions of the order and specify how future disputes between the parties will be resolved. This prevents either party from taking advantage of any loopholes or ambiguities (e.g. "reasonable visitation") resulting from nonspecific language. In addition, law enforcement officers report that they have difficulty enforcing orders with ambiguous conditions.

Examples of specifically worded conditions:

• Visitation shall take place every first and third Saturday from 10 a.m. to 3 p.m., at the home of and in the presence of Mary Smith, plaintiff's aunt, at 123 Main St., City. The plaintiff is responsible for dropping off the child by 9:45 a.m. and picking up the child at 3:15 p.m. In the event that visitation cannot take place, the party must telephone Mary Smith at (123) 456-7891 by 8:30 a.m., and visitation shall then take place the following Saturday with the same provisions.
• If respondent wishes to exercise visitation rights, he must call Mary Smith at (123) 456-7891 by 10 a.m. the day before. Mary Smith shall then call the plaintiff.
• Respondent shall consume no alcohol or illegal drugs during the 12 hours prior to and during visitation. If Respondent appears to have violated this provision, Mary Smith is authorized to deny him visitation that week
• Visitation is conditioned upon respondent receiving weekly batterer's counseling from X organization, for a certain period of time, e.g., 1 year.
• Visitation may be denied if the respondent is more than 30 minutes late and does not call by 8 a.m. to alert plaintiff to this (to prevent custodial parent and child spending all day waiting for the other parent, who never comes).
• (If there is a third party available for pick-up and drop-off, or supervised visitation): Plaintiff must arrive at the drop-off location 20 minutes before respondent and leave before respondent arrives. At the end of visitation, respondent must remain for 20 minutes while plaintiff leaves with the children. (This prevents respondent following plaintiff to harass her or ascertain the location of her new residence.)
• (If there is no third party available, even for exchanging the children) Drop off and pick up of the children shall occur in the lobby of the local police department. Respondent shall remain at least 20 min. after plaintiff has left after dropping off the children, and again when plaintiff leaves with the children at the end of visitation. (See above comment.)

4.8.2 Pro Se Parties
The court may want to carefully question visitation terms where the abused party is pro se, especially where there is a consent agreement. Because of the abuser's control and her fear, the battered spouse may agree to custody provisions that are not really desirable for herself or for the children. The battered spouse also may feel pressured to agree to inadequate financial support or inequitable distribution of assets in exchange for a custody or visitation agreement that is more protective of the children.

4.8.3 Safety Concerns in the Courtroom

Examples of how safety concerns in the courtroom may be addressed include:

• Establishing and maintaining secure courtroom facilities.
• Assuring that courtroom security personnel are present during domestic violence cases.
• Ordering the bailiff to detain the perpetrator for 20 minutes after a domestic violence hearing or trial to give the battered party time to leave without being followed.

4.8.4 Court-Provided Resources and Information
Resource lists of local shelters, perpetrator treatment programs, legal assistance, etc. should be compiled and made readily available to both parties. When the plaintiff is unrepresented, it is helpful if the court clerk makes an extra copy of the custody/visitation order for the plaintiff.

4.9 Visitation by Grandparents
This section addresses the rights of grandparents to visit with grandchildren over the objection of a custodial parent. Grandparents’ right to visitation is relevant to a discussion of domestic violence because the parents of an abuser may seek visitation with grandchildren in order to allow the batterer continued access to the children and the battered spouse—even when a court has prohibited contact by the batterer. Consequently, courts must be very careful and deliberate when deciding whether to grant a petition for visitation under the Grandparent’s Visitation Privileges Act.

Courts must also be careful when granting grandparent visitation in cases where the custodial parent objects because parental rights are fundamental constitutional rights. Thus, courts must consider a parent’s due process rights when applying the Grandparent’s Visitation Privileges Act.

For example, in Troxel v. Granville, 530 U.S. 57 (2000), the U.S. Supreme Court held that the trial court infringed on the mother’s fundamental right to make childrearing decisions when it granted the grandparents visitation without giving any special weight to mother’s assessment of an appropriate amount of visitation for her children, when it shifted the burden of persuasion to the mother to disprove that visitation would be in the best interest of the children, and when it substituted its judgment for the mother’s without any evidence of parental unfitness. Although the Court intimates that a certain deference must be paid to the parent’s wishes, the Court does not establish a bright-line rule requiring a finding of parental unfitness before a court may “veto” the parent’s wishes and allow grandparent visitation.

Since Troxel, the New Mexico Court of Appeals has twice considered the application of the New Mexico Grandparent’s Visitation Privileges Act in three cases. Deem v. Lobato, 2004-NMCA-102, 136 N.M. 266; Gutierrez v. Connick, 2004-NMCA-017, ¶ 17, 135 N.M. 217; Williams v. Williams, 2002-NMCA-074, 132 N.M. 445. In Williams v. Williams, 2002-NMCA-074, 132 N.M. 445, 2002-NMCA-074, the parents relied on Troxel to argue that an order allowing grandparental visitation against their wishes was unconstitutional because the court did not make a finding of parental unfitness and did not give any special weight to the parents’ wishes. The Court of Appeals held that the visitation order was consistent with Troxel and was constitutional, finding that the trial court gave sufficient consideration and weight to the parent’s wishes in light of the long and extensive relationship between the child and the grandparents and the court’s documented concerns about the custodial parent’s ability to be a good parent. The Court further held that Troxel does not require a formal finding of parental unfitness in order to grant grandparent visitation over the objection of the parents. Instead, the Court concluded that Troxel simply requires the presence of “special factors regarding parental unfitness,” which may include the court’s concern over a parent’s ability to fulfill his or her parental responsibilities in an appropriate manner short of parental unfitness.

More recently, the Court of Appeals reversed an order granting grandparental visitation because the grandparents failed to meet their burden of demonstrating factors that support visitation and that show visitation would be in the child’s best interests. Indeed, the trial court found only that the grandparents were the paternal grandparents of the child, that the parents had a very unstable relationship, that the grandparents had a stable relationship with the child’s father, and that, in the court’s view, visitation would be in the child’s best interests. The trial court made no findings about the parents’ fitness, about the child’s relationship with the grandparents, or about any of the other factors delineated by §40-9-2(G). Given these limited findings, the appellate court concluded that the grandparents had not presented “sufficient evidence to relax the concern about infringement on a fit parent’s fundamental right to make decisions about the care, custody, and control of his or her child,” and therefore reversed the order allowing visitation. Gutierrez v. Connick, 2004-NMCA-017, ¶ 17.

4.9.1 Applicability

New Mexico's Grandparent's Visitation Privileges Act, §40-9-1, defines "grandparent" in §40-9-1.1 as:

• The biological grandparent or great-grandparent of a child; or
• A person who becomes a grandparent or great-grandparent due to the adoption of a minor child by a member of that person's family.

4.9.2 Availability

In Certain Proceedings. Under §40-9-2(A), the court may order grandparent visitation privileges either as part of or after a judgment in the following proceedings:

• Dissolution of marriage.
• Legal separation.
• Paternity under the Uniform Parentage Act (§40-11-1). (Under §40-11-7(A), putative grandparents have standing as interested parties to sue to establish a parent-child relationship for the purpose of establishing themselves as maternal or paternal grandparents in order to obtain visitation privileges. Gutierrez v. Connick, 2004-NMCA-017, ¶ 14, 43 N.M. Bar Bulletin No. 6 at 21 (Feb. 12, 2004)).

By Petition. The circumstances in which a grandparent may petition for visitation of a minor child are:

• If one or both of the child's parents are deceased, any grandparent of the child may petition the district court for visitation privileges. §40-9-2(B).
• If the child once resided with the grandparent and the following conditions are met, the grandparent may petition the court for visitation:

  o The child resided with the grandparent for at least three months and the child was less than six years old at the beginning of that period, §40-9-2(C), OR the child resided with the grandparent for at least six months and the child was at least six years old at the beginning of that period, §40-9-2(D); AND
  
  o the child resided with the grandparent for at least six months and the child was at least six years old at the beginning of that period, §40-9-2(D); AND
  
  o the child was subsequently removed from the grandparent's home by the child's parent or any other person, §40-9-2(C), (D); AND
  
  o the child's home state is New Mexico under the Child Custody Jurisdiction Act (§40-10-1), §40-9-2(C), (D).

• If the child has been adopted, or adoption is sought, by one of the following people, under §40-9-2(E) the biological grandparent may petition the court for visitation:

  o Stepparent.
  o Relative of the child.
  o A person designated to care for the child in the deceased parent's will.
  o A person who sponsored the grandchild at a baptism or confirmation conducted by a recognized religious organization.

• If the 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." §40-9-2(F). This does not apply if the parental rights are terminated or relinquished and the child is adopted by a nonstepparent. But see Lucero v. Hart, 120 N.M. 794, 907 P.2d 198 (Ct. App. 1995) (legislature intended to allow the court to grant grandparent visitation if in best interests of child even though grandparent’s son relinquished parental rights).

Limits on Filing. Grandparents may file a petition no more than once a year, unless good cause is shown. §40-9-3(B).

4.9.3 Factors to Consider
The standard for a determination of grandparent visitation is whether visitation is in the best interests of the child, based on an evaluation of the child's physical, intellectual, and moral well-being. Lucero v. Hart, 120 N.M. 794, 907 P.2d 198 (Ct. App. 1995). The burden of proof is on the grandparent, Ridenour v. Ridenour, 120 N.M. 352, 901 P.2d 770 (Ct. App. 1995). When considering a grandparent's petition for visitation with a child, the court is required to assess all of the following factors:

• Any factors relevant to the best interests of the child.
• The prior interaction between the grandparent and the child.
• The prior interaction between the grandparent and each parent of the child.
• The present relationship between the grandparent and each parent of the child.
• Time-sharing or visitation arrangements that were in place prior to filing of the petition.
• The effect the visitation with the grandparent will have on the child.
• If the grandparent has any prior convictions for physical, emotional or sexual abuse or neglect.
• If the grandparent has previously been a full-time caretaker for the child for a significant period.

The court has discretion to assess the following factors, according to Lucero v. Hart, 120 N.M. 794, 907 P.2d 198 (Ct. App. 1995):

• Love, affection and other emotional ties that may exist between the grandparent and the child.
• Nature and quality of the grandparent-child relationship and the length of time it has existed.
• Whether visitation will promote or disrupt the child's development.
• Physical, emotional, mental and social needs of the child.
• Wishes and opinions of the parents.
• Willingness and ability of the grandparent to facilitate and encourage a close relationship between the parents and child.

When assessing whether grandparents should have visitation with a child from a family with domestic violence, the court should consider whether the request for visitation is merely an attempt by an abusive parent to continue a pattern of power and control over the other parent or an attempt by the abusive parent to have unsupervised contact with a child when such contact has been otherwise limited or eliminated by the court. Such an assessment is permissible as consideration of “factor[s] relevant to the best interest of the child,” of whether visitation will promote or disrupt the child’s development, and as an aspect of the physical, emotional, mental and social needs of the child.

4.9.4 Tools for the Court

When a grandparent's visitation privileges are at issue, the court may:

• Order mediation and evaluation in any matter. If the judicial district has established a domestic relations mediation program under the Domestic Relations Mediation Act (§40-12-1), the mediation shall comply with that Act. Upon motion and hearing, the district court must act promptly on the recommendations set forth in a mediation report. §40-9-2(H).
• Appoint a guardian ad litem for the child if the parent challenges the petition. Lucero v. Hart, 120 N.M. 794, 907 P.2d 198 (Ct. App. 1995).

4.9.5 Scope of the Visitation Privilege

Visitation Granted. The court may grant a grandparent reasonable visitation privileges that are not in conflict with the child's education or prior established visitation or time-sharing privileges. §40-9-2(A). The court is required to issue any necessary order to enforce the visitation privileges. §40-9-3(A). If a grandparent sues to enforce the visitation order and the court finds that order was violated, the court may award court costs and reasonable attorney fees to the prevailing party. §40-9-3(C).

Visitation Not Granted. If the court decides that grandparent visitation is not in the best interest of the child, the court may order other reasonable contact between the grandparent and the child, including regular communication by telephone, mail or any other reasonable means. §40-9-2(I).

Full Faith and Credit. New Mexico recognizes an order or act regarding grandparent visitation privileges issued by any state, district, Indian tribe or territory of the United States of America. §40-9-4(B).

Temporary Privileges. The court may order visitation on a temporary basis before issuing a final order under the following circumstances:

• If one or both of the child's parents are deceased and a grandparent petitions for visitation. §40-9-2(B).
• Pending mediation or evaluation. §40-9-2(H).

Modification of Visitation. The court may modify the grandparent's visitation privileges upon a showing of good cause by any interested person. §40-9-3(A).

Change of Child's Domicile. When a grandparent has been granted visitation privileges and the child's custodian intends to leave the state or relocate within the state with the intention of changing that child's domicile, under §40-9-4(A) the custodian must do all of the following:

• Notify the grandparent of the custodian's intent to change the child's domicile at least five days prior to the change.
• Give the child's address and telephone number to the grandparent.
• Afford the grandparent the opportunity to communicate with the child.

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