New Mexico

Statutory framework; factor structure: 5 + 9. Sections 40-4-9(A) and 40-4-9.1(B) address different inquiries. The nine joint-custody factors are not necessarily required to modify an existing joint-custody arrangement. See Davis v. Voss, No. A-1-CA-43097, ¶ 13 (N.M. Ct. App. 2026) (non-precedential).

Authority

N.M. Stat. Ann. §§ 40-4-9(A), 40-4-9.1

Source framework

Statutory

Factor structure

5 under § 40-4-9(A); 9 additional joint-custody factors under § 40-4-9.1(B) when determining whether joint custody is in the child’s best interests.

Operative language

shall

Catch-all language

preamble

Presumptions in the original survey

Joint custody in initial determinations, § 40-4-9.1(A)

Child's voice / age rule

14 (hard statutory bifurcation)

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Incompatibility, defined as discord or conflict of personalities destroying the legitimate ends of the marriage relationship and preventing any reasonable expectation of reconciliation.

Authority

N.M. Stat. Ann. §§ 40-4-1 to -3. Official NMOneSource Chapter 40 PDF.

Grounds without a misconduct showing

Incompatibility, defined as discord or conflict of personalities destroying the legitimate ends of the marriage relationship and preventing any reasonable expectation of reconciliation.

Other grounds and proof conditions

Cruel and inhuman treatment, adultery, and abandonment.

Separation

none as a ground

Timing

No separate divorce waiting period identified in the grounds provisions (§§ 40-4-1 to -3). Section 40-4-5 separately conditions dissolution jurisdiction on either party having resided in New Mexico for at least six months immediately preceding filing and having a New Mexico domicile (with military provisions). This is a jurisdictional residence and domicile requirement, not a post-filing waiting period.

Relief without dissolution

Section 40-4-3 permits proceedings concerning property, the disposition of children, and alimony without dissolution when spouses have permanently separated. This is substantive relief without ending the marriage, not an absence of separation remedies.

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Equal footing concerns joint custodians. Jaramillo reserved whether the older sole-custodian presumption survives.

Authority

NMSA 40-4-9.1(J) (Jaramillo)

Court test

general best-interest factors (no relocation-specific list)

Burden classification

equal burden (neither parent favored)

Notice classification

yes

Trigger classification

any move (no distance threshold)

Effect of silence

no (consent or court order required)

What the court weighs

Joint custody: no presumption for or against the relocating parent, and neither parent bears the burden of showing the move is or is not in the child's best interests. Each parent must persuade the court to adopt his or her proposed arrangement or parenting plan, and the court may adopt whatever arrangement best serves the child (Jaramillo, 1991). Sole custody: Newhouse (1988) held that a sole custodian has the right to move with the children and cannot be deprived of it without findings that the move is in bad faith or contrary to the children's interests. Jaramillo describes this as a presumption favoring the relocating sole custodian, with the burden on the other parent, and in fn. 3 says the presumption 'may be open to some question' but expressly declines to decide its continued vitality. No published decision revisiting that question identified. Hopkins (2019) applies Jaramillo to a move of the primary residence out of state.

Who carries the burden

Joint custody: equal footing. The party seeking to change the decree must show the existing arrangement is unworkable (usually met by the move itself), then neither side bears the burden on whether relocation serves the child. Sole custody: the Newhouse presumption for the relocating custodian as described in 1991. Its current status is unresolved.

Notice and safety exceptions

For joint custody, § 40-4-9.1(J)(4)(a) requires a parent planning to change home city or state to give the other parent thirty days’ written notice stating the date and destination. No generally applicable sole-custody relocation-notice period identified.

Which moves trigger the rule

A joint-custody parent's change of home city or state of residence (any distance) triggers the notice. The case-law relocation analysis applies to a proposed relocation of the child. No mileage test.

Objections and the effect of silence

In joint custody, neither parent may make a major change in the child's life until it has been discussed and the parents agree, and if one parent objects 'no change shall occur until the issue has been resolved' (§ 40-4-9.1(J)(3)). Section 40-4-9.1(J)(5) lists the methods: agreement, family counseling, conciliation or mediation, binding arbitration, allocating the decision to one legal custodian, terminating joint custody and awarding sole custody, a special master, or the district court. Either party may initiate a proceeding to alter the arrangement (Jaramillo). No objection deadline.

The modification threshold

A proposed relocation will 'in almost every case' establish the substantial and material change needed to revisit joint custody (Jaramillo), though not automatically.

Other qualifications

The notice provision identified is in the joint-custody statute: thirty days before changing a parent’s home city or state. Jaramillo places joint custodians on equal footing for the best-interest inquiry and expressly reserves the continued vitality of the older sole-custodian Newhouse presumption.

Important qualification

Equal footing concerns joint custodians. Jaramillo reserved whether the older sole-custodian presumption survives.

Burden summary

Joint custodians stand on equal footing. Sole-custodian question reserved.

Notice summary

Joint custody: 30 days before a home-city or state change

Trigger summary

Any move

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