New Mexico Custody and the Chances of Moving Children Out of State

By Jennifer Reynolds

father and son at holiday image by .shock from

With the current divorce rate in the United States hovering around 50 percent as of January 2011, determining child custody is an important issue for many people. It is also an emotional one, as both parents may be fighting for more access, leaving the children caught in the middle. In most cases, custody can be settled amicably in-state, but complications arise if one parent wants to move out of state. New Mexico custody law especially makes this difficult.

Taking Children Across State Lines

Under New Mexico law, there is nothing stopping a parent from transporting a child across state lines temporarily without the other parent's consent. The child cannot be removed permanently, or the transporting parent could be charged with custodial interference, a fourth degree felony in New Mexico. Additionally, if there is an open custody battle or other court order against taking the child out of state even temporarily, doing so could result in a felony charge.

Divorce Decree and Marriage Settlement Agreement

In the initial terms of a divorce, it is always wise to establish custody, visitation and move-away rights before the issues actually arise. This protects both parents in case either one later wants to move out of state. A marriage settlement agreement (MSA) or divorce decree can stipulate that each parent must seek the express permission of the other before taking their minor children across state lines for any reason. These agreements can also have parameters for distance, stating that the child cannot live more than a set distance from the non-custodial parent.

Joint Custody Statute

In 1986, New Mexico's legislature passed a joint custody statute that clearly defines what is and is not considered "joint" custody. Under this law, joint custody does not necessarily mean each parent has equal time with the child, but it does specify that neither parent can "surprise" the other with major changes in the child's life. The law considers issues involving the child's residence, religion, health care, recreation and education to be "major changes," meaning that both parents must consult and agree before making any decisions relating to these areas. In short, neither parent can move away with the child without consulting the other.

Read More: Joint Custody Vs. Full Custody When Parents Don't Get Along

Compelling Reason

Under New Mexico law, any parent wishing to relocate to another state with a child must show a "heavy burden of proof" that she has a "compelling reason" for taking the child out of state. If you can prove you have such "compelling reason," (i.e. moving for economic or job-related reasons such as a transfer, or being stationed with the military. What qualifies as a compelling reason, and how to prove it, varies by jurisdiction), you may be able to move with your child out of state without the express permission of the other parent.

Amicable Divorce

It is always beneficial to the children involved if their divorced parents are amicable and do what is right for the child. The parent with primary custody can move anywhere in the world with the child with permission from the other parent, so as long as an appropriate amount of time and access is granted to the parent staying in New Mexico, and the divorce was amicable. It may be possible to get their permission to move away and avoid the courts altogether.

Consult a Lawyer

Everyone's circumstances vary, so always consult a lawyer before making any plans to move away with your child.