Deciding to move somewhere out of state with your kids is a big decision, particularly if you are no longer with the other parent of the children. You may want to move because of a prospective job, a lower living cost, to be closer to other family members, or just because you want a change of scenery. Whatever your reason is, your ability to leave the State of New Mexico with your children but without their other parent depends on many factors, including your current co-parenting relationship.
The Custody Situation
Right now, who has legal custody of the child according to a legal order issued by the court – you or your former partner? If there are no longer custody orders involved in your family at all, you may be able to simply move without any legal consequences. However, you are not allowed to prevent the child’s other parent from seeing your child without a court order. If you relocate and refuse to let the other parent see your child, it may create a legal issue.
If there are legal custody orders and you are the one who has full (not joint) legal custody, you can make the decision to move out of state on your own, without the permission of the other parent. However, you still may need to seek court permission if your move is going to eliminate or interfere with the other parent’s visitation, as ordered by the court. Since New Mexico prefers to give parents joint legal custody whenever possible, many New Mexico parenting plans state that the children will live in New Mexico and can’t be relocated out of state without a court order or the approval of the other parent.
The Parenting Plan
A well-rounded parenting plan will have provisions that must be followed if one parent decides to relocate. One example of these types of terms is when parents are living less than 50 miles apart, a relocating parent must send the other parent notice of a move that would make their homes 100 miles or more apart at least 60 days before the planned move date.
Should parents not be able to agree on a move, they may have to try mediation–settlement and negotiation meetings with a third party not involved in the case–and create a new parenting plan that the court approves of. If the parents can’t reach an agreement over the relocation and/or other terms of the new plan, the parent who wants to relocate has to go to court and show how the move is in the best interest of the child to move. Naturally, this is an issue that is taken very seriously by the court because it can impact one parent’s ability to see their child, so having an experienced family law attorney to assist you here is strongly recommended.
Moving a child out of New Mexico without letting the other parent know or in violation of any court order is considered to be custodial interference, which is a very serious criminal offense. If you are found guilty of custodial interference, you could be facing charges of contempt, time in jail and other consequences, such as having to pay the attorney and legal costs of the other parent. Beyond the penalties you could face in family court–which may include losing some or all access to your child–this type of interference falls under criminal kidnapping laws in New Mexico.
If you need to move your kids out of state, speak to an attorney as soon as you can and before you take any action. Similarly, if your child’s other parent is thinking about moving the kids out of state, talk to an attorney to protect your rights and ensure you are able to see your children.