Domestic violence is a pervasive issue that affects the safety and well-being of more than 30% of New Mexico residents every year [1], and it is one that the courts take extremely seriously. Reports of domestic violence in a relationship can significantly increase the complexity of child custody proceedings as protecting the best interest of the child is always the court’s primary focus.
What is defined by law as domestic violence?
Domestic violence is defined in New Mexico law in NMSA 1978 Section 40-13-2(D) and includes not only physical abuse but stalking, threats of abuse and other criteria.
Domestic violence affects adults and children of both sexes, and it can occur in any household regardless of socioeconomic status, age or race. It is absolutely crucial that domestic violence in any capacity is reported to the authorities as soon as possible to safeguard the victim and their family. Anybody who feels threatened by a family member or partner can file for an Order of Protection [2], which will be delivered to their abuser by the local sheriff and prevent them from harassing, stalking or harming them.
How child custody cases proceed when there is an allegation of domestic violence
When someone files an Order of Protection, they can ask that a judge immediately grant them temporary sole custody of their children to protect them from their abuser. They will need to justify why this is necessary and ask that visitation is either entirely withheld or subject to specific conditions to ensure the child’s well-being.
A temporary sole custody order will last for up to six months. In order to extend it, it is necessary to file a separate custody case in district court.
When a custody case is brought to district court seeking sole custody based on an allegation of domestic violence, the court must evaluate the extent to which the child’s safety and well-being would be affected should they be allowed to spend more time with the alleged abuser. New Mexico courts recognize that exposure to violence, even when it is not directed at a child, can have profound effects on their health and happiness.
The court will consider a number of factors in making a determination that prioritizes the child’s well-being. They may include:
– Evidence: They will assess all evidence regarding the domestic abuse allegations, including police reports, medical reports, witness testimony and any other documentation that substantiated the initial temporary custody determination.
– Child’s safety: The court will consider how the alleged abuser has behaved during the course of the temporary custody order, whether they have complied with the judge’s orders (in cases where parenting classes, voluntarily submitting for random drug or alcohol tests, and any other measures are deemed necessary), and whether the child would be safe in their care.
– Parental fitness: The court will consider whether the child will be able to enjoy a safe and nurturing environment with each parent. In cases where domestic abuse allegations are upheld and the child’s safety would be in question, a parent may be deemed unfit to have unsupervised care of their child.
– Impact on the child’s relationship with their parents: In cases where the child wishes to maintain a relationship with both parents, the court will consider the impact on their well-being of being kept away from a particular parent balanced against their likelihood of coming to harm in such a situation in reaching a determination.
– Protective measures: If allegations of domestic abuse are substantiated, the court may order that protective measures are put in place to ensure the safety of the victim and their children, including supervised visitation, permanent orders of protection, or other safeguards deemed appropriate for the circumstances.
Seeking help
The first step in escaping domestic violence is to reach out for help. You do not need legal counsel to apply for an order of protection, and the law will always strive to protect the victim and their family from further harm. If you are in fear of imminent domestic violence or have just been the victim of domestic violence, always call the police first.
If you need legal advice, you should select an experienced firm with a proven track record in child custody in Albuquerque outcomes. A lawyer will be able to advise you on your rights, help you develop a safety plan, obtain an order of protection, and submit custody paperwork on your behalf. They will also be by your side in court, advocating for you and ensuring that you do not face your abuser alone.
At the Law Office of Dorene A. Kuffer, we are experienced in all aspects of family law and are here to help you navigate all of life’s challenges. If you are ready to leave an abusive relationship, contact us today and we will do everything in our power to keep you and your family safe.
Resources:
[1] https://nmcsap.org/wp-content/uploads/DV_Report_2021_Betty_Caponera_dec22web.pdf
[2] https://domesticviolence.nmcourts.gov/