The Court of New Mexico favors the notion that following a relationship breakdown, children of that relationship should spend time with both of their parents. However, there are some instances in which compelling evidence exists that supports withholding or limiting a child’s contact with one of their parents for their own safety and well-being.
What is Kayden’s Law?
Kayden’s Law is officially known as the “Keeping Children Safe from Family Violence Act” [1] and is derived from the case of Kayden Mancuso, a 7-year-old girl who was killed by her father during a period of court-ordered unsupervised visitation that her mother had repeatedly objected to during custody discussions.
Its aim is to protect children during custody battles by implementing a rigorous program of training for court professionals, allowing them to assess a wider portfolio of evidence related to abuse allegations against a parent. It requires calling on child custody experts to testify in custody hearings who are qualified and experienced professionals, removes the ability to mandate reunification programs, and safeguards custody determinations for protective parents.
This law is not in effect in New Mexico, however the concept surrounding it and need to prevent such events is equally as important to New Mexico Courts as elsewhere.
Assess a wider portfolio of evidence
Historically, some evidence of abusive, neglectful or violent behavior might be deemed as hearsay and excluded from custody hearings, However, since the advent of Kayden’s Law, judges in Pennsylvania must now analyze and consider all forms of evidence related to abuse allegations against a parent when making custody determinations.
Expert child custody professionals
Any individuals called to testify in child custody cases must now be qualified professionals with experience in child abuse and domestic violence cases in Pennsylvania. This is to safeguard against the accused parent leveraging their financial resources to discredit allegations against them.
Eliminating mandated reunification programs
Previously, if a parent claimed they were the victim of parental alienation and a court upheld this determination, the child could be removed from the care of their protective parent and placed with the other parent, often with little thought for their safety and the therapeutic value of the ruling. Kayden’s Law prevents this from happening in Pennsylvania unless valid evidence is submitted to demonstrate how the child would be protected while in the care of their parent.
Safeguarding custody determinations for protective parents
In cases where compelling evidence exists that a child’s well being would not be improved by contact with both parents, the court will uphold a determination of sole custody in Pennsylvania. The court will not remove a child from the care of their protective parent if they raise an abuse allegation against the other parent. Instead, they will consider all of the facts pertinent to the case in reaching a determination that prioritizes the needs and safety of the child.
New Mexico Family Violence Protection Act
Although Kayden’s Law is a significant breakthrough for child custody cases and will safeguard many children, it is not yet law in the state of New Mexico. This means that while its findings and recommendations may be embraced as best practice, law firms that practice child custody in Albuquerque will typically resort to the New Mexico Family Violence Protection Act [2] where there is a significant threat of harm to a child.
This Act provides legal remedies for victims of abuse and domestic violence and aims to safeguard victims and their children from their abuser. Under the New Mexico Family Violence Protection Act, a victim of “domestic abuse” can secure a protective order that prevents their abuser from approaching, contacting or intimidating them and provides immediate criminal penalties if violated. To obtain a protective order, it is necessary to provide evidence of “domestic abuse”. Evidence can, and usually is, simply testimony. However, documenting incidents of abuse will be extremely useful to establish strengthen the case for a protective order.
Domestic Abuse is defined in the Family Violence Protection Act in a variety of ways. It is not simply what people colloquially call “domestic violence” but rather encapsulates multiple forms of abusive behavior, including but not limited to: threats of harm, harassment, strangulation, criminal damage to property, trespassing, severe emotional distress, physical harm or assault, stalking, sexual assault, and “harm to children or threatened harm to children”, which is defined simply as that – harm or threatened harm to children. Therefore, the Act provides wide latitude for the Court to protect children and their parents from persons who may, or have, harmed children. Further, the Act does not only apply to parents, spouses or ex-spouses, but rather applies to anyone who meets the definition of “household member” as follows: a spouse, former spouse, parent, present or former stepparent, present or former parent-in-law, grandparent, grandparent-in-law, child, stepchild, grandchild, co-parent of a child or a person with whom the petitioner has had a continuing personal relationship. A continuing personal relationship is a broad term and would therefore include partners, former partners, friends, coworkers, et cetera. Additionally, cohabitation is not necessary to be deemed a “household member”. Sexual assault and stalking do not require the violator to be a “household member” and therefore an Order of Protection can be obtained against anyone who has committed this type of abuse, regardless of your relationship to them.
It warrants mentioning that the Family Violence Protection Act can be used to modify child custody arrangements, however the Court is one of limited jurisdiction and custody orders resulting from an Order of Protection are limited to six (6) months. Thereafter, parents must bring an independent custody action to obtain a more permanent custody order.
The primary concern of New Mexico Courts is the well-being of the child in custody cases, so it is vital that protective parents who want to safeguard their child from their other parent advocate strongly for their best interests. However, the Family Violence Protection Act also protects parents themselves if they are subject to, or threatened with, “domestic abuse”. As noted above, a party seeking an Order of Protection on behalf of a child will need to provide evidence to substantiate their claim that the child would be at risk of emotional or physical harm if subjected to the unsupervised custody of the other parent. This evidence can simply be in the form of testimony (telling the story in Court of what has occurred), however video, photographic, written, or other evidence will help significantly.
Talk to us
Whether you are a victim of domestic violence, seeking to divorce or separate from an abusive partner, or need to amend a custody determination to safeguard your child’s well being, contact the Law Office of Dorene A. Kuffer today. We are experienced in all aspects of family law and will help you to achieve an outcome that prioritizes your safety and well being and that of your child.
Resources:
[1] https://www.courts.state.co.us/userfiles/file/Administration/family_law_programs/pre/PRE%202023/HB23_1178_signed.pdf
[2] https://nmcourts.gov/wp-content/uploads/2024/01/SRL_Domestic_Violence.pdf