FAMILY LAW PRINCIPLES OF STATE OF NEW MEXICO
I. CONSTITUTIONAL PROTECTIONS.
A. Federal Law—the 14th Amendment.
1. The Fourteenth Amendment provides that no State shall “deprive any person of life, liberty, or property, without due process of law.” Due Process Clause “guarantees more than fair process.” Washington v. Glucksberg, 521 U.S. 702, 719 (1997). Due Process Clause includes substantive component that “provides heightened protection against government interference with certain fundamental rights and liberty interests.” Id., at 720; See also Reno v. Flores, 507 U.S. 292, 301-302 (1993).
2. Due process requires "timely notice reasonably calculated to inform the person concerning the subject and issues involved in the proceeding; a reasonable opportunity to refute or defend against a charge or accusation; a reasonable opportunity to confront and cross-examine adverse witnesses and present evidence on the charge or accusation; representation by counsel, when such representation is required by constitution or statute; and a hearing before an impartial decisionmaker." Lorena R. 1999-NMCA-035, ¶ 26, 126 N.M. 670, 974 P.2d 164 (quoting In re L.V., 240 Neb. 404, 482 N.W.2d 250, 257 (1992)).
3. "[A]bsent a showing that the parents are unfit, parents have a fundamental constitutional right to raise their children." In re Adoption of J.J.B., 117 N.M. 31, 36, 868 P.2d 1256, 1261. In a similar vein, the Court quoted Quilloin v. Walcott, 434 U.S. 246, 98 S.Ct. 549, 54 L.Ed.2d 511 (1978), which stated: “We have little doubt that the Due Process Clause would be offended "[i]f a State were to attempt to force the breakup of a natural family, over the objections of the parents and their children, without some showing of unfitness and for the sole reason that to do so was thought to be in the children's best interest." Id. at 255, 98 S.Ct. at 555 (quoting Smith v. Organization of Foster Families, 431 U.S. 816, 862-63, 97 S.Ct. 2094, 2119, 53 L.Ed.2d 14 (1977). This primary role of the parents in the upbringing of their children is now established beyond debate as an enduring American tradition. Quilloin v. Walcott, 434 U.S. 246, 255 (1978).(“We have recognized on numerous occasions that the relationship between parent and child is constitutionally protected.”).
4. Respondent accepted and continues to accept that she has the sole responsibility as sole parent to determine the upbringing of her children. Parham v. J. R., 442 U.S. 584, 602 (1979) (“Our jurisprudence historically has reflected Western civilization concepts of the family as a unit with broad parental authority over minor children. Our cases have consistently followed that course”); Santosky v. Kramer, 455 U.S. 745, 753 (1982) (discussing “[t]he fundamental liberty interest of natural parents in the care, custody, and management of their child”); Washington v. Glucksberg, 521 U.S. 702, 720 (“In a long line of cases, we have held that, in addition to the specific freedoms protected by the Bill of Rights, the ‘liberty’ specially protected by the Due Process Clause includes the righ[t] … to direct the education and upbringing of one’s children.”).
5. Notice And Opportunity to be heard.
B. Liberty Protections Under Fourteenth Amendment.
1. The liberty interest at issue in this case—the interest of parents in the care, custody, and control of their children—is perhaps the oldest of the fundamental liberty interests recognized by this Court.
2. More than 75 years ago, in Meyer v. Nebraska, 262 U.S. 390, 399, 401 (1923), U.S. Supreme Court held that the “liberty” protected by the Due Process Clause includes the right of parents to “establish a home and bring up children” and “to control the education of their own.”
3. Two years later, in Pierce v. Society of Sisters, 268 U.S. 510, 534-535 (1925), U.S. Supreme Court held that the “liberty of parents and guardians” includes the right “to direct the upbringing and education of children under their control.” They explained in Pierce that “[t]he child is not the mere creature of the State; those who nurture him and direct his destiny have the right, coupled with the high duty, to recognize and prepare him for additional obligations.” Id., at 535.
4. U.S. Supreme Court returned to the subject in Prince v. Massachusetts, 321 U.S. 158 (1944), and again confirmed that there is a constitutional dimension to the right of parents to direct the upbringing of their children. “It is cardinal with us that the custody, care and nurture of the child reside first in the parents, whose primary function and freedom include preparation for obligations the state can neither supply nor hinder.” Id., at 166.
C. Fundamental Rights Protected Under Fourteenth Amendment.
1. In subsequent cases also, we have recognized the fundamental right of parents to make decisions concerning the care, custody, and control of their children. See, e.g., Stanley v. Illinois, 405 U.S. 645, 651 (1972) (“It is plain that the interest of a parent in the companionship, care, custody, and management of his or her children ‘come[s] to this Court with a momentum for respect lacking when appeal is made to liberties which derive merely from shifting economic arrangements’” (citation omitted)); Wisconsin v. Yoder, 406 U.S. 205, 232 (1972) (“The history and culture of Western civilization reflect a strong tradition of parental concern for the nurture and upbringing of their children.
2. This primary role of the parents in the upbringing of their children is now established beyond debate as an enduring American tradition”); Quilloin v. Walcott, 434 U.S. 246, 255 (1978) (“We have recognized on numerous occasions that the relationship between parent and child is constitutionally protected”); Parham v. J. R., 442 U.S. 584, 602 (1979) (“Our jurisprudence historically has reflected Western civilization concepts of the family as a unit with broad parental authority over minor children. Our cases have consistently followed that course”); Santosky v. Kramer, 455 U.S. 745, 753 (1982) (discussing “[t]he fundamental liberty interest of natural parents in the care, custody, and management of their child”); Glucksberg, supra, at 720 (“In a long line of cases, we have held that, in addition to the specific freedoms protected by the Bill of Rights, the ‘liberty’ specially protected by the Due Process Clause includes the righ[t] … to direct the education and upbringing of one’s children” (citing Meyer and Pierce)).
3. In light of this extensive precedent, it cannot now be doubted that the Due Process Clause of the Fourteenth Amendment protects the fundamental right of parents to make decisions concerning the care, custody, and control of their children.
D. New Mexico Due Process.
1. Whenever a proceeding affects or interferes with the parent-child relationship courts must be careful to afford constitutional due process. State ex rel. Children, Youth and Families Dep't v. Stella P., 1999-NMCA-100, ¶ 14, 127 N.M. 699, 986 P.2d 495.
II. NEW MEXICO STATUTE.
A. Section 40 New Mexico Statutes Annotated (“NMSA”)—Domestic Relations.
1. In rem and In personam proceedings.
i. In rem proceedings concern the property of the marital couple:
a. Personal property—separate and community;
b. Real Property—separate and community;
c. Finances—separate and community;
d. Retirement—separate and community.
ii. In personam proceedings concern the marital interests of the marital couple:
a. Separation;
b. Divorce;
c. Custody;
d. Visitation;
e. Alimony;
f. Child support—Worksheet A and B. Section 40-4-11.1. NMSA. Child support; guidelines.
2.
III. FAMILY LAW AND LEGAL PRINCIPLES.
A. Federal And State.
1. Fundamental right to care, custody and control of their children. The interest of parents in the care, custody, and control of their children is a fundamental liberty interest. Troxel v. Granville, 530 U.S. 57, 65, 120 S.Ct. 2054, 147 L.Ed.2d 49 (2000).
2. Parents’ interest in maintaining “a parental relationship with [their] children is a fundamental right that merits strong protection [emphasis added].” Mafin M., 2003-NMSC-015, ¶ 20, 133 N.M. 827, 70 P.3d 1266, (quoting State ex rel. Children, Youth and Families Dep't v. B.J., 1997-NMCA-021, ¶ 11, 123 N.M. 99, 934 P.2d 293).
B. Best Interest of the Child Standard.
1. New Mexico custody determinations follow the best interest of the child standard. In any case in which a judgment or decree will be entered awarding the custody of a minor, the district court shall, if the minor is under the age of fourteen, determine custody in accordance with the best interest of the child….” NMSA 1953 40-4-9. “The “best interest” criterion…is the lodestar for determining a custody award, under both statute and case law in New Mexico, and probably in all other jurisdictions in this country.” Jaramillo v. Jaramillo, 113 N.M. 57, 823 P.2d 299 (1992).
2. In child custody matters, even when the court must protect the rights of the parent, the court has equitable power to fashion a remedy that protects the best interest of the children as well. See In re Adoption of Francisco A., 11,6 N.M. 708, 866 P.2d 1175, 1180-81 (Ct.App.1993).
3. The child's best interests involve an evaluation of the child's physical, intellectual, and moral well being. Pennsylvania ex rel. Husack v. Husack, 273 Pa.Super. 192, 417 A.2d 233, 235 (1979). The Kentucky Court of Appeals has stated:
4. We believe ... that in child custody cases the term 'best interests' has acquired a special meaning; and when used in cases involving the taking of custody from a natural parent and giving it to someone else it means the opposite of being detrimental or harmful to the child's interests rather than indicating the top among several perfectly acceptable choices.
5. In making its determination, the trial court is to consider two issues: First, whether Bookert's fitness as a parent has significantly altered since the trial court's original ruling. Specifically, the court should evaluate whether there is clear and convincing evidence of gross misconduct such as incapacity, moral delinquency, instability of character, or inability to provide J.J.B. with needed care. See Shorty, 87 N.M. at 494, 535 P.2d at 1345 (quoting Wallin v. Wallin, 187 N.W.2d 627, 630 (Minn.1971).
6. Second, the court should determine whether, taking into account all factors, Bookert is capable of reestablishing a healthy parent-child bond with J.J.B. If, despite the development of a psychological parent-child relationship between the adoptive parents and the child, a psychological parent-child relationship can be restored between the natural parent and the child, then granting custody to the natural parent is in the best interests of the child. Cf. In re Peter M., 602 A.2d 1161, 1163 (Me.1992) (stating that "the child's ability to integrate back into the parent's home" is a factor to be considered in determining best interests of child). It is conceivable that the biological parent, though not unfit and not responsible for the disintegration of the parent-child relationship, may still be incapable of reestablishing the necessary parental bond with the child. The preference of the child can also be an important--though not controlling--factor in this matter. The child's age, maturity, and intelligence should be considered in determining his preference. Husack, 417 A.2d at 235. The significance of Bookert's regular visits, if any, with J.J.B., as required by the Court of Appeals post-opinion order, should also be evaluated. Any proof that Bookert is incapable of meeting the psychological needs of his son must be established by clear and convincing evidence.
C. Custody.
1. “Custody” is defined by Subsection 40-4-9.1(L)(2) as “the authority and responsibility to make major decisions [emphasis added] in a child’s best interests in the areas of residence, medical and dental treatment, education or child care, religion, and recreation.”
2. Legal Custody means a legal status created by order of the court or other court of competent jurisdiction or by operation of statute that vests in a person, department or agency the right to determine where and with whom a child shall live; the right and duty to protect, train and discipline the child and to provide the child with food, shelter, personal care, education and ordinary and emergency medical care; the right to consent to major medical, psychiatric, psychological and surgical treatment and to the administration of legally prescribed psychotropic medications pursuant to the Children's Mental Health and Developmental Disabilities Act [32A-6A-1 through 32A-6A-30 NMSA 1978] and the right to consent to the child's enlistment in the armed forces of the United States. NMSA §32A-1-4(P).
3. Joint Custody. Initial determinations of custody are governed by NMSA 1978, Sections 40-4-9 (standards for the determination of child custody) and 40-4-9.1 (standards for the determination of joint custody) (Repl.Pamp.1989). Pursuant to Section 40-4-9, the trial court must determine custody in accordance with the best interests of the child, taking into consideration the following factors: (1) the wishes of the child's parent or parents; (2) the wishes of the child; (3) the interaction and interrelationship of the child with her parents, her siblings, and any other person who may significantly affect the child's best interest; (4) the child's adjustment to her home, school, and community; and (5) the mental and physical health of all individuals involved. Pursuant to Section 40-4-9.1, the legislature has created a legal presumption that joint custody is in the best interests of a child, but joint custody is defined as the joint [110 NM 279] authority to make major decisions in the child's best interests and not an equal division of time or responsibility. See Sec. 40-4-9.1(L)(2), (3); B. Shapiro, Family Law, 17 N.M.L.Rev. 291, 297-98 (1987).
4. “Sole custody” is defined by Subsection 40-4-9.1(L)(8) as “an order of the court awarding custody of a child to one parent.” “Sole custody” is defined as “An arrangement by which one parent has full control and responsibility to the exclusion of the other.” Black’s Law Dictionary, Abridged Seventh Edition (West Group St. Paul, Minn, 2000).
5. It is well-established law that a parent who has been awarded sole physical custody may determine where the child will live, absent proof by the noncustodial parent that the move is against the best interests of the child or motivated by bad faith on the part of the custodial parent. See Alfieri v. Alfieri, 105 N.M. 373, 733 P.2d 4 (Ct.App.1987).
6. It is well-settled that relocation by a parent having sole custody does not constitute the necessary change of circumstances absent evidence of bad motive. See Alfieri v. Alfieri, 105 N.M. 373, 733 P.2d 4 (Ct.App.1987).