According to the Commonwealth Law, the physical presence of the child, while desirable, is not a requirement for the determination of the child’s custody by the court of competent jurisdiction.
The Commonwealth Trial Court has the authority to make a child custody determination by initial or modification decree if any of the following conditions are met: N.M.I. § 1604
- The Commonwealth is the home state of the child at the time of commencement of the proceeding;
- The Commonwealth had been the child’s home state within six months before commencement of the proceeding;
- The child and his or her parents, or the child and at least one contestant, have a significant connection with the Commonwealth; and
- There is available in the Commonwealth substantial evidence concerning the child’s present or future care, protection, training, and personal relationships; or
- The child is physically present in the Commonwealth and has been abandoned;
- The child has been subjected to or threatened with mistreatment or abuse or is otherwise neglected or dependent;
- Another state has declined to exercise jurisdiction on the ground that the Commonwealth is the more appropriate forum to determine the custody of the child; and
- It is in the child’s best interest that the Commonwealth Trial Court be appointed.
The child’s physical presence in the Commonwealth, or the child’s physical presence with one of the contestants, is not enough to give the Commonwealth Trial Court custody jurisdiction.
The Superior Court’s finding of domestic or family violence raises a rebuttable presumption that it is in the child’s best interest to live with the non-violent parent at the location of that parent’s choice, inside or outside the Commonwealth.
If the petitioner has improperly removed the child from the physical custody of the person entitled to custody without the consent of the person entitled to custody, or if the petitioner has improperly retained the child after a visit or other temporary relinquishment of physical custody, the court will not exercise its jurisdiction to modify a custody decree of another state unless it is necessary in the best interests of the child.
Visitation Rights
As a part of its considerations in a custody or visitation dispute involving a child in which a parent has been found to have engaged in domestic or familial violence, the Superior Court must take into account the following additional factors: N.M.I. § 1932
- The Superior Court shall consider as primary the safety and well-being
of the child or children and of the parent who is the victim of domestic or
family violence; and - The court shall consider the perpetrator’s history of causing physical harm, bodily injury, assault, or causing reasonable fear of physical harm, bodily injury, or assault to another person.
The absence or relocation of a parent does not count as a factor in deciding custody or visitation agreements.
Inconvenient Forum
Even before entering a decree, the Commonwealth Trial Court may decline to exercise its jurisdiction if it determines that it would be inconvenient to make a custody determination in the Commonwealth Trial Court because a court of another state would be a more appropriate forum under the circumstances of the case.
The court shall take into consideration whether it is in the child’s best interests for another state to assume jurisdiction. It may consider the following variables, however that is not a requirement: N.M.I. § 1608
- if another state is or recently was the child’s home state;
- if another state has a closer connection with the child and his family or with the child and one or more of the contestants;
- if substantial evidence concerning the child’s present or future care, protection, training, and personal relationships is more readily available in another state;
- if the parties have agreed on another forum which is no less appropriate; and
- if the exercise of jurisdiction by the Commonwealth Trial Court would contravene any of the purposes.
Upon the court’s own motion or upon the motion of a party, a guardian ad litem, or other representative of the child, a finding of inconvenient forum may be made.
Best Interests of the Child Factors (Juvenile Justice on Child Abuse)
Under the Commonwealth Code on juvenile justice, the determination of the best interests of the child shall focus on the following purposes: Commonwealth Code Tit. 6, § 5311
- Ensure that each abused child and the child’s family receive such care, preferably in their own home, as will serve the emotional, mental, and physical welfare of the minor and the best interests of the Commonwealth
- Require reporting of child abuse incidents so such children and their families may be identified and given any treatment and assistance deemed to be in the best interests of the child and the Commonwealth