COVID-19 & Legal News: The Courts & Visitation in New Mexico


We've now been dealing with COVID-19 for 13 months. As we've seen, certain segments of society have returned to near pre-pandemic normalcy, while other segments remain tediously slow and ill-equipped to handle post-pandemic issues. This blog deals with the New Mexico courts and visitation 13 months after the inception of Covid-19.

Our child visitation and custody attorneys can help you protect your parental rights and pursue an ideal arrangement for your child. To schedule a consultation with our team, contact us online or via phone at (505) 544-5126.

What's the State of Hearings?

Motions, trials, and other family court matters are being heard, albeit at a much slower rate than pre-Covid matters.

In Bernalillo County, the judges are terribly far behind in getting matters set. Motions that used to be set within two weeks of filing to be heard within two months of being noticed are set at least six months after the initial filing. Motions that we filed and submitted to the court in January and just being noticed for hearing. Those hearings are generally set for one-half hour summary hearings in April, and matters that cannot be resolved in summary hour are being set for May, June, and July, six months after the initial filing.

Motions filed in Sandoval County are even worse, with motions not being heard for up to 10 months after the motion is filed. However, motions filed in almost any other county are being set pretty quickly.

How About Orders?

Orders and divorce decrees are getting signed fairly quickly, usually within one week of submission. I don't know if the same can be said for pro se matters. Usually, those are dealt with more slowly than matters submitted by attorneys.

As a pro se litigant, I would not expect to get into court within six months of filing any motion. Calling the matter an emergency or expedited does not make any difference. Calls to the court do not help either. Get the issue before a mediator or facilitator if you want quick action.

In Bernalillo and Sandoval Counties, almost all of my hearings are conducted telephonically. Telephonic hearings make it very difficult to ascertain truth, emotions, lies, etc., but it's better than no hearing at all, especially for those individuals being denied funds from joint accounts or visitation with their children.

Telephonic hearings are in many respects preferable over hearings conducted by Google Meets, only because there is always one party who does not know how to utilize the app. While the judges and hearings officers have become fairly adept at using Google Meets, the attorneys and parties, alas, have not. Exhibits are due within 48 hours of any hearing, and the judges have gotten pretty strict about the shorter deadlines.

Although supreme court rules allow for in-person hearings that necessitate such, I have not had an in-person hearing in Bernalillo or Sandoval County in over a year and have none scheduled until July. We will see if those actually occur. Hearings in outlying counties are generally being conducted by Google Meets. The attorneys in these counties have become fairly adept at using the app, so ensure you know how to log in, use the app, and present evidence before the hearing. Many hearings are being won simply by the attorney more at ease with Google Meets. Some smaller counties are conducting full-day trials in person.

What Should Parents Know About Visitation Orders at this Stage?

The judges are upholding court orders for in-state visitation. Parents who have been cautious or overly cautious by keeping their children at home and away from all contact with others are being forced to return to their regular timesharing schedules. This is great for all parents who have not been able to enjoy regular timesharing for 13 months, but it can be rough on the kids who are being thrown back into both in-person schooling and in-person visitation at the same time.

You might consider easing into some visitation while not permanently making visitation changes. Parties are exchanging children without difficulty as the exchange facilities for supervised exchanges are back open. The new issues now generally involve whether parents should be taking children to grocery stores, restaurants, or other areas, especially play areas during visitation.

The rule of thumb and that followed by the judges is simply to follow the CDC and state guidelines. Wear a mask and socially distance yourself from others. Allowing your child to catch covid is dangerous to you, those around you, and your custody case. While the judges are not generally suspending visitation for covid violations, I suspect that's only because months have passed between the violation and the hearing. Don't mess around.

Visitation within the state does seem to have returned to normal as well unless the visitation involves the pueblos, which are not fully open. For visitation on a pueblo, seek the individual pueblo for more information. Visitation outside the state is more problematic. The various judges and jurisdictions are simply not consistent. I have two cases with fathers that were denied visitation by the mothers for an entire year. Although we finally got into court to address the missed visitation, the visits are generally being made up in the mother's state rather than in the fathers' home states.

However, both of these cases involved the children flying. In cases where the parents could drive the children in and out of the state, visitation is still being enforced. All visitation where children would fly alone has been changed to in-state visitation only. This is particularly problematic where children should be spending an entire summer with the non-custodial parent, who may only see that child once or twice per year. I think the judges are being cautious about flying children across the country right now and will continue to be cautious for the next year.

What Should I Know About Out of State Vacations?

There have also been questions about parents wanting to take children out of state on vacation. Last summer and over the Christmas break holiday, I saw the judges canceling most out of state vacations. I think most will be allowed this year, if you already have a court order allowing you to take your child out of state.

If you do not yet have this privilege and are asking the court to grant it for the first time, I can see that request being denied. However, I do not see parents being sanctioned for taking their children out of the state, as long as the court order allows it and the parties follow CDC guidelines.

Last But Not Least - COVID-19 Vaccinations

Vaccinations are such a hot-button issue. While the courts definitely tend to side with doctors and order vaccination of a child in regular cases, I am not sure that will be the case with Covid. Because the vaccine has not yet been approved for children, I am not yet seeing these cases brought to court, but they are certain to be coming.

I have several cases where the parties disagree over a regular vaccination regimen. Once the vaccine has been approved for children, I ultimately expect the court to side with the parent wanting the vaccine in cases where the parties cannot agree. A judge will not order vaccinations if both parties do not wish the child to be vaccinated.

At Sandia Family Law, our attorneys will help you find the best path forward in your child visitation case. Contact us online or via phone at (505) 544-5126 to learn more.

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