Turley v. Whetten
35,846
| N.M. Ct. App. | Apr 20, 2017Background
- Parents (Mother and Father, Tyrone Whetten) have two children: J.W. (b. Oct 2013) and E.T. (b. Jun 2015). Mother (and her parents) initiated a custody petition while Mother was pregnant with E.T.
- District court awarded joint legal custody; Mother given primary physical custody of E.T.; Father given primary physical custody of J.W.; Court ordered specific exchange and communication protocols.
- Mother had a prior criminal matter and was participating in counseling; the court took judicial notice of that case and considered ongoing treatment.
- Guardian ad Litem (GAL) recommended Father have primary physical custody of both children, but the district court declined to adopt that recommendation in full.
- Court found no credible evidence either parent was unable or unwilling to parent; both parents receive substantial family support; court limited communications to written form and exchanges at a supervised facility (KISS).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Standard of review for custody | Turley: district court applied statutes correctly (implicit plaintiff position supporting judgment) | Whetten: court erred, abuse of discretion and findings unsupported | Court: appellate review only for abuse of discretion; findings supported by substantial evidence — no abuse |
| Consideration of statutory custody factors (§40-4-9, §40-4-9.1(B)) | Turley: court considered and applied factors | Whetten: court failed to properly consider statutory factors | Court: record and findings show due consideration and application of factors |
| Weight of GAL recommendation | Turley: GAL recommendation is advisory | Whetten: GAL recommended Father primary custody of both children, district court should have followed | Court: district court not bound by GAL; free to reject recommendation |
| Protection re domestic violence and family safety; sibling contact | Turley: Court’s orders protect parties and preserve sibling contact | Whetten: Separating E.T. from sibling/half-siblings is improper | Court: ordered protections (written communications, counseling, supervised exchanges) and ensured frequent sibling contact; not a permanent separation |
Key Cases Cited
- Grant v. Cumiford, 112 P.3d 1142 (N.M. Ct. App. 2005) (abuse-of-discretion standard for custody review)
- Crutchfield v. N.M. Dep’t of Taxation & Revenue, 106 P.3d 1273 (N.M. Ct. App. 2005) (liberal construction of trial court findings to support judgment)
- Kimbrell v. Kimbrell, 331 P.3d 915 (N.M. 2014) (district court not bound by GAL recommendations)