1. As used in the Children's Code:
2. A. "active efforts" means efforts that are affirmative, active, thorough and timely and that represent a higher standard of conduct than reasonable efforts;
3. B. "adult" means a person who is eighteen years of age or older;
4. C. "child" means a person who is less than eighteen years old;
5. D. "council" means the substitute care advisory council established pursuant to Section 32A-8-4 NMSA 1978;
6. E. "court", when used without further qualification, means the children's court division of the district court and includes the judge, special master or commissioner appointed pursuant to the provisions of the Children's Code or supreme court rule;
7. F. "court-appointed special advocate" means a person appointed pursuant to the provisions of the Children's Court Rules to assist the court in determining the best interests of the child by investigating the case and submitting a report to the court;
8. G. "custodian" means an adult with whom the child lives who is not a parent or guardian of the child;
9. H. "department" means the children, youth and families department, unless otherwise specified;
10. I. "disproportionate minority contact" means the involvement of a racial or ethnic group with the criminal or juvenile justice system at a proportion either higher or lower than that group's proportion in the general population;
11. J. "federal Indian Child Welfare Act of 1978" means the federal Indian Child Welfare Act of 1978, as that act may be amended or its sections renumbered;
12. K. "foster parent" means a person, including a relative of the child, licensed or certified by the department or a child placement agency to provide care for children in the custody of the department or agency;
13. L. "guardian" means a person appointed as a guardian by a court or Indian tribal authority;
14. M. "guardian ad litem" means an attorney appointed by the children's court to represent and protect the best interests of the child in a case; provided that no party or employee or representative of a party to the case shall be appointed to serve as a guardian ad litem;

15. N. "Indian" means, whether an adult or child, a person who is:

    1. (1) a member of an Indian tribe; or
    2. (2) eligible for membership in an Indian tribe;

16. O. "Indian child" means an Indian person, or a person whom there is reason to know is an Indian person, under eighteen years of age, who is neither:

    1. (1) married; or
    2. (2) emancipated;

17. P. "Indian child's tribe" means:

    1. (1) the Indian tribe in which an Indian child is a member or eligible for membership; or
    2. (2) in the case of an Indian child who is a member or eligible for membership in more than one tribe, the Indian tribe with which the Indian child has more significant contacts;

18. Q. "Indian custodian" means an Indian who, pursuant to tribal law or custom or pursuant to state law:

    1. (1) is an adult with legal custody of an Indian child; or
    2. (2) has been transferred temporary physical care, custody and control by the parent of the Indian child;
19. R. "Indian tribe" means an Indian nation, tribe, pueblo or other band, organized group or community of Indians recognized as eligible for the services provided to Indians by the secretary because of their status as Indians, including an Alaska native village as defined in 43 U.S.C. Section 1602(c) or a regional corporation as defined in 43 U.S.C. Section 1606. For the purposes of notification to and communication with a tribe as required in the Indian Family Protection Act [32A-28-1 to 32A-28-42 NMSA 1978], "Indian tribe" also includes those tribal officials and staff who are responsible for child welfare and social services matters;
20. S. "judge", when used without further qualification, means the judge of the court;
21. T. "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 to 32A-6A-30 NMSA 1978]; and the right to consent to the child's enlistment in the armed forces of the United States;
22. U. "member" or "membership" means a determination made by an Indian tribe that a person is a member of or eligible for membership in that Indian tribe;
23. V. "parent" or "parents" means a biological or adoptive parent if the biological or adoptive parent has a constitutionally protected liberty interest in the care and custody of the child or a person who has lawfully adopted an Indian child pursuant to state law or tribal law or tribal custom;

24. W. "permanency plan" means a determination by the court that the child's interest will be served best by:

    1. (1) reunification;
    2. (2) placement for adoption after the parents' rights have been relinquished or terminated or after a motion has been filed to terminate parental rights;
    3. (3) placement with a person who will be the child's permanent guardian;
    4. (4) placement in the legal custody of the department with the child placed in the home of a fit and willing relative; or
    5. (5) placement in the legal custody of the department under a planned permanent living arrangement;
25. X. "person" means an individual or any other form of entity recognized by law;
26. Y. "plan of safe care" means a written plan created by a health care professional intended to ensure the immediate and ongoing safety and well-being of a substance-exposed newborn or to provide perinatal support to a pregnant person with substance use disorder by addressing the treatment needs of the child and any of the child's parents, relatives, guardians, custodians or caretakers to the extent those treatment needs are relevant to the safety of the child;
27. Z. "preadoptive parent" means a person with whom a child has been placed for adoption;
28. AA. "protective supervision" means the right to visit the child in the home where the child is residing, inspect the home, transport the child to court-ordered diagnostic examinations and evaluations and obtain information and records concerning the child;

29. BB. "relative" means a person related to another person:

    1. (1) by blood within the fifth degree of consanguinity or through marriage by the fifth degree of affinity; or
    2. (2) with respect to an Indian child, as established or defined by the Indian child's tribe's custom or law;

30. CC. "reservation" means:

    1. (1) "Indian country" as defined in 18 U.S.C. Section 1151;
    2. (2) any lands to which the title is held by the United States in trust for the benefit of an Indian tribe or individual; or
    3. (3) any lands held by an Indian tribe or individual subject to a restriction by the United States against alienation;
31. DD. "reunification" means either a return of the child to the parent or to the home from which the child was removed or a return to the noncustodial parent;
32. EE. "secretary" means the United States secretary of the interior;
33. FF. "tribal court" means a court with jurisdiction over child custody proceedings that is either a court of Indian offenses, a court established and operated under the law or custom of an Indian tribe or any other administrative body that is vested by an Indian tribe with authority over child custody proceedings;
34. GG. "tribal court order" means a document issued by a tribal court that is signed by an appropriate authority, including a judge, governor or tribal council member, and that orders an action that is within the tribal court's jurisdiction; and
35. HH. "tribunal" means any judicial forum other than the court.

History: 1978 Comp., § 32A-1-4, enacted by Laws 1993, ch. 77, § 13; 1995, ch. 206, § 2; 1999, ch. 77, § 2; 2003, ch. 225, § 1; 2005, ch. 189, § 1; 2009, ch. 239, § 7; 2016, ch. 60, § 1; 2019, ch. 190, § 1; 2022, ch. 41, § 44; 2023, ch. 90, § 2; 2025, ch. 156, § 3.

ANNOTATIONS

Cross references. — For the Children's Court Rules, see 10-101 NMRA et seq.

For the federal Indian Child Welfare Act of 1978, see 25 U.S.C. § 1901.

The 2025 amendment, effective June 20, 2025, revised the definition of the term "plan of safe care" as used in the Children's Code; in Subsection Y, after "plan of" added "safe", added "written" preceding the second occurrence of "plan", added "immediate and ongoing" preceding "safety and well-being", after "newborn" added "or to provide perinatal support to a pregnant person with substance use disorder", after "guardians" deleted "family members" and added "custodians" and replaced "caregivers" with "caretakers".

The 2023 amendment, effective July 1, 2023, revised the definition of "guardian"; and in Subsection L, after "Indian tribal authority", deleted "or a person authorized to care for the child by a parental power of attorney as permitted by law".

The 2022 amendment, effective July 1, 2022, defined "active efforts", "federal Indian Child Welfare Act of 1978", "Indian", "Indian custodian", "member" or "membership", "reservation", and "secretary", and revised the definitions of "Indian child", "Indian tribe", "parent" or "parents", "relative", and "tribal court", as used in the Children's Code; added a new Subsection A and redesignated former Subsections A through H as Subsections B through I, respectively; added a new Subsection J and redesignated former Subsections I through K as Subsections K through M, respectively; added a new Subsection N and redesignated former Subsections L and M as Subsections O and P, respectively; in Subsection O, after "means an", deleted "unmarried person who is" and added "Indian person, or a person whom there is reason to know is an Indian person under eighteen years of age, who is neither", and added Paragraphs O(1) and O(2); added a new Subsection Q and redesignated former Subsections N through P as Subsections R through T, respectively; in Subsection R, after "means", deleted "federally recognized Indian tribe, community or group pursuant to 25 U.S.C. Section 1903(1)" and added "an Indian nation, tribe, pueblo or other band, organized group or community of Indians recognized as eligible for the services provided to Indians, including an Alaska native village as defined in 43 U.S.C. Section 1602(c) or a regional corporation as defined in 43 U.S.C. Section 1606. For the purposes of notification to and communication with a tribe as required in the Indian Family Protection Act, 'Indian tribe' also includes those tribal officials and staff who are responsible for child welfare and social services matters"; added a new Subsection U and redesignated former Subsections Q through W as Subsections V through BB, respectively; in Subsection V, after "custody of the child", added "or a person who has lawfully adopted an Indian child pursuant to state law or tribal law or tribal custom"; in Subsection BB, added Paragraph BB(2); added Subsection CC and redesignated former Subsection X as Subsection DD; added Subsection EE and redesignated former Subsections Y through AA as Subsections FF through HH, respectively; and in Subsection FF, deleted former Paragraphs (1) and (2) and added "a court with jurisdiction over child custody proceedings that is either a court of Indian offenses, a court established and operated under the law or custom of an Indian tribe or any other administrative body that is vested by an Indian tribe with authority over child custody proceedings".

The 2019 amendment, effective June 14, 2019, defined "plan of care" as used in the Children's Code; and added a new Subsection T and redesignated former Subsections T through Z as Subsections U through AA, respectively.

The 2016 amendment, effective July 1, 2016, defined "council" and "relative" as used in the Children’s Code; added new Subsection C and redesignated former Subsections C through T as Subsections D through U, respectively; in Subsection E, after "special advocate", deleted "or ‘CASA’", after "person appointed", deleted "as a CASA", and after "Court Rules", deleted "who assists" and added "to assist"; in Subsection K, after "the child in a", deleted "court proceeding" and added "case", and after "party to the", deleted "proceeding" and added "case"; and added a new Subsection V and redesignated the succeeding subsections accordingly.

The 2009 amendment, effective July 1, 2009, added Subsection G.

The 2005 amendment, effective June 17, 2005, defined "custodian" in Subsection E to mean an adult with whom a child lives who is not a parent or guardian of the child; defined "guardian" in Subsection H to mean a person appointed as a guardian by a court, Indian tribal authority or a person with parental power of attorney; deleted the definition of "guardianship" in former Subsection I; added the definition of "Indian tribe" in Subsection L; provided in Subsection N that "legal custody" includes a legal status created by operation of statute and includes the right and duty to provide personal care of a child; deleted from the former provisions in Subsection N that the rights and duties of legal custody were subject to the rights of the guardian of the child and that required a person granted legal custody to exercise the custodial rights personally; deleted the former provision in Subsection O that a parent retains the duties of guardianship and legal custody of a child; defined "permanency plan" in Subsection P to include a determination that a child's interest will be served best by a reunification or placement with a person who will be the child's permanent guardian; added the definition of "protective supervision" in Subsection S; and added the definition of "reunification" in Subsection T.

The 2003 amendment, effective July 1, 2003, substituted "a person" for "an individual" in Subsections A and B; deleted "and Forms" following "Children's Court Rules" in Subsection D; substituted "a person" for "any persons" following "residential facility or" in Subsection E; substituted "A person" for "An individual" preceding "granted legal custody" in Subsection N; substituted "with the child placed in the home of a fit and willing relative" for "until the child reaches the age of majority, unless the child is emancipated, pursuant to the Emancipation of Minors Act" in Paragraph P(4); deleted "that meets the department's definition of long-term foster care" at the end of Paragraph P(5).

The 1999 amendment, effective July 1, 1999, deleted "but is not necessarily limited in either number or kind to" at the end of Subsection I; in Subsection O, inserted the language beginning "if the biological" to the end of the first sentence and added the second sentence; and added Subsections P and R, and redesignated the subsequent subsections accordingly.

The 1995 amendment, effective July 1, 1995, in Subsection G, inserted "or certified" following "licensed"; in Subsection N, inserted "department" preceding "or agency" and the language beginning "the right to" and ending "Disabilities Act;"; in Subsection O, substituted "biological" for "natural"; added Subsections Q and R; and redesignated former Subsection Q as Subsection S.

Decisions under prior law. — In light of the similarity of the provisions, annotations decided under former Section 32-1-3 NMSA 1978 have been included in the annotations to this section.

Stepfather as "custodian". — A stepfather meets the definition of "custodian" for purposes of the court's subject matter jurisdiction over him in a proceeding on a petition alleging abuse or neglect of a child. State ex rel. Children, Youth & Families Dep't (In re Candice Y.), 2000-NMCA-035, 128 N.M. 813, 999 P.2d 1045, cert. denied, 129 N.M. 207, 4 P.3d 35.

Human services department [health care authority department] not "person". — State health and social services (now human services) department was not a "person" within the meaning of the Children's Code. Thus, the department need not be made a party to nor was its presence required in any action filed pursuant to the Children's Code where it may be ordered to assume certain responsibilities pursuant to the Children's Code. In re Doe, 1975-NMCA-152, 88 N.M. 632, 545 P.2d 491.

Ex parte conduct rule inapplicable to guardians ad litem. — Rule 16-402 NMRA of the Rules of Professional Conduct does not prohibit guardians ad litem from communicating ex parte with department of children, youth and families social workers; although attorneys, guardians ad litem do not have typical attorney-client relationships with children, and are therefore not bound by that rule. State ex rel. Children, Youth & Families Dep't v. George F., 1998-NMCA-119, 125 N.M. 597, 964 P.2d 158, cert. denied, 125 N.M. 654, 964 P.2d 818.

Legal custody provides the right to determine placement of children. — Absent an abuse of its discretion, when the children, youth and families department (department) has legal custody of a child, the department alone is permitted to determine where and with whom the child will be placed. State ex rel. Children, Youth & Families Dep’t v. Jerry K., 2015-NMCA-047, cert. denied, 2015-NMCERT-004.

Where father pleaded no contest to the allegation that his children were neglected as a result of father’s inability to discharge his responsibilities to and for them because of incarceration, and where the district court ordered the children into the legal custody of the children, youth and families department (department), the department had the sole discretionary authority, absent an abuse of discretion, to decide with whom the children would be placed, despite father’s own preferences for placement of the children. State ex rel. Children, Youth & Families Dep’t v. Jerry K., 2015-NMCA-047, cert. denied, 2015-NMCERT-004.

"Legal custody" continues until terminated by appropriate authority. — A parent has a legal right to the custody of his child unless that right had been terminated, however temporarily, by appropriate authority. State v. Sanders, 1981-NMCA-053, 96 N.M. 138, 628 P.2d 1134.

A parent's legal right to custody of a child does not end until entry of, and the giving of notice of, a judgment in compliance with Rule 62(a), N.M.R. Child. Ct. (now 10-352 NMRA), requiring a signed written judgment and disposition. State v. Sanders, 1981-NMCA-053, 96 N.M. 138, 628 P.2d 1134.

Age references are to years of age, not mental age. — The numerous references to age in the Children's Code are references to years of age, not mental age. State v. Doe, 1982-NMCA-028, 97 N.M. 598, 642 P.2d 201, cert denied, 98 N.M. 50, 644 P.2d 1039.

Law reviews. — For comment, "Navajo Grandparents - ‘Parent’ or ‘Stranger’ - A Child Custody Determination," see 9 N.M.L. Rev. 187 (1978-79).

For article, "The New Mexico Children's Code: Some Remaining Problems," see 10 N.M.L. Rev. 341 (1980).

For article, "Child Welfare Under the Indian Child Welfare Act of 1978: A New Mexico Focus," see 10 N.M.L. Rev. 413 (1980).