Divorced father regained custody of sons, after mother’s tragic death

Divorced Father Custody Options

Under New Mexico law, in a child custody dispute between a parent and a third party, there is a presumption that the welfare and best interests of the child will be served if the child is in the custody of the parent. This presumption can only be overcome by “extraordinary circumstances.”


The recent case of Stanley J. v. Cliff L. provides an example where a lower court found that such circumstances existed, only to be later reversed by the New Mexico Court of Appeals.

A mother’s tragic death

The father and mother were divorced in 2002 and both were found to be fit parents. The mother received primary physical custody of the two boys, with the father granted visitation. The mother and children moved to Broadview, New Mexico and lived there for the next 11 years, while the father was in Texas.

After a six-year battle with cancer, the mother passed away. During her illness, the children had stayed with the mother’s friends, often for the length of the mother’s seven- to 10-day treatments. The friends had no biological relationship to the children.

After the mother’s death, the friends sought appointment as kinship guardians under New Mexico law. The boys, now both teenagers, had been living with the friends for some time and wished to remain enrolled in their current school, surrounded by friends and family.

The district court ruled that the children’s wishes to not be removed during the emotional time following their mother’s death qualified as extraordinary circumstances under the law and appointed the mother’s friends as guardians. The father appealed, demanding that custody of the children be returned to him.

The father’s choice to move the children

The New Mexico Court of Appeals reversed the decision, finding that the circumstances did not qualify as extraordinary under the law. The children had suffered the tragic loss of their mother to cancer, and they had “nominated” the mother’s friends to be their guardians. In addition, they wanted to complete school in the area.

However, it was undisputed that the father was a fit parent and he desired custody of the children. The father’s choice to move the children out of their present community and out of state would be a life-changing experience for the children, but there was no evidence that such a move would result in serious psychological or other serious harm to the children. Whether to move the children would be a difficult decision, but it was a parenting decision for the father, not for the court.

The lower court’s order appointing the mother’s friends as guardians was reversed, and custody was returned to the father.

Seeking a positive resolution

Child custody issues, both during and after a divorce, can prove to be extremely difficult and acrimonious. If you are considering a divorce or a modification in child custody after a divorce, you should consult with an experienced family law attorney who will approach your case with integrity and civility, seeking a positive resolution for all parties involved.

Contact PJ Hartman through our website. Or call us at 505-247-3335.