A.Limit on excusals or challenges. No party shall excuse more than one judge. A party may not excuse a judge after the party has requested that judge to perform any discretionary act. Action by the court in connection with the issuance of an ex parte custody order, a detention hearing or the appointment of counsel shall not preclude the disqualification of a judge.B.Procedure for excusing a children's court judge on first assignment. A party may exercise the statutory right to excuse the judge before whom the proceeding is pending by filing with the clerk of the children's court a peremptory election. The peremptory election to excuse, other than one filed by the Children, Youth and Families Department (the Department) in an abuse or neglect case, must be signed by the party or an attorney representing a party within ten (10) days after the latter of(1) the first appearance of the party;(2) service of the petition on the party; or(3) mailing by the clerk of notice of assignment of the case to a judge. The Department in an abuse or neglect case shall file any peremptory election to excuse within two (2) days of the filing of the petition. C.Notice of reassignment; service of excusal. After the filing of the petition, if the case is reassigned to a different judge, the clerk shall give notice of reassignment to all parties. Any party who is not precluded from electing to excuse a judge shall serve notice of that election on all parties within ten (10) days of mailing by the clerk of the notice of reassignment.D.Misuse of peremptory excusal procedure. Peremptory excusals are not to be exercised to hinder, delay, or obstruct the administration of justice. If it appears that an attorney or group of attorneys may be using peremptory excusals for improper purposes or with such frequency as to impede the administration of justice, the Chief Judge of the district shall send a written notice to the Chief Justice of the Supreme Court and shall send a copy of the written notice to the attorney or group of attorneys believed to be improperly using peremptory excusals. The Chief Justice may take appropriate action to address any misuse, including issuance of an order providing that the attorney or attorneys or any party they represent may not file peremptory excusals for a specified period of time or until further order of the Chief Justice.E.Recusal. No children's court judge shall sit in any action in which the judge's impartiality may reasonably be questioned under the provisions of the Constitution of New Mexico or the Code of Judicial Conduct, and the judge shall file a recusal in any such action. Upon receipt of notification of recusal from a children's court judge, the clerk of the court shall give written notice to each party.F.Disability. If by reason of death, sickness, or other disability the judge before whom a jury trial has commenced is unable to proceed with the jury trial, any other judge regularly sitting in or assigned to the court, upon certifying familiarity with the record of the jury trial, may proceed with and finish the jury trial or, if appropriate, may grant a mistrial. In a nonjury trial, upon motion of a party, a mistrial shall be granted upon disability of the trial judge.N.M. R. Child. Ct. 10-162
As amended, effective 8/1/1989;7/1/1995; Rule 10-112 NMRA, recompiled and amended as Rule 10-162 NMRA by Supreme Court Order No. 08-8300-042, effective 1/15/2009; as amended by Supreme Court Order No. 11-8300-030, effective 9/9/2011; as amended by Supreme Court Order No. 15-8300-019, effective for all cases pending or filed on or after12/31/2015; as amended by Supreme Court Order No. 20-8300-020, effective for all cases pending or filed on or after 12/31/2020.Committee commentary. - Rule 10-162 NMRA is not meant to restrict disqualifications under Art. VI, Sec. 18, of the New Mexico Constitution, nor to restrict disqualifications under NMSA 1978, Section 32A-2-22(F). Section 32A-2 - 22(F) allows disqualification upon objection by the child in certain situations involving consent decrees.
[As amended by Supreme Court Order No. 08-8300-042, effective January 15, 2009; as amended for stylistic compliance by Supreme Court Order No. 20-8300-020, effective for all cases pending or filed on or after December 31, 2020.]
ANNOTATIONS The 2015 amendment, approved by Supreme Court Order No. 15-8300-019, effective December 31, 2015, provided procedures and penalties to address the misuse of peremptory excusals; added new Paragraph D and redesignated the succeeding paragraphs accordingly. The 2011 amendment, approved by Supreme Court Order No. 11-8300-030, effective September 9, 2011, in Paragraph A, provided that the issuance of an ex parte custody order does not preclude the disqualification of a judge; in Paragraph B, required the Children, Youth and Families Department to file peremptory elections within two days after filing a petition in abuse and neglect cases; and in Paragraph C, required parties who are not precluded from excusing a judge to serve notice of excusal within ten days after the clerk mails a notice of reassignment to a different judge. The 2008 amendment, approved by Supreme Court Order No. 08-8300-042, effective January 15, 2009, in Paragraph D, deleted the former rule which provided that a judge who is disabled may be succeeded by any judge who certifies familiarity with the record and who determines that the proceeding may be completed without prejudice to the parties and that the successor judge may recall any witness; and added the current rule. The 1995 amendment, effective July 1, 1995, rewrote this rule. Recompilations. - Pursuant to Supreme Court Order No. 08-8300-042, Rule 10-112 NMRA was recompiled as Rule 10-162 NMRA, effective January 15, 2009.
Cross references. - For comparable district court civil rule, see Rule 1-088.1 NMRA. For comparable district court criminal rule, see Rule 5-106 NMRA. State's representative authorized to execute affidavit of disqualification of judge. - The power and duty of the children's court attorney to represent the state necessarily includes the authority to execute an affidavit of disqualification of a judge when the disqualification is done on behalf of the state. Smith v. Martinez, 1981-NMSC-066, 96 N.M. 440, 631 P.2d 1308. Law reviews. - For survey, "Children's Court Practice in Delinquency and Need of Supervision Cases Under the New Rules," see 6 N.M.L. Rev. 331 (1976). Am. Jur. 2d, A.L.R. and C.J.S. references. - 47 Am. Jur. 2d Juvenile Courts § 8.