N.M. R. Child. Ct. 10-311

As amended through November 1, 2024

Rule 10-311 - Ex parte custody orders

A.Issuance. If the department wishes to seek or retain custody at the time the petition is filed, or seek removal of a child from the home during a period of protective supervision in a pending abuse/neglect case, the department shall file a motion for an ex parte custody order with a sworn written statement of facts showing probable cause to believe (1) that the child has been abused or neglected and (2) that custody under the criteria set forth in Section 32A-4-18 NMSA 1978 is necessary. The motion and affidavit for the ex parte custody order shall be substantially in the form approved by the Supreme Court.

B.Service. If the department has received custody from law enforcement, the order may be served with the petition. If the child is not yet in the custody of the department, the order shall be served on the respondent by a person authorized to serve arrest warrants.

Adopted April 1, 1976, Children's Court Rule 40 NMSA 1953; recompiled and amended as Children's Court Rule 52 NMSA 1978 effective 11/1/1978; Rule 10-301 SCRA 1986, as amended effective 2/1/1982;8/1/1999; Rule 10-301 NMRA, recompiled and amended as Rule 10-311 NMRA by Supreme Court Order No. 08-8300-042, effective 1/15/2009.

ANNOTATIONS The 2008 amendment, approved by Supreme Court Order No. 08-8300-042, effective January 15, 2009, in Paragraph A, in the first sentence, deleted "Within two (2) days after a child is taken into custody" and added the current prefatory language, added the Subparagraph (1) designation, and added Subparagraph (2); and in Paragraph B, deleted the former rule which provided that the order shall be served with the petition and added the current rule. The 1999 amendment, effective August 1, 1999, rewrote Paragraph A, which formerly read "At the time a petition is filed or any time thereafter, the children's court or district court may issue an ex parte custody order upon a sworn written statement of facts showing probable cause exists to believe that the child is abused or neglected and that custody under the criteria set forth in Rule 10-303 of these rules is necessary"; in Paragraph B, substituted "with the petition" for "on the respondent by a person authorized to serve arrest warrants and shall direct the officer to take custody of the child and deliver him to a place designated by the court"; and deleted former Paragraph C relating to evidence and former Paragraph D relating to referees. Recompilations. - Pursuant to Supreme Court Order No. 08-8300-042, Rule 10-301 NMRA was recompiled as Rule 10-311 NMRA, effective January 15, 2009.

Cross references. - For taking of child into custody, see Section 32A-2-9 NMSA 1978. For definition of "neglected child", see Section 32A-4-2 NMSA 1978. For ex parte custody orders, see Section 32A-4-16 NMSA 1978 . For whom arrest warrants may be directed, see Rule 5-210 NMRA. For exclusion from Rules of Evidence, see Rule 11-1101 NMRA. Law reviews. - For note, "Children's Code - Neglect - State ex rel. Health & Social Services Department v. Natural Father," see 12 N.M.L. Rev. 505 (1982). Am. Jur. 2d, A.L.R. and C.J.S. references. - 42 Am. Jur. 2d Infants §§16, 17; 47 Am. Jur. 2d Juvenile Courts §45 et seq. Sexual abuse of child by parent as ground for termination of parent's right to child, 58 A.L.R.3d 1074. 43 C.J.S. Infants § 5 et seq.; 67A C.J.S. Parent and Child §§31 to 46.