N.M. R. Child. Ct. 10-322

As amended through November 1, 2024

Rule 10-322 - Defenses and objections; when and how presented; by pleading or motion

A.When presented. A respondent in a proceeding may serve a response within twenty (20) days after the service of the summons and petition. Unless a different time is fixed by the court, after service of a motion under Paragraph B of this rule, any responsive pleading shall be filed within ten (10) days after the denial of the motion. Although a response to a petition is not required, the effect of failure to respond is a general denial, and any defense in law or in fact which is not affirmatively pled by a respondent may be deemed waived, provided that the court shall allow such a defense for good cause shown.

B.How presented. Every defense, in law or fact, to a claim for relief in any pleading shall be asserted in the responsive pleading, except that the following defenses may, at the option of the respondent, be made by motion:

(1) lack of jurisdiction over the subject matter;

(2) lack of jurisdiction over the person;

(3) improper venue;

(4) insufficiency of process;

(5) insufficiency of service of process;

(6) failure to state a claim upon which relief can be granted;

(7) failure to join a necessary party. A motion making any of these defenses shall be made before pleading if a further pleading is permitted. No defense or objection is waived by being joined with one or more other defenses or objections in a responsive pleading or motion.

N.M. R. Child. Ct. 10-322

Adopted by Supreme Court Order No. 08-8300-042, effective 1/15/2009; as amended by Supreme Court Order No. 16-8300-017, effective for all cases pending or filed on or after12/31/2016.

Committee commentary. - The committee has amended the rule to conform to practice. Answers are not generally filed unless an affirmative defense is being raised, and defaults are not taken. The time for filing a response has been changed from thirty (30) to twenty (20) days to avoid unnecessary delays.

[Adopted by Supreme Court Order No. 08-8300-042, effective January 15, 2009.]

ANNOTATIONS The 2016 amendment, approved by Supreme Court Order No. 16-8300-017, effective December 31, 2016, provided the children's court judge the discretion to allow defenses not affirmatively pled in a response to a petition; in Paragraph A, after "not affirmatively pled by a respondent", deleted "shall" and added "may", and after "deemed waived", deleted "and shall not be allowed unless the court, for good cause shown, allows the same" and added "provided that the court shall allow such a defense for good cause shown". Allegations sufficient to state a cause of action. - Where the factual allegations in a petition for child neglect only identified the actions of the mother and the stepfather of the children; the petition did not contain specific allegations of neglect on the part of the father; and the petition described the mother's and stepfather's drug abuse, the unsatisfactory conditions of the home in which the children were living with the mother and stepfather, the subsequent voluntary placement of the children with fictive kin, the mother's and stepfather's failure to participate in a court-ordered treatment plan, the mother's arrest for domestic violence, the family's eviction, and the mother's announcement that she intended to take the children from the fictive kin, the allegations stated a cause of action against the father for neglect because the petition alleged that the children's basic needs had not been met and that the children were lacking adequate supervision and care and a safe and stable home environment which the father had a continuing legal duty to provide. State ex rel. CYFD v. Cosme V., 2009-NMCA-094, 146 N.M. 809, 215 P.3d 747.