New Mexico Paternity Law


Paternity – General – New Mexico

Note:  This summary is not intended to be an all inclusive discussion of the law applicable to an action to establish Paternity in the State of New Mexico, but does include basic and other provisions.

Statutes:

New Mexico Statues
Chapter 40 Domestic Affairs
Article 11 Uniform Parentage Act

40-11-1. Short title. (1986)
This act [40-11-1 to 40-11-23 NMSA 1978] may be cited as the “Uniform Parentage Act”.

40-11-2. Definition. (1986)
As used in the Uniform Parentage Act [40-11-1 to 40-11-23 NMSA 1978], “parent and child relationship” means the legal relationship existing between a child and his natural or adoptive parents incident to which the law confers or imposes rights, privileges, duties and obligations. It includes the mother and child relationship and the father and child relationship.

40-11-3. Relationship not dependent on marriage. (1986)
The parent and child relationship extends equally to every child and to every parent, regardless of the marital status of the parents.

40-11-4. How parent and child relationship established. (1986)
The parent and child relationship between a child and:

A.  the natural mother may be established by proof of her having given birth to the child, or as provided by Section 21 [40-11-21 NMSA 1978] of the Uniform Parentage Act;

B.  the natural father may be established as provided in the Uniform Parentage Act [40-11-1 to 40-11-23 NMSA 1978]; and

C.  an adoptive parent may be established as provided by the Adoption Act [Chapter 32A, Article 5 NMSA 1978].

40-11-5. Presumption of paternity. (1997)

A.  A man is presumed to be the natural father of a child if:

(1) he and the child’s natural mother are or have been married to each other and the child is born during the marriage or within three hundred days after the marriage is terminated by death, annulment, declaration of invalidity or dissolution of marriage or after a decree of separation is entered by a court;

(2) before the child’s birth, he and the child’s natural mother have attempted to marry each other by a marriage solemnized in apparent compliance with law, although the attempted marriage is or could be declared invalid, and:

(a) if the attempted marriage could be declared invalid only by a court, the child is born during the attempted marriage or within three hundred days after its termination by death, annulment, declaration of invalidity or divorce; or

(b) if the attempted marriage is invalid without a court order, the child is born within three hundred days after the termination of cohabitation;

(3) after the child’s birth, he and the child’s natural mother have married or attempted to marry each other by a marriage solemnized in apparent compliance with law, although the attempted marriage is or could be declared invalid, and:

(a) he has acknowledged his paternity of the child in writing filed with the vital statistics bureau of the public health division of the department of health;

(b) with his consent, he is named as the child’s father on the child’s birth certificate; or

(c) he is obligated to support the child under a written voluntary promise or by court order;

(4) while the child is under the age of majority, he openly holds out the child as his natural child and has established a personal, financial or custodial relationship with the child; or

(5) he acknowledges his paternity of the child pursuant to Section 24-14-13 NMSA 1978 or in writing filed with the vital statistics bureau of the public health division of the department of health, which shall promptly inform the mother of the filing of the acknowledgment, and, within a reasonable time after being informed of the filing, she does not dispute the acknowledgment. In order to enforce the rights of custody or visitation, a man presumed to be the father as a result of filing a written acknowledgment shall seek an appropriate judicial order in an action filed for that purpose. A signed voluntary acknowledgment of paternity is considered a legal finding of paternity, subject to the right of any signatory to rescind the acknowledgment within the earlier of:

(a) sixty days from the date of signing; or

(b) the date of an administrative or judicial proceeding relating to the child, including a proceeding to establish a support order, to which the signatory is a party.

After sixty days from the date of signing, the acknowledgment may be challenged in court only on the grounds of fraud, duress or material mistake of fact, with the burden of proof upon the challenger, although legal responsibilities arising from signing the acknowledgment may not be suspended during the challenge, except upon a showing of good cause.

Judicial or administrative proceedings are not required to ratify an unchallenged acknowledgment.

B.  If two or more men are presumed under this section to be the child’s father, an acknowledgment by one of them may be effective only with the written consent of the other or pursuant to Subsection C of this section.

C.  A presumption under this section may be rebutted in an appropriate action only by clear and convincing evidence. If two or more men are presumed under this section to be the father of the same child, paternity shall be established as provided in the Uniform Parentage Act [40-11-1 to 40-11-23 NMSA 1978]. If the presumption has been rebutted with respect to one man, paternity of the child by another man may be determined in the same action if he has been made a party.

D.  A man is presumed to be the natural father of a child if, pursuant to blood or genetic tests properly performed by a qualified person and evaluated by an expert, including deoxyribonucleic acid (DNA) probe technique tests under the Uniform Parentage Act, the probability of his being the father is ninety-nine percent or higher.

E.  The voluntary acknowledgment of paternity must be recognized as a basis for seeking a support order without requiring any further proceedings to establish paternity.

F.  Full faith and credit must be given to determination of paternity made by other states, including acknowledgments of paternity.

40-11-6. Artificial insemination. (1986)

A.  If, under the supervision of a licensed physician and with the consent of her husband, a woman is inseminated artificially with semen donated by a man not her husband, the husband is treated as if he were the natural father of the child thereby conceived so long as the husband’s consent is in writing, signed by him and his wife. The physician shall certify their signatures and the date of the insemination and file the husband’s consent with the vital statistics bureau of the health services division of the health and environment department [department of health], where it shall be kept confidential and in a sealed file; provided, however, that the physician’s failure to either certify or file the consent shall not affect the father and child relationship.

B.  Any donor of semen provided to a licensed physician for use in artificial insemination of a woman other than the donor’s wife may be treated as if he were the natural father of the child thereby conceived if he so consents in writing signed by him and the woman. The physician shall certify their signatures and the date of the insemination and file the donor’s consent with the vital statistics bureau of the health services division of the health and environment department [department of health] where it shall be kept confidential and in a sealed file; provided, however, that the physician’s failure to either certify or file the consent shall not affect the father and child relationship.

C.  All papers and records pertaining to the insemination, whether part of a court, medical or any other file, are subject to inspection only upon an order of the court for good cause shown.

40-11-7. Determination of father and child relationship; who may bring action; when action may be brought. (1986)

A.  Any interested party may bring an action for the purpose of determining the existence or nonexistence of the parent and child relationship.

B.  If an action under this section is brought before the birth of the child, all proceedings shall be stayed until after the birth, except service of process and the taking of depositions to perpetuate testimony.

40-11-8. Jurisdiction; venue. (1986)

A.  The district court has jurisdiction over an action brought under the Uniform Parentage Act [40-11-1 to 40-11-23 NMSA 1978]. The action may also be joined with an action for dissolution of marriage, annulment, separate maintenance or support.

B.  A person who has sexual intercourse in this state thereby submits to the jurisdiction of the courts of this state as to an action brought under the Uniform Parentage Act with respect to a child who may have been conceived by that act of intercourse. In addition to any other method provided by rule or statute, personal jurisdiction may be acquired over such person by delivery of summons outside this state by personal service or by registered mail with proof of actual receipt.

C.  The action may be brought in the county in which any party resides or is found or, if the father is deceased, in which proceedings for probate of his estate have been or could be commenced.

40-11-9. Parties. (1986)
The child may be made a party to the action.  If the child is a party and a minor, he shall be represented by his general guardian or a guardian ad litem appointed by the court, or both.  The custodian may act as guardian under this section. The court may align the parties.

40-11-10. Pre-trial proceedings. (1986)
As soon as practicable after an action to declare the existence or nonexistence of the father and child relationship has been brought, and unless judgment by default has been entered, an informal hearing shall be held. The court may order that the hearing be held before a master. The public shall be barred from the hearing. A record of the proceeding or any portion of the proceeding shall be kept if any party requests or the court so orders. The rules of evidence shall not apply.

40-11-11. Pre-trial recommendations. (1993)

A.  On the basis of the information produced at the pretrial hearing, the judge, hearing officer or master conducting the hearing shall evaluate the probability of determining the existence or nonexistence of the father and child relationship in a trial.  On the basis of the evaluation, an appropriate recommendation for settlement shall be made to the parties. Based upon the evaluation, the judge, hearing officer or master may enter an order for temporary support consistent with the child support guidelines as provided in Section 40-4-11.1 NMSA 1978.

B.  If the parties accept a recommendation made in accordance with Subsection A of this section, judgment shall be entered accordingly.

C.  If a party refuses to accept a recommendation made in accordance with Subsection A of this section and blood tests have not been taken, the court shall require the parties to submit to blood tests, if practicable. Thereafter, the judge or master shall make an appropriate final recommendation. If a party refuses to accept the final recommendation, the action shall be set for trial and a party’s acceptance or rejection of the recommendation shall be treated as any other offer of settlement with respect to its admissibility as evidence in subsequent proceedings.

D.  The child’s guardian may accept or refuse to accept a recommendation under this section.

E.  The informal hearing may be terminated and the action set for trial if the judge or master conducting the hearing finds it unlikely that all parties would accept a recommendation he might make under Subsection A or C of this section.

40-11-12. Blood and genetic tests. (1997)

A.  The court may, and upon request of a party shall, require the child, mother or alleged father to submit to blood or genetic tests, including deoxyribonucleic acid (DNA) probe technique tests.

B.  The court, upon reasonable request by a party, shall order that independent tests be performed by other experts qualified as examiners of blood types or qualified as experts in the administration of genetic tests, including deoxyribonucleic acid (DNA) probe technique tests.

C.  In all cases, the court shall determine the number and qualifications of the experts. This accreditation of the testing facility must be admissible without the need for foundation testimony or other proof of authenticity or accuracy unless an objection has been made in writing not later than twenty days before a hearing on the testing results. The court shall admit into evidence, for purposes of establishing paternity, the results of any genetic test that is of a type generally acknowledged as reliable by accreditation bodies designated by the secretary of human services and performed by a laboratory approved by such an accreditation body unless an objection has been made in writing not later than twenty days before a hearing, at which the results may be introduced into evidence.

D.  If a putative father refuses to comply with an order for testing pursuant to this section, the court shall enter a judgment of parentage against him.

E.  If the mother refuses to comply with an order for testing pursuant to this section, the court may dismiss the case without prejudice.

40-11-13. Evidence relating to paternity. (1989)
Evidence relating to paternity may include:

A.  evidence of sexual intercourse between the mother and alleged father at any possible time of conception;

B. an expert’s opinion concerning the statistical probability of the alleged father’s paternity based upon the duration of the mother’s pregnancy;

C.  blood test or genetic test results, including deoxyribonucleic acid (DNA) probe technique test results, if available, of the statistical probability of the alleged father’s paternity, based on a test performed by a qualified individual and evaluated by an expert; and

D.  all other evidence relevant to the issue of paternity of the child.

40-11-14. Civil action. (1997)

A.  An action under the Uniform Parentage Act [40-11-1 to 40-11-23 NMSA 1978] is a civil action governed by the rules of civil procedure. Jury trial is not available in actions to establish parentage. The mother of the child and the alleged father are competent to testify and may be compelled to testify.

B.  Testimony relating to sexual access to the mother by an unidentified man at any time or by an identified man at a time other than the probable time of conception is inadmissible in evidence, unless offered by the mother.

C.  In an action against an alleged father, evidence offered by him with respect to a man who is not subject to the jurisdiction of the court concerning his sexual intercourse with the mother at or about the probable time of conception of the child is admissible in evidence only if the alleged father has undergone and made available to the court blood tests, the results of which do not exclude the possibility of his paternity of the child.

D.  A default order must be entered upon a showing of service of process on the defendant or any other showing required by state law.

40-11-15. Judgment or order. (2005)

A.  The judgment or order of the court determining the existence or nonexistence of the parent and child relationship is determinative for all purposes.

B.  If the judgment or order of the court is at variance with the child’s birth certificate, the court shall order that a new birth certificate be issued.

C.  The judgment or order may contain any other provision directed against or on behalf of the appropriate party to the proceeding concerning the duty of past and future support, the custody and guardianship of the child, visitation with the child, the furnishing of bond or other security for the payment of the judgment or any other matter within the jurisdiction of the court. The judgment or order may direct the father to pay the reasonable expenses of the mother’s pregnancy, birth and confinement. The court shall order child support retroactive to the date of the child’s birth, but not to exceed twelve years unless there is a substantial showing that paternity could not have been established and an action for child support could not have been brought within twelve years of the child’s birth pursuant to the provisions of Sections 40-4-11 through 40-4-11.3 NMSA 1978; provided that, in deciding whether or how long to order retroactive support, the court shall consider:

(1) whether the alleged or presumed father has absconded or could not be located; and

(2) whether equitable defenses are applicable.

D.  A determination of parentage and adjudication of support is binding on:

(1) a signatory on an acknowledgment of paternity;

(2) a nonresident party subject to the court’s jurisdiction pursuant to Section 40-6A-201 NMSA 1978; and

(3) the child, if:

(a) the determination was based on an acknowledgment of paternity and the acknowledgment is consistent with the results of genetic testing;

(b) the child was a party or was represented in the proceeding by a guardian ad litem;

(c) there is a stipulation or admission in the final order that the parties are the parents of the child; or

(d) in a proceeding to dissolve a marriage or establish support, a final order expressly identified the child as a “child of the marriage”, “issue of the marriage”, “child of the parties” or similar words that indicate the parties are the parents of the child and, if applicable, the court had personal jurisdiction over any nonresident party pursuant to Section 40-6A-201 NMSA 1978.

E.  Support judgments or orders ordinarily shall be for periodic payments which may vary in amount. In the best interest of the child, a lump-sum payment or the purchase of an annuity may be ordered in lieu of periodic payments of support; provided, however, nothing in this section shall deprive a state agency of its right to reimbursement from an appropriate party should the child be a past or future recipient of public assistance.

F.  In determining the amount to be paid by a parent for support of the child, a court, child support hearing officer or master shall make such determination in accordance with the provisions of the child support guidelines of Section 40-4-11.1 NMSA 1978.

G.  Bills for pregnancy, childbirth and genetic testing are admissible as evidence without requiring third-party foundation testimony and constitute prima facie evidence of amounts incurred.

40-11-16. Costs. (2004)
The court may order reasonable fees of counsel, experts and the child’s guardian and other costs of the action and pretrial proceedings, including blood or genetic tests, to be paid by any party in proportions and at times determined by the court, but not to exceed twelve years unless there is a substantial showing that paternity could not have been established and an action for child support could not have been brought within twelve years of the child’s birth. The court may order the proportion of any indigent party to be paid from court funds.

40-11-17. Enforcement of judgment or order. (1986)

A.  If existence of the father and child relationship is declared, or paternity or a duty of support has been acknowledged or adjudicated under the Uniform Parentage Act [40-11-1 to 40-11-23 NMSA 1978] or under prior law, the obligation of the father may be enforced in the same or other proceedings by any interested party.

B.  The court may order support payments to be made to the mother; the clerk of the court; or a person, corporation or agency designated to collect or administer such funds for the benefit of the child, upon such terms as the court deems appropriate.

C.  Willful failure to obey the judgment or order of the court is a civil contempt of the court. All remedies for the enforcement of judgments apply.

40-11-18. Modification of judgment or order. (1986)
The court has continuing jurisdiction to modify or revoke a judgment or order for future support.

40-11-19. Right to counsel; free transcript on appeal. (1986)

A.  At the pre-trial hearing and in further proceedings, any party may be represented by counsel. The court shall appoint counsel for any party who is unable to obtain counsel for financial reasons if, in the court’s discretion, appointment of counsel is required in the interest of justice.

B.  If a party is financially unable to pay the cost of a transcript, the court shall furnish on request a transcript for purposes of appeal.

40-11-20. Hearings and records; confidentiality. (1986)
Notwithstanding any other law concerning public hearings and records, any hearing or trial held under the provisions of the Uniform Parentage Act [40-11-1 to 40-11-23 NMSA 1978] may be held in closed court without admittance of any person other than those necessary to the action or proceeding. The court may order that certain papers and records pertaining to the action or proceeding, whether part of the permanent record of the court or any other file maintained by the state or elsewhere, are subject to inspection only upon consent of the court; provided, however, nothing in this section shall infringe upon the right of the parties to an action or proceeding to inspect the court record.

40-11-21. Action to declare mother and child relationship. (1986)
Any interested party may bring an action to determine the existence or nonexistence of a mother and child relationship. Insofar as practicable, the provisions of the Uniform Parentage Act [40-11-1 to 40-11-23 NMSA 1978] applicable to the father and child relationship apply.

40-11-22. Birth records. (1986)

A.  Upon order of a court of this state or upon request of a court of another state, the vital statistics bureau of the health services division of the health and environment department [department of health] shall prepare a new certificate of birth consistent with the findings of the court and shall substitute the new certificate for the original certificate of birth.

B.  The fact that the father and child relationship was declared after the child’s birth shall not be ascertainable from the new certificate, but the actual place and date of birth shall be shown.

C.  The evidence upon which the new certificate was made and the original birth certificate shall be kept in a sealed and confidential file and be subject to inspection only upon order of the court and consent of all interested parties, or in exceptional cases only upon an order of the court for good cause shown.

40-11-23. Limitation. (2004)
An action to determine a parent and child relationship under the Uniform Parentage Act shall be brought no later than three years after the child has reached the age of majority.