Except as otherwise provided in Section 204, a court of this state may not modify a child-custody determination made by a court of another state unless a court of this state has jurisdiction to make an initial determination under Section 201(a)(1) or (2) and:
(1) the court of the other state determines it no longer has exclusive, continuing jurisdiction under Section 202 or that a court of this state would be a more convenient forum under Section 207; or
(2) a court of this state or a court of the other state determines that the child, the child's parents and any person acting as a parent do not presently reside in the other state.
History: Laws 2001, ch. 114, § 203.
Limitation on court authority. — Under both 28 U.S.C. § 1738A(f) of the federal Parental Kidnapping Prevention Act and 40-10-15A NMSA 1978 (now see this section), the children's court lacks the authority to modify another state's custody decree unless the other court no longer has jurisdiction or has declined to exercise jurisdiction to modify its custody decree. State ex rel. Dep't of Human Servs. v. Avinger, 1985-NMCA-097, 104 N.M. 355, 721 P.2d 781, aff'd, 1986-NMSC-032, 104 N.M. 255, 720 P.2d 290.
Section 40-10-15A NMSA 1978 (now see 32A-1-108 NMSA 1978) limits the court's exercise of jurisdiction in a "neglected child" proceeding brought under 32-1-9(A) NMSA 1978 (now 32A-1-8 NMSA 1978) where that proceeding could result in the modification of another state's custody decree where the other state has not given up jurisdiction. State ex rel. Dep't of Human Servs. v. Avinger, 1986-NMSC-032, 104 N.M. 255, 720 P.2d 290.
Federal Parental Kidnapping Prevention Act 28 U.S.C. § 1738A has supremacy over state law. Serna v. Salazar, 1982-NMSC-117, 98 N.M. 648, 651 P.2d 1292.
Compliance with jurisdictional prerequisites. — The New Mexico statute requires compliance with only one of four prerequisites in 40-10-4 NMSA 1978 (now see 40-10A-203 NMSA 1978) to satisfy the jurisdictional requirement. Olsen v. Olsen, 1982-NMSC-112, 98 N.M. 644, 651 P.2d 1288; Serna v. Salazar, 1982-NMSC-117, 98 N.M. 648, 651 P.2d 1292.
Law reviews. — For note, "Domestic Relations - An Interpretation of the Parental Kidnapping Prevention Act and the New Mexico Child Custody Jurisdiction Act; State ex rel. Dept. of Human Servs. v. Avinger," see 17 N.M.L. Rev. 409 (1987).
Am. Jur. 2d, A.L.R. and C.J.S. references. — Right to attorneys' fees in proceeding, after absolute divorce, for modification of child custody or support order, 57 A.L.R.4th 710.
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