A-1-CA-35816 | Omnilex

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IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

Court of Appeals of New Mexico
Opinion Number: Filed 12/28/2018 10:30 AM

Filing Date: December 28, 2018 MF ne
Mark of

NO. A-1-CA-35816

CARRIE BECK HOPKINS
f/k/a CARRIE DENISE BECK,

Petitioner-Appellant,

ALLAN BENTON WOLLABER,
Respondent-Appellee.

APPEAL FROM THE DISTRICT COURT OF LOS ALAMOS COUNTY
Matthew J. Wilson District Judge

Carrie Hopkins
Los Alamos, NM

Pro Se Appellant

Cuddy & McCarthy, LLP
Aaron J. Wolf
Julie S. Rivers
Santa Fe, NM

for Appellee

OPINION

HANISEE, Judge.

4}. Carrie Beck Hopkins (Mother) appeals pro se the district court’s order
permitting her ex-husband, Allan Benton Wollaber (Father), to relocate with their
children (Son and Daughter) (collectively, Children) to Massachusetts. In addition
to raising various due process claims, none of which we find persuasive, Mother
challenges what she perceives to be the district court’s termination of joint legal
custody and grant of sole legal custody to Father. !

23, We conclude that the district court’s order did not terminate, but rather
modified, joint custody by awarding primary physical custody to Father. We affirm
that aspect of the district court’s ruling but, concluding that the district court’s order
is ambiguous as to legal custody, remand with instructions that the district court

amend its order to clarify that Mother and Father continue to share joint custody of

Children.

' As we discuss herein, custody is of two types in New Mexico: legal and
physical. For clarity and purposes of this opinion, we hereinafter use the statutory
terms “joint custody” or “sole custody” to refer to the two types of legal custody
provided for in New Mexico. We take care to avoid use of the generic term
“custody”—except to reflect where and how it is used in the record, or where
contextually appropriate in our discussion—because of the inherently ambiguous
nature of the term and the confusion that ensues (as evidenced by this case) when
parties and courts fail to distinguish between and specify which type of custody is at
issue. .

BACKGROUND

3} Upon their divorce in January 2013, Mother and Father (collectively, Parents)
agreed to joint custody and a parenting plan that included a time-share schedule for
Son and Daughter, then ages seven and five. respectively. Under the original
parenting plan, Mother was generally responsible for Children during the week, and
Father was responsible for Children on weekends. Although the parenting plan was
amended at various times to modify Parents’ timesharing arrangement to alternating
weeks of responsibility and address other issues, legal custody of Children remained
joint in Mother and Father.

{44 Atsome point in 2015 Father began exploring a possible relocation to Boston,
Massachusetts, but indicated an unwillingness to move without Children. In
February 2016 Father formally filed for a “change of custody and to relocate with”
Children to Boston, requesting “that he be awarded sole legal custody and that he be
permitted to relocate with [Children] prior to the upcoming 2016-2017 school year.”
The district court referred the parties to Family Court Services for an advisory
consultation and expedited the schedule because Father had already obtained new
employment in Boston and hoped to relocate with Children by Fall 2016. Upon
completion of | the consultation process, advisory consultant Gary Lombardo

recommended that “[C]hildren primarily reside with Father and relocate with Father

to the Boston, Massachusetts area.” Lombardo’s report also included a
recommendation that “Father maintain sole legal custody” of Children.

5} A two-day hearing was held in July 2016. At the end of the hearing, the district
court granted Father’s motion to relocate with Children and adopted Lombardo’s
recommendations in full “without modification.” The district court’s written order
said nothing about legal custody, i.e., whether Parents would retain joint custody or
whether joint custody was being terminated and sole custody being awarded to
Father. Mother moved for reconsideration and to stay the district court’s order. From
the district court’s denial of both motions, Mother appeals.

DISCUSSION

{6} Mother makes two arguments on appeal: (1) the district court erred in
“terminating the joint custody award],]” granting Father sole custody, and permitting
Father to relocate Children to Boston; and (2) the district court’s “termination of
joint custody” deprived Mother of her constitutional right to due process of law. We
address each issue in turn.

L The District Court’s Custody Determination

(7; Mother argues that the district court erred by “terminating the joint custody
award” and awarding Father sole custody absent a finding that “there was a
substantial and material change in circumstances justifying termination of joint

custody.” Mother contends that a custodial parent’s long-distance relocation “is not

necessarily” a basis for terminating joint custody because “parents can—and do—
continue to share joint custody of their children even when they do not live in the
same state.” Mother additionally challenges that aspect of the district court’s order
permitting Father to relocate Children to Boston. She argues that Father failed to
meet his burden of demonstrating that it was in Children’s best interest to move with
Father and that the district court erred by granting Father’s motion to relocate
without considering the needs and best interests of Children.

{8} We first address whether the district court’s ruling indeed effectuated
termination of Mother’s legal custodial rights or merely modified Parents’ existing
custody arrangement to accommodate Father’s relocation. We then resolve whether
the district court erred in modifying custody by awarding primary physical custody
to Father. |

Standard of Review

{9} “We review a district court’s child custody determination for abuse of

discretion.” Hough v. Brooks, 2017-NMCA-050, ¢ 18, 399 P.3d 387, cert. denied,
___P.3d___ (No. S-1-SC-36387, May 4, 2017). To the extent the issues presented
involve construction of New Mexico’s custody statutes, our review is de novo. See
id. J] 20, 21 (noting that the question of whether New Mexico’s joint custody statute,
NMSA 1978, § 40-4-9.1 (1999), applies to the facts of that case “is an issue of

statutory construction that we review de novo”).

—

A. The District Court Order Modified and Did Not Terminate Joint Custody
{10} We begin by noting that it is not entirely clear whether the district court
appreciated, much less intended, that its ruling might, in fact, result in termination
of joint custody. The district court’s order neither states—from the standpoint of
legal custody—that joint custody was being terminated nor expressly grants Father
sole custody. Rather, the district court’s order adopts “without modification”
Lombardo’s recommendations, which included that “Father maintain sole legal
custody.” But that recommendation reflects a critical misunderstanding of the
preexisting legal status, i.e., that Father had never, in fact, been awarded “sole legal
custody.”? It is unclear what Lombardo’s apparent belief that Father had already
been granted sole custody—evinced by his recommendation that Father maintain
sole custody—was based upon, or that Lombardo or the district court understood the
legal significance of that particular recommendation. But by adopting Lombardo’s

recommendations wholesale and without modification or clarification, the district

* The record indicates that the first time any mention of sole custody occurred
was in Dr. Priscilla Roberts’ December 2015 priority consultation report, in which
she departed from earlier recommendations that “Mother and Father maintain joint
custody” and for the first time recommended that “Father have sole legal custody.”
However, Dr. Roberts’ December 2015 recommendations were never adopted due
to Parents’ respective objections. Instead, the parties proceeded to the advisory
consultation in preparation for a custody hearing on Father’s February 2016 motion
for “change of custody.”

court arguably terminated joint custody and, at the very least, rendered uncertain the
legal custodial status of Mother and Father.

113. We conclude that the district court’s order is ambiguous because it does not
clearly address, or certainly and unequivocally resolve the threshold question of
whether Mother’s joint custody status was terminated and the related question of
whether sole custody was awarded to Father. See Allred v. N.M. Dep’t of Transp.,
2017-NMCA-019, § 23, 388 P.3d 998 (explaining that “[a] judgment must be certain
and unequivocal such that it disposes of the matters at issue between the parties
[such] that they will be able to determine with reasonable certainty the extent to
which their rights and obligations have been determined” (alterations, omission,
internal quotation marks, and citation omitted)), cert. denied, P.3d___ (No.S-
1-SC-36235, Jan. 12, 2017). We, therefore, proceed to construe the order to
determine the district court’s intention, i.e., whether it intended to terminate joint
custody or merely modify Parents’ existing custody arrangement. See id. (“Our goal
in construing an ambiguous judgment is to determine the intention and meaning of
the author.” (alteration, internal quotation marks, and citation omitted)). To aid our
construction, we look to the judgment, pleadings, and entire record. See id.
(explaining that “if the meaning [of a judgment] is obscure, doubtful, or ambiguous,
the judgment, pleadings, and entire record may always be resorted to for the purpose

of aiding in the construction thereof” (internal quotation marks and citation

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omitted)); see also Fed. Nat'l Mortg. Ass'n v. Chiulli, 2018-NMCA-054, { 14, 425
P.3d 739 (explaining that “when an order or judgment has some ambiguity or
uncertainty, it may be construed in the light of the pleadings, other portions of the
judgment, findings, and conclusions of law”).

{123 We begin, however, with a discussion of the differences between (1) legal and
physical custody, and (2) modification and termination of custody, a discussion
intended to clarify important distinctions in the law that were blurred, confused, and
conflated in this case, leading to the ambiguity we must now resolve. These
clarifications are important because different legal standards apply—and the party
seeking a change in legal custody bears a different evidentiary burden—when
termination of joint custody, as opposed to modification of physical and/or legal
custody, is sought. We explain.

1. _ Legal Versus Physical Custody, and Termination Versus Modification of
Custody

a. Legal Versus Physical Custody

{13}. In the context of determining the custody of children upon dissolution of
marriage in New Mexico, “custody” is defined as “the authority and responsibility
to make major decisions in a child’s best interests in the areas of residence, medical
and dental treatment, education or child care, religion and recreation[.]” Section 40-
4-9.1(L)(2) ; see In re Guardianship of Ashleigh R., 2002-NMCA-103, ¢ 13, 132

N.M. 772, 55 P.3d 984 (“Legal custody is a status created by court order and vests
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in a person [or persons] the right to determine where and with whom a child will
live.”). New Mexico statutorily recognizes two types of legal custody: (1) “Soint
custody,” in which custody of a child is awarded to two parents, Section 40-4-
9.1(L)(4), (2) “sole custody,” which awards custody of a child to one parent,
Section 40-4-9.1(L)(8). Joint custody is presumed to be in the best interests of a child
when an initial custody determination is made. Section 40-4-9.1(A).

143 An award of joint custody entitles each parent to (1) “significant, well-defined
periods of responsibility for the child”; (2) “responsibility for the child’s financial,
physical, emotional and developmental needs during that parent’s periods of
responsibility”; and (3) the right to be consulted by the other custodial parent “on
major decisions involving the child before implementing those decisions[.]” Section
40-4-9.1(J). In other words, joint custody “give[s] to both parents an equal voice in
the children’s education, upbringing, and general welfare.” Strosnider v. Strosnider,
1984-NMCA-082, 18, 101 N.M. 639, 686 P.2d 981 (internal quotation marks and
citation omitted). By contrast, where sole custody is awarded to one parent, the
noncustodial parent enjoys merely the right of “visitation,” which is defined as “a
period of time available to a noncustodial parent, under a sole custody arrangement,
during which a child resides with or is under the care and control of the noncustodial
parent.” Section 40-4-9.1(L)(9). A noncustodial parent, i.e., a parent who is not

granted or is terminated from joint custody, necessarily does not share the same

decision-making rights and parenting status that the custodial parent enjoys. Thus,
there is legal—as well as social—significance to being designated a joint custodian
and, concomitantly, to having one’s joint custodial rights terminated. See Taylor v.
Tittman, 1995-NMCA-034, § 14, 120 N.M. 22, 896 P.2d 1171 (“Termination of joint
custody and the award of sole custody to one of the parents is a matter of great
importance.”).

{15} Physical custody refers simply to the period of responsibility for which each
parent—whether custodial or noncustodial—has physical care and supervision of
the child or children. See NMSA 1978, § 40-10A-102(14) (2001) (defining “physical
custody” as “the physical care and supervision of a child”); Jaramillo v. Jaramillo,
1991-NMSC-101, 14 n.4, 113 N.M. 57, 823 P.2d 299 (explaining that “the term
‘physical custody’ is synonymous with other terms used in Section 40-4-9.1,
including the term ‘residence,’ and, importantly, the term ‘period of responsibility’ ”
(citation omitted)). In general, physical custody may be shared, meaning that each
parent has physical custody approximately one-half of the time, or one parent may
be designated as the primary physical custodian, meaning that “the child resides with
that parent more than half the time.” Jaramillo, 1991-NMSC-101, ¥ 14.

{16} Importantly, while physical and legal custody are related, the specific types of

legal custody (joint or sole) and physical custody (shared or primary) are neither

mutually dependent nor mutually exclusive.’ Thus in a situation where the parents
have joint custody, physical custody may be shared, or either parent may be
designated primary physical custodian, which status is subject to change without
necessarily affecting legal custody. See § 40-4-9.1(L)(4) (providing that “[jJoint
custody does not imply an equal division of the child’s time between the parents”);
Taylor, 1995-NMCA-034, J§ 2-3 (explaining that the parties originally shared “joint
legal custody” with the father being awarded “primary physical custody” and that
upon a later motion by the mother, a new order was entered that “continued joint
custody but changed the award of primary physical custody” from the father to the
mother); Jaramillo v. Jaramillo, 1985-NMCA-062, 7 15, 103 N.M. 145, 703 P.2d
922 (explaining that “[a]n award of joint custody ... may at times require the
[district] court to adopt a specific finding indicating which parent, in the child’s best
interest and welfare, should be awarded primary physical custody of the child”). In
other words, legal custody does not automatically determine or establish the terms
of physical custody. Likewise, the designation or modification of physical custody
neither dictates nor necessarily bears on either the type of legal custody awarded or
whether there should be a change in legal custody, i.e., from joint to sole or sole to

joint. Indeed, as we next discuss, the applicable standards and evidentiary showings

3 Indeed, even a noncustodial parent, i.e., a parent without legal custody,
enjoys physical custody of his or her child(ren) during periods of visitation. See § 40-

4-9.1(L)(9).
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that must be made to modify custody (physical or legal), on the one hand, and
terminate joint custody, on the other, differ.

b. Modification Versus Termination of Custody

417} Custodial inquiries begin with the well-established rule that once custody has
been initially determined, “[e]very presumption is in favor of the reasonableness of
the original decree” and “the burden is on the moving party to satisfy the court that
circumstances have so changed as to justify the modification” of custody.
Schuermann v. Schuermann, 1980-NMSC-027, 94, 94 N.M. 81, 607 P.2d 619
(internal quotation marks and citation omitted). As this Court has explained, this rule
“is based upon policy grounds recognizing that[] frequent changes . . . are difficult
for children to adapt to even under the best of circumstances.” Campbell v. Alpers,
1990-NMCA-037, q 20, 110 N.M. 21, 791 P.2d 472 (alteration, internal quotation
marks, and citation omitted), The Legislature has provided that “[t]he court may
modify and change any order ... in respect to the ...custody, maintenance or
education of the children whenever circumstances render such change proper.”
NMSA 1978, § 40-4-7(G) (1997). We have interpreted this to mean that “a court
may modify a custody order only upon a showing of a substantial change in
circumstances affecting the best interests and welfare of the child, and a showing

that such change of circumstances has occurred since the entry of the prior custody

order.” Campbell, 1990-NMCA-037, § 20.

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{18} Termination of joint custody is, no doubt, a type of custody modification, but
one that is specially governed by a separate statute. In 1986 the Legislature for the
first time adopted the presumption in favor of joint custody in initial custody
determinations. Compare 1981 N.M. Laws, ch. 112, § 1(a) (providing that “[i]n any
proceeding in which there is at issue the custody of a minor, the court should first
consider an award of joint custody of the minor if it is in the best interests of the
minor’), with 1986 N.M. Laws, oh. 41, § 1(A) (providing that “[t]here shall be a
presumption that joint custody is in the best interest of a child in an initial custody
determination”). At the same time and following the establishment of that
presumption, it specifically provided that:

With respect to any proceeding in which it is proposed that joint

custody be terminated, the court shall not terminate joint custody

unless there has been a_ substantial and material change in

circumstances affecting the welfare of the child, since entry of the joint

custody order, such that joint custody is no longer in the best interests

of the child.
Section 40-4-9.1(A) (emphasis added). In light of how the Legislature elected to |
define joint custody and its recognition in that definition of the fundamental nature
and importance of the rights attendant to parenting, it is unsurprising that the
Legislature established a different standard by which termination of joint custody—
which effectively terminates one parent’s right to an equal voice in the child’s

upbringing, see Strosnider, 1984-NMCA-082, 18—is to be determined. Thus, in

accordance with the special standard established in Section 40-4-9.1(A), a district
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court shall not terminate joint custody unless the party moving for termination has
met his or her burden of proving that there has been (1) “a substantial and material
change in circumstances” (2) that has “affect[ed] the welfare of the child” (3) “such
that joint custody is no longer in the best interests of the child[,]” and (4) that the .
circumstances providing the basis for the proposed termination did not exist at the
time the joint custody order was originally entered.

{193} Where a moving party fails to meet its burden or the record contains no
evidence that termination was, in fact, sought, termination of joint custody is
improper, though the terms of the continuing joint custody arrangement may
otherwise still be modified. See Taylor, 1995-NMCA-034, Jf 6, 17 (holding that
“the district court erred in terminating joint custody and awarding [the m]other sole
custody” where the record indicated that “neither party addressed the possibility of
terminating joint custody[,]” but affirming other provisions modifying joint custody,
including permitting the mother to relocate with the child to Japan, the father’s
periods of responsibility, and “any other provisions that are not inconsistent with
continuation of joint custody”).

2. The District Court’s Ruling Affected Modification, Not Termination, of
Joint Custody and Modified the Physical Custody Arrangement

{20} Returning to the district court’s ruling in this case and applying the foregoing,

we conclude for the following reasons that the district court intended not to terminate

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Mother’s joint custody rights but rather to modify joint custody by awarding primary
physical custody to Father and permitting Father to relocate Children to Boston.

{21} First, neither the district court’s ruling from the bench nor its written order
reflecting its oral ruling contains any indication that it considered, much less applied,
Section 40-4-9.1’s specific standard for terminating joint custody. Instead, the
district court’s order reflects that it treated the case as a custody modification,
necessitated by Father’s impending relocation, and applied the standard for
modifying custody. This is most clearly evidenced by the district court’s statement
that “[t]he burden of proof as to whether it is in the best interest of the parties’ minor
children to relocate out of state with Father or remain in New Mexico with Mother
does not lie with either party.” This rule, while a proper statement of New Mexico
law, applies in cases involving a relocating custodial parent’s request to modify joint
custody, not terminate it. See Jaramillo, 1991-NMSC-101, 5, 7, 26-27 (adopting
a “procedure for relocation disputes” in cases in which joint custody in both parents
is “continued” but one parent seeks modification of the joint custody arrangement in
order to accommodate a long-distance relocation). That a parent’s relocation may
support, even necessitate, modification of a joint custody arrangement does not
support the altogether different conclusion that a custodial parent’s proposed
relocation justifies termination of joint custody. Indeed, a parent’s relocation, alone,

cannot establish the basis for terminating joint custody absent a showing that the

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relocation is “affecting the welfare of the child” and that “joint custody is no longer
in the best interests of the child.” Section 40-4-9.1(A). Thus, had the district court
intended to terminate joint custody, it would have been error to do so by relying on
and applying the standard set forth in Jaramillo. We, therefore, presume that the
district court’s application of Jaramillo indicates that it intended only to modify—
not terminate—joint custody. See Holcomb v. Rodrigues, 2016-NMCA-075, ¥ 28,
387 P.3d 286 (explaining that “where the record is unclear, we presume regularity
and correctness of the district court’s actions” (alteration, internal quotation marks,
and citation omitted)).

922} ~Second, to the extent the district court and Lombardo believed that Father’s
relocation either necessitated or itself provided a basis for terminating joint custody
and awarding sole custody to Father, we conclude that this mistaken belief was based
on a misunderstanding of the distinctions and relationship between legal and
physical custody and improper use of the term “sole custody” during the
proceedings. This is most evident in Lombardo’s testimony at the custody hearing,
where he explained that one of the reasons he recommended that Father have “sole
legal custody with the exception of changes to [C]hildren’s religious upbringing” is
that it is “pretty common in long-distance relocation scenarios for there to be sole
legal custody for the decision-making” that the parent with physical custody of the

children would logically be tasked with making given that the other parent would

have “a significant difficulty in having all the facts necessary to make those kinds of
on-the-ground decisions in a community where they’re not residing.” In other words,
because Father would be in Boston with Children and would have a better
understanding of the local schools, activities, medical facilities, neighborhoods, etc.,
Lombardo recommended that “Father make all decisions regarding [Children’s]
education, child care, health care, ongoing activities, and residence.” But the
pragmatic need for Father to have decision-making authority out of logistical
convenience does not supply a sufficient legal basis to terminate Mother’s legal
custody of Children, particularly when increased decision-making authority could
be allocated to Father without terminating joint custody.* See § 40-4-7(G) (providing
that the district court “may modify and change any order ... in respect to the...
custody ... of the children whenever circumstances render such change proper’)
and § 40-4-9.1(J)(5)(d) (providing that “[a]n award of joint custody means that...
decisions regarding major changes in a child’s life may be decided by . . . allocating

ultimate responsibility for a particular major decision area to one legal custodian”).

* We note that the other reason given by Lombardo—that there had been “a
substantive challenge in the co-parenting relationship” between Mother and Father,
meaning that Parents were engaging in “parallel” rather than cooperative parenting
and decision-making—is also an insufficient basis for terminating a parent’s joint
custody. Cf Alfieri v. Alfieri, 1987-NMCA-003, J 27, 105 N.M. 373, 733 P.2d 4
(explaining that it has been “recognized that a custodial parent’s demonstrated lack
‘of cooperation [with the other parent] and refusal to follow prior court orders
conceming visitation may constitute grounds for a change of custody in an extreme
case” (emphasis added)).

23} Moreover, we note that other aspects of Lombardo’s recommendations further
support the interpretation that what Lombardo was recommending was not, in fact,
termination of joint custody but rather modified joint custody with primary physical
custody in Father. First, Lombardo recommended that “Father not change the
children’s religious upbringing without Mother’s prior written approvall,]” a
recommendation plainly inconsistent with a goal of terminating Mother’s custodial
rights. See § 40-4-9.1(L)(2) (providing that “the authority and responsibility” to
make decisions regarding the child’s religion is encompassed within an award of
“custody”). Additionally, Lombardo recommended that Mother be listed as a parent
on all forms and that Father “immediately provide Mother with the relevant
information” regarding decisions Father was empowered to make. Lombardo
explained that the reason for these recommendations was that he believed it was
important for Mother “to be able to obtain information for herself, to be able to
evaluate and know for herself... how [Children] are doing and what kinds of
treatment they’re receiving.” Finally, Lombardo described his timesharing
recommendation as providing Mother with “seven opportunities for extended
visitation” throughout the year, including a six-week period during Children’s
summer break, which Lombardo noted was “pretty good frequency given the long-
distance relocation.” In other words, Lombardo’s timesharing recommendation

included “significant, well-defined periods of responsibility” for Children consistent

with an award of joint custody. See § 40-4-9.1(J)(1) (providing that “[a]n award of
joint custody means that . . . each parent shall have significant, well-defined periods
of responsibility for the child”). ° Thus, by all indications, Lombardo’s
recommendations sought to maintain for Mother an “equal voice” in Children’s
upbringing, i.e., joint custody, to the extent practicable under the circumstances. See
Strosnider, 1984-NMCA-082, { 18.

24} Finally, on the entire record before us it is apparent that even if Father
intended to seek sole legal custody, he failed to present the sort of proof necessary
to have the court grant such a request under the applicable statutory standard. Indeed,
on appeal Father identifies nothing other than his relocation as a “substantial and
material change” to support a change in custody, cites Jaramillo, 1991-NMSC-101,
then goes on to list evidence supporting each of the best-interest factors to support
modification of custody in accordance with Jaramillo. This reflects one of two
things: either that Father did not intend to terminate joint custody and sought only to
modify custody and prove that it was in Children’s best interests to relocate with him
to Boston in order to be granted primary physical custody, or that Father did not
understand, and thus could not meet, his burden to effectuate termination of joint

custody. In either case, we are satisfied that the absence of the kind of evidence

> Indeed, the district court’s order denying Mother’s motion for
reconsideration includes a finding that Children “will still have significant blocks of
time with their Mother.”

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necessary to terminate a parent’s legal custody—particularly Father’s failure to even
identify, much less prove, a change of circumstance sufficient to warrant
termination—further supports an interpretation of the district court’s order as
modifying rather than terminating joint custody.

25} For the foregoing reasons, we conclude that the district court did not intend to
terminate joint custody, that its order affected modification—not termination—of
joint custody in order to allow Father to relocate with Children to Boston, and that
Mother and Father continue to share joint custody in Children. The next question,
then, is whether the district court’s modification of joint custody should be affirmed.

B. ‘The District Court Did Not Abuse its Discretion in Modifying Legal and .
Physical Custody and Permitting Father to Relocate to Massachusetts

26} Upon aparty’s motion to modify an existing joint custody arrangement due to
a custodial parent’s relocation, it “becomes incumbent on the [district] court to
consider as much information as the parties choose to submit, or to elicit further
information on its own motion . . ., and to decide what new arrangement will serve
the child[ren]’s best interests.” Jaramillo, 1991-NMSC-101, 427. “The guiding
principle in child custody determinations is the best interests of the child.” Hough, |
2017-NMCA-050, § 28. “In such a proceeding, neither parent will have the burden
to show that relocation of the child[ren] with the removing parent will be in or
contrary to the child[ren]’s best interests.” Jaramillo, 1991-NMSC-101, § 27.

Rather, “[e]ach party will have the burden to persuade the court that the new custody
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arrangement or parenting plan proposed by him or her should be adopted by the
court[.]” Id Ultimately, the district court must “adopt the arrangement or plan that
it determines best promotes the child[ren]’s interests.” Jd. The district court must
consider the applicable statutory factors for determining what is in the children’s
best interests, and its determination will be affirmed if its order reflects that it
considered the relevant factors. See Thomas v. Thomas, 1999-NMCA-135, { 16, 128
N.M. 177, 991 P.2d 7 (noting that “the trial court did not make point-by-point
findings to correspond to the statutory factors” but concluding that the court’s order
“sufficiently tracks the factors, indicating that the court considered them in making
its decision”).

27} Here, the district concluded that granting Father’s motion to relocate Children
to Boston would be in the best interests of Children. In support of this conclusion,
the district court made numerous findings, including that: (1) Mother has “mental
health issues” that “are difficult to correct”; (2) Father “is within the normal
spectrum” according to the psychological testing that was administered; (3) “Father
is more likely to promote co-parenting with Mother”; and (4) Children “are less
likely to have problematic outcomes as adults and . . . more likely to have a quality
relationship with each parent” if they “live primarily with Father[.]” Notably,
Mother does not challenge whether these findings are supported by substantial

evidence, meaning they are binding on this Court. See Seipert v. Johnson, 2003-

NMCA-119, { 26, 134 N.M. 394, 77 P.3d 298 (“An unchallenged finding of the trial
court is binding on appeal.”). Rather, Mother principally complains that the district
court failed to consider the wishes and néeds of Children and “any negative impact
on... Children that would be caused by a change in custody.” The record does not
support this contention.

8} The district court specifically acknowledged that Children “do not want to
relocate with Father” and that “[t]hey would like to remain in Los Alamos where
they go to school and where their friends are currently located.” The district court
also noted that Children “are doing well in their current schooling.” In other words,
the district court considered Children’s wishes regarding relocation and recognized
that there were factors weighing in Mother’s favor and against permitting relocation.
But the fact that certain factors weighed against relocation does not compel the
conclusion that the district court erred by ordering relocation. Additionally, we
disagree with Mother that the district court failed to consider the possible “negative
impacts” on Children resulting from, or “risks” associated with relocation. The
district court specifically found that Children “are at an age that gives them the
biggest opportunity to adapt positively to any relocation with Father.” This finding
is supported by Lombardo’s testimony that Children’s resilience, cognitive capacity,
and ages were predictive of a successful relocation. And implicit in this finding is

the district court’s acknowledgment, and rejection, of Mother’s argument that

relocation could put Children at a “significant” risk “of acting-out and self-harming
behaviors.” In other words, the record indicates that the district court considered all
of the factors necessary in determining whether relocation was in the best interests
of Children.

9} Weconclude that the district court did not abuse its discretion in modifying
joint custody, awarding primary physical custody to Father, and eranting Father’s
motion to relocate Children to Boston.

Ill. Mother’s “Due Process” Arguments

30} Mother argues that the district court’s custody determination deprived Mother
of her constitutional right to due process of law. She specifically contends that: (1)
psychological evaluations relied on by the district court in its judgment “were not
conducted in the ordinary manner”; (2) the district court ered by granting in part the
motion for a protective order sought by Judy Baker, Children’s therapist, thereby
limiting Mother’s ability to depose Baker and leading to Mother’s “inability to cross-
examine [Baker] on critical issues”; (3) “ordinary procedures for modifying joint
custody were not followed”; (4) “there is both the appearance of bias, as well as
actual bias” in this case, depriving her of her “procedural due process right to have
her case decided in a fair and impartial way”; and (5) the result in this case
constitutes a violation of her and Children’s “substantive due process rights to pursue

their familial relationships.”

{313}, Mother first argues that the district court’s judgment “is also infirm because
it rests on psychological testing conducted in a highly unorthodox and improper
manner.” While Mother includes this argument under the umbrella of “due process”
violations, she provides no explanation of how admission of and the district court’s
reliance on psychological test results—even if arrived at through an “unorthodox”
process—deprived Mother of due process. She does not even mention “due process”
or cite a single authority in support of her conclusory contention that “[i]t should
shock the judicial conscience that mental and emotional disorders that have never
been diagnosed can be bandied about in [such a] fashion to deprive a parent of
custody of her children.” Instead, Mother effectively argues that the district court
should not have adopted Lombardo’s recommendations in light of Mother’s expert
Dr. Ned Siegel’s opinion that Lombardo “did not give a fair and even presentation
of ...[PJarents’ psychological states.” But the district court, as the finder of fact,
was free to give Dr. Siegel’s opinion as much or as little weight as it deemed
appropriate. See State v. Armijo, 2005-NMCA-010, 74, 136 N.M. 723, 104 P.3d
1114 (noting that “it is for the fact-finder to evaluate the weight of the evidence”).
Because Mother wholly fails to explain how the psychological testing and the district
court’s reliance thereon deprived her of due process, we consider this argument no
further. See Headley v. Morgan Mgmt. Corp., 2005-NMCA-045, 9 15, 137 N.M.

339, 110 P.3d 1076 (“We will not review unclear arguments, or guess at what [a

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party’s] arguments might be.”); ITT Educ. Servs., Inc. v. Taxation & Revenue Dep't,
1998-NMCA-078, § 10, 125 N.M. 244, 959 P.2d 969 (explaining that this Court will
not consider propositions that are unsupported by citation to authority).

(323 Mother next argues that she was “not afforded a fair process” because the
district court limited her ability to question Baker. However, Mother fails to explain
how the district court’s restriction of her ability to question Baker resulted in a
violation of Mother’s due process rights and cites no authority to support her
argument. See Corona v. Corona, 2014-NMCA-071, § 28, 329 P.3d 701 (“This
Court has no duty to review an argument that is not adequately developed.”); see
also In re Adoption of Doe, 1984-NMSC-024, | 2, 100 N.M. 764, 676 P.2d 1329
(“We assume where arguments in briefs are unsupported by cited authority, counsel
after diligent search, was unable to find any supporting authority.”). Indeed, as our
Supreme Court has explained, the opportunity to confront a witness in a civil, as
opposed to criminal, proceeding “is not an absolute right. Instead the right [of due
process] requires that parents be given a reasonable opportunity to confront and
cross-examine a witness[.]” In re Pamela A.G., 2006-NMSC-019, 4 12, 139 N.M.
459, 134 P.3d 746. To maintain a due process claim based on inability to cross- |
examine a witness, the party must “demonstrate that there is a reasonable likelihood
that the outcome might have been different.” Jd. 7 14 (internal quotation marks and

citation omitted). The record indicates that Mother questioned Baker extensively

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during her deposition and that Baker’s counsel objected to very few of-Mother’s
questions. Critically, Mother fails to demonstrate that the outcome here—
modification of joint custody—might have been different had she been able to fully
question Baker. We, therefore, conclude that Mother has failed to establish a due
process violation resulting from entry of the protective order.

33} Mother’s next two arguments fare no better. Mother fails to demonstrate that
the “ordinary procedures for modifying joint custody were not followed in this case”
as she claims, much less that any purported failure to follow “ordinary procedures”
somehow deprived her of due process. Mother also has not identified any statements
or actions by the district court, Dr. Roberts, or Lombardo that would indicate an
improperly favorable mindset toward Father over Mother, meaning she has failed to
overcome the presumption of impartiality as she must in order to demonstrate the
type of bias needed to support a due process claim. See Am. Fed’n of State, Cty. &
Mun. Emps. v. Bd. of Cty. Comm’rs of Bernalillo Cty., 2015-NMCA-070, J 10, 352
P.3d 682 (explaining that “[t]he burden of overcoming the presumption of
impartiality rests on the party making the assertion of bias” and that “any alleged
prejudice on the part of the decision-maker must be evident from the record and
cannot be based on speculation or inference” (alteration, internal quotation marks,
and citation omitted)), vacated on other grounds by 2016-NMSC-017, 373 P.3d 989;

U.S. W. Comme’ns, Inc. v. N.M. State Corp. Comm’n, 1999-NMSC-016, 9 41, 127

N.M. 254, 980 P.2d 37 (explaining that “not all allegations of bias or prejudice are
of the type that render a proceeding fundamentally unfair’).

34} Finally, Mother’s argument that the district court’s termination of joint
custody deprived her of her fundamental right to raise her children is both effectively
mooted by our conclusion that joint custody was not terminated and also without
merit. While it is true that “case law recognizes parents’ fundamental constitutional
right to raise their children[,]” Ridenour v. Ridenour, 1995-NMCA-072, {| 7, 120
N.M. 352, 901 P.2d 770, “case law also establishes that parents’ right to raise their
children is not beyond regulation in the public interest.” Id. J 8. “New Mexico case
law establishes that parents’ rights are secondary to the best interests and welfare of
the children.” Jd. J 10. Here, the district court’s decision to modify custody to
allocate certain decision-making authority to Father was based on a consideration of
the best interests of Children as previously discussed. Mother’s argument that the
district court’s ruling “wrongly interfered with the pursuit of Mother’s parental
relationship with ... Children and deprived [her] of her constitutional right to due
process of law” is simply unavailing. Under the district court’s order and consistent
with Lombardo’s recommendations, Children “will still have significant blocks of
time with... Mother.” Additionally, Lombardo explained that his
recommendations, adopted by the district court, included that Mother be listed as

Children’s parent on all forms because he believed it was important for Mother “to

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be able to obtain information for herself, to be able to evaluate and know for herself
how the kids are doing and what kinds of treatment they’re receiving.” Lombardo
also recommend that Father be required to provide Mother with summaries of
Children’s medical and dental issues as they arose and were being addressed as well
as information regarding any changes in Children’s education, residence, and
ongoing activities. In other words, Mother’s parental relationship with Children—
while unavoidably impacted by the award of primary physical custody to Father and
his relocation with Children to Boston—has been not only neither terminated nor
interfered with in violation of Mother’s substantive due process rights but, in fact,
preserved and protected as much as conceivably possible under the circumstances.
35} Based on the foregoing, we conclude that Mother’s due process rights were
not violated by the proceedings and custody determination in this case.
CONCLUSION

36} We affirm the district court’s order modifying joint custody, granting Father
primary physical custody, and permitting Father to relocate Children to Boston.
Because of ambiguity in that order, however, we remand with instructions that the

district court amend its order in accordance with this opinion.

373 ITISSO ORDERED.

o whim

J. MILES HANISEE, Judge

1|
WE CONCUR:
2 4
Funda Wany. 3| LINDA M. VANZI, Chief Judge
5
MICHAEL E. VIGIL, Judge
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December 28, 2018- Carrie Beck Hopkins v. Allan Benton Wollaber, No. A-1-CA-35816

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