March 2, 2017- Roy Neal Hough v. Summer Lynne Brooks, No. 34,572

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IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

Opinion Number:

Filing Date: March 2, 2017

NO. 34,572

ROY NEAL HOUGH,
Petitioner Appellee,

V.

SUMMER LYNNE BROOKS,
Respondent- Appellant.

APPEAL FROM THE DISTRICT COURT OF LINCOLN COUNTY
James Waylon Counts, District J udge

Freda Howard McSwane, P.C.
Freda Howard McSwane
Ruidoso, NM

for Appellee

William N. Griffin
Ruidoso, NM

for Appellant

OPINION
VANZI, Chief Judge.
{1} 	Summer Lynne Brooks (Mother) and her estranged husband, Roy Neal Hough
(Father), entered into a stipulated interim order that allowed Mother to relocate with
their four children from Ruidoso, New Mexico to Phoenix, Arizona. Approximately
eight months later, the district court ordered that the children move back to Ruidoso
to live with Father during the school year. On appeal, Mother argues that the district
court erred by (1) drastically changing the primary custodial arrangement without first
finding that a substantial and material change in circumstances had occurred, and (2)
not making specific findings that the change was in the children’s best interests. We
hold that the district court abused its discretion by not finding “a substantial and
material change in circumstances” before changing the existing custody arrangement,
as required by the New Mexico Joint Custody Statute, NMSA 1978, § 40-4-9.1(A)
(1999). We further hold that the district court abused its discretion by not conducting
a best interests analysis and by failing to consider any of the statutorily mandated
factors, under NMSA 1978, Section 40-4-9(A) (1977) and Section 40-4-9.1(B), and
that the district court’s custody determination was not supported by substantial
evidence. Accordingly, we reverse.

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BACKGROUND
{2} 	Although their marriage certificate was never filed, Mother and Father married
in October 1999 and lived together with their four children in their family residence
in Ruidoso. Mother is a school teacher, and Father is a wild-land firefighter employed
by the U.S. Forest Service.
{3} 	The couple’s relationship deteriorated after a March 2012 incident in which
Father kicked his eldest daughter, A.H., and broke her leg. Father was charged with
child abuse and bribery of a witness for encouraging A.H. to lie about what had
happened. Father pleaded no contest and received a conditional discharge. He was
placed on three years of probation and was required to undergo counseling. The
probation agreement stated that Father would “not associate with any person identified
by 	[his 	p]robation/[p]arole 	[o]fficer 	as 	being 	detrimental 	to 	[his 	p]robation
supervision,” including any victim or witness of his crimes. Father admitted that A.H.
was a victim of his crimes. After the charges were filed, Children, Youth and Families
Department (CYFD) and Father’s probation officer requested that Father leave the
family residence for six months, after which he had limited contact with the children.
Although Father did have phone calls with the children, they were intermittent as a
result of his job, which often took him out of cell phone service.
{4} 	Father did not see or talk to A.H. for at least two years after the incident. A.H.
is a special needs child, who had difficulties in school after the child abuse episode

3
and was removed from school by Mother to be home-schooled for a period of time.
A.H. had been evaluated after the child abuse incident and was diagnosed with
childhood schizophrenia.
{5} 	In March 2014, Father filed a petition to determine paternity, custody,
visitation, and child support (the petition). Specifically, Father sought joint legal and
physical custody of the children and an order for child support pursuant to the New
Mexico Child Support Guidelines. Mother did not dispute paternity and agreed that
Father should be granted legal or physical custody but stated that he should not be
granted unsupervised visitation until he completed his probation and counseling.
Mother also did not deny that child support should be awarded.
{6} 	Two weeks after Father filed the petition and before Mother had an opportunity
to file her answer, Father’s parents (Grandparents) filed a motion to intervene. The
motion sought, among other things, to allow Grandparents, who were residents of
Tennessee, to assist in making decisions about the children because Father was
“unable to properly care for the minor children alone based on his employment.”
Mother objected to the motion to intervene arguing lack of jurisdiction and other legal
grounds. The district court ultimately denied Grandparents’ motion in October 2014.
{7} 	Father and Mother entered into a joint stipulated custody, visitation, and support
agreement and, on June 3, 2014, the district court entered a stipulated interim order

4
reflecting the parties’ agreement. The stipulated interim order provided, in relevant
part:
2. 	[Mother], upon providing proof of employment [for a teaching
position] in Phoenix, Arizona, shall be allowed to relocate to
Phoenix, Arizona with the minor children.
3. 	[Father] shall have a two[-]week period of responsibility with the
minor children for two . . . weeks after the end of the 2013-2014
school 	year 	in 	Ruidoso, 	New 	Mexico. 	Said 	period 	of
responsibility shall take place at the children’s residence[.] . . .
Such supervised visitation shall be from July 6, 2014 through July
20, 2014.
4. 	[Father’s] parents shall supervise this visitation by remaining at
the residence with [Father] and the minor children.
5. 	After the minor children have relocated to Phoenix, Arizona,
[Father] shall be allowed nightly phone calls with the minor
children and Skype visits with the minor children at least two . . .
times per week.
6. 	Until further [o]rder of this [c]ourt, [Father] shall pay child
support to [Mother] in the amount of $949.81.
{8} 	In the summer of 2014, Mother obtained a teaching position at a private school
in Phoenix, Arizona, and pursuant to the stipulated interim order, relocated with the
children to Phoenix. Three of the children attended the private school as a benefit of
Mother’s employment, and A.H. attended a special school.
{9} 	Shortly thereafter, Father filed a motion to show cause, alleging that he had
“placed a phone call every night” to the children since July 20, 2014, as permitted by
the stipulated interim order, but had not been able to reach the children. Mother denied

5
that she missed multiple phone calls from Father, and filed a countermotion, alleging
that Father “has underpaid, or failed to pay, child support each month since June[]
2014.” According to Father, he paid utility bills on the family residence that Mother
had left unpaid and had given Mother an extra child support payment in March 2014.
The record does not indicate whether the district court ruled on this matter.
{10} 	Six months after the stipulated interim order was entered, the district court held
a child custody hearing. Both Father and Mother testified. Father said that he was in
favor of the move when it occurred and agreed that there were ample doctors in
Arizona that were better suited to address A.H.’s needs. In addition, Father knew that
one of his sons had struggled in Ruidoso public schools because of the son’s speech
difficulties. Nevertheless, Father no longer wanted the children to reside in Arizona.
He admitted that he “did not keep up with any of the kids while they were in school”
in Ruidoso and further acknowledged that he had no reason to believe the children
were not doing well in Arizona.
{11} 	Mother testified that the children were happy and doing well in the Phoenix
private school, and the child with speech issues received specialized support for his
disability. Furthermore, Mother said that A.H., who had struggled after the 2012
incident with Father, was doing better in Phoenix and was slated to get special
treatment where she would attend support sessions and where a psychiatrist and case
manager would visit her in the home.

6
{12} 	Testimony at the hearing established that, prior to the time he was required to
leave the family home, Father had undertaken numerous remodeling projects in the
Ruidoso residence that remained unfinished when he left. Father admitted that while
he lived there, he had punched holes in the walls. According to Mother, she had
difficulties with mice coming in through one of the areas involving Father’s
unfinished projects. Mother had neither the money nor the skills to make repairs or
finish the projects once Father was out of the house, nor did she allow Father to come
back to make repairs. Mother stated that she did not want Father in the home because
he was aggressive and could not control his temper. Moreover, having Father come
into the home to make repairs never panned out because of Father’s work schedule
and because A.H. was in the home. The result was that, at the time of Father’s July
2014 visitation period, which took place in the family’s Ruidoso residence, the
condition of the home was “horrible.” According to Father, the house smelled of
urine, was filthy, and there were mice feces throughout the premises.
{13} 	With respect to Grandparents, prior to the two-week visitation period in July
2014, it had been seven years since Grandparents had interacted with any of the
children, and they had never met the two younger children. The decision to cut off
contact between Grandparents and the children had been a mutual decision between
Father and Mother. Notwithstanding that they did not know the children, Father
testified that Grandparents would move to New Mexico from Tennessee to help him

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with the children if he was granted custody during the school year. Father’s mother
also testified to the same effect. There is no evidence in the record indicating whether
Grandparents actually moved to New Mexico.
{14} 	At a December 2014 hearing, the district court entered an order requiring that
the children spend Christmas break with Father. The exchange was to take place in
Lordsburg, New Mexico on December 20, 2014, and the children were to be returned
to Mother in Lordsburg on January 3, 2015. A.H. did not arrive in Lordsburg as
required by the order. Father filed a motion to show cause, alleging that Mother had
refused to bring A.H. for Christmas break and that, therefore, Mother should be held
in contempt. Mother responded that she “did everything within her power to compel
[A.H.] to go” and that A.H. herself had refused to go to Lordsburg for the holiday
exchange. Mother reiterated that A.H. had been “gravely injured” by Father, that she
had been diagnosed with schizophrenia and posttraumatic stress disorder (PTSD), that
Father was under a probation order not to have contact with A.H., and that A.H.
wanted “an audience with the [j]udge in chambers to express her desires [regarding]
visitation with [Father].” Moreover, A.H.’s counselor was developing a treatment
plan, recommending that A.H. and Father develop their relationship in “calculated
stages.”
{15} 	At a show cause hearing on March 30, 2015, A.H. testified that she did not want
to go to Lordsburg because Father’s physically abusive behavior made her feel unsafe.

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She also said that one of her counselors had developed a plan for her in which she
would establish a relationship with Father at her own pace. A.H. stated that the day
of the holiday exchange, Mother tried to make her go, but she had locked herself in
her room and refused to come out. Notwithstanding A.H.’s testimony and that it had
previously required visitation with the children to be supervised, the district court held
Mother in contempt, stating that she did not do “what was necessary to carry out the
[district court’s] order” and ordered Mother to pay Father’s attorney fees.
{16} 	On March 6, 2015, the district court memorialized its January 30, 2015 minute
order in a court-ordered parenting plan (the parenting plan). The parenting plan
granted joint legal custody to Father and Mother of all the minor children, with Father
being the primary physical custodian. Beginning with the 2015-2016 school year, the
children would reside with Father in Ruidoso “from one week before the start of
school through one week following the end of the school year.” This order invariably
conflicted with Father’s probationary status as it related to A.H., as his probation was
not scheduled to end until December 2015. The parenting plan provided that the
“children shall spend the summer break with [Mother] commencing one week after
the end of . . . school through one week before the beginning of school.” Although the
district court stated that it was in the best interests of the children to have “a
significant relationship with . . . [F]ather and [Grandparents,]” the parenting plan does
not provide a best interests analysis. Nor does it address any statutory factors as a

9
basis for the custody determination. Instead, the parenting plan simply stated that the
children’s relationship with Father “cannot be fostered if the children only see [him]
in the summer because his work requires him to be away from home for significant
periods of time in the summer due to fire season.” And, “[Mother] can best maintain
her relationship with the children during the summer months since she is a teacher and
will have summers off.” The parenting plan provided no guidance for transition from
Mother’s care to Father, nor did it address any particulars with respect to A.H.
{17} 	In sum for ease of reference, the pertinent and material events and dates set out
above started in March 2012. Father had limited contact with the children from about
March 2012 until about at least March 2014 when he filed his petition and likely until
June 3, 2014, which would have been over two years. Mother relocated to Phoenix
with the children around mid-summer 2014, pursuant to the stipulated interim order.
Father had a two-week visitation with the children, except A.H., in July 2014. In
December 2014, following a September motion for an order to show cause, the court
ordered visitation with Father over Christmas break in December 2014. There was a
January 30, 2015 minute-ordered parenting plan, memorialized on March 6, 2015,
ordering joint legal custody with Father having primary physical custody of all of the
children. A show cause hearing occurred on March 30, 2015. We now turn to the
arguments on appeal.

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DISCUSSION
Standard of Review
{18} 	We review a district court’s child custody determination for abuse of discretion,
and we will uphold the district court’s findings if they are supported by substantial
evidence. Grant v. Cumiford, 2005-NMCA-058, ¶ 13, 137 N.M. 485, 112 P.3d 1142.
“An abuse of discretion occurs when a ruling is clearly contrary to the logical
conclusions demanded by the facts and circumstances of the case.” Id. (internal
quotation marks and citation omitted). “Substantial evidence is such relevant evidence
that a reasonable mind would find adequate to support a conclusion.” State ex rel.
King v. B & B Inv. Grp., 2014-NMSC-024, ¶ 12, 329 P.3d 658 (internal quotation
marks and citation omitted). In addition, the failure of a district court to apply the
applicable statutory guidelines to order a change of custody will constitute an abuse
of discretion. State ex rel. Children, Youth & Families Dep’t v. Michelle B., 2001-
NMCA-071, ¶ 27, 130 N.M. 781, 32 P.3d 790.
The District Court Abused Its Discretion by Not Finding a Substantial and
Material Change in Circumstances
{19} 	Mother’s first argument on appeal is that the district court “erred in drastically
changing the primary custodial arrangement, requiring the children to move back to
Ruidoso from Phoenix[.]” In particular, Mother contends that the district court erred
by not making a finding that there was a substantial and material change in

11
circumstances, as required by Section 40-4-9.1(A), justifying a modification of the
stipulated interim order. Father responds that the stipulated interim order was not a
final order and that, therefore, departure from or modification of the order did not
require a showing of a substantial and material change in circumstances. For the
reasons that follow, we agree with Mother.
{20} 	Pursuant to NMSA 1978, Section 40-4-7(G) (1997), “[t]he court may modify
and change any order or agreement merged into an order in respect to the
guardianship, care, custody, maintenance or education of the children whenever
circumstances render such change proper.” However, such a modification or change
may occur “only upon a showing of a substantial change in circumstances since the
prior order that affects the best interests of the children.” Grant, 2005-NMCA-058,
¶ 13 (internal quotation marks and citation omitted). Section 40-4-9.1(A) specifically
states,
Joint custody shall not be awarded as a substitute for an existing custody
arrangement unless there has been a substantial and material change in
circumstances since the entry of the prior custody order or decree, which
change affects the welfare of the child such that joint custody is presently
in the best interests of the child.
{21} 	The question of whether the above statute applies to the present situation is an
issue of statutory construction that we review de novo. See State v. Saiz, 2001-
NMCA-035, ¶ 2, 130 N.M. 333, 24 P.3d 365. In engaging in statutory interpretation,

12
“our primary goal is to give effect to the intent of the [L]egislature[,]” and in doing
so, “we look first to the plain language of the statute.” Id.
{22} 	As noted above, Section 40-4-9.1(A) states, “Joint custody shall not be awarded
as a substitute for an existing custody arrangement unless there has been a substantial
and material change in circumstances.” (Emphasis added.) There is nothing in this
section that indicates an existing custody arrangement must be based on a final order
or entered after a merits hearing, as Father contends. Indeed, no case has been cited
to us, nor has any been found, that would limit the application of Section 40-4-9.1(A)
solely to final orders. See In re Adoption of Doe, 1984-NMSC-024, ¶ 2, 100 N.M. 764,
676 P.2d 1329 (stating that where a party cites no authority to support an argument,
we may assume no such authority exists). To the contrary, the plain language of the
statute refers—without limitation—to any “existing custody arrangement” that is
instituted by court “order or decree[.]” Section 40-4-9.1(A). We will not depart from
the clear meaning of the plain language of the statute, which by its terms, encompasses
the stipulated interim order because the district court’s order created an “existing
custody arrangement.” See id. See generally Summers v. N.M. Water Quality Control
Comm’n, 2011-NMCA-097, ¶ 16, 150 N.M. 694, 265 P.3d 745 (observing that, when
considering the plain language of the words in a statute, we “assume that the ordinary
meaning of the words expresses the legislative purpose” (internal quotation marks and
citation omitted)).

13
{23} 	Under the stipulated interim order, Mother was to be the sole custodian of the
children by virtue of her relocation with the children to Phoenix. See § 40-4-9.1(L)(8)
(defining “sole custody” as “an order of the court awarding custody of a child to one
parent”). The stipulated interim order does not make any provision for joint custody
or for Father’s custody. Father was only granted “supervised visitation” for a two-
week period of time. See § 40-4-9.1(L)(9) (“ ‘[V]isitation’ means 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.”).
Therefore, the stipulated interim order created a sole custody arrangement, and the
district court’s entry of the March 2015 parenting plan granting Mother and Father
joint legal custody, necessarily required a showing of a “substantial and material
change in circumstances.” See § 40-4-9.1(A) (“Joint custody shall not be awarded as
a substitute for an existing custody arrangement unless there has been a substantial
and material change in circumstances.”).
{24} 	We emphasize that facts, as always, are important, and we reach our decision
today based on the specific and unique circumstances of this case. We do not suggest
that all interim orders will require a showing of a “substantial and material change in
circumstances” but where, as in the present case, the district court’s order establishes
a durable custody arrangement with substantial provisions for the children’s relocation
with one parent out of state and no indication that the custody determination would

14
be revisited, any modification of that order must be accompanied by a showing of a
substantial and material change of circumstances. Cf. Lawson v. Lawson, 48,296, p.
5 (La. App. 2 Cir. 7/24/13), 121 So. 3d 769, 772 (explaining that, under the facts of
the case, a “judgment [that] was designated an ‘interim judgment’ . . . was a final
judgment as to every issue except the choice of school for the child” because the
stipulated interim judgment indicated that the only matter that would be revisited
would be the child’s school); Chandler v. Chandler, 48,891, pp. 5-6 (La. App. 2 Cir.
12/13/13), 132 So. 3d 413, 417 (concluding that, an interim judgment that was
consented to by both parents “was a final judgment as to every issue concerning
custody” and that in order for the nondomiciliary parent to obtain a change in custody,
she had “the burden of showing that there had been a material change in circumstances
since the interim decree was entered”).
{25} 	There is nothing in the stipulated interim order establishing that the custody
arrangement was temporary or subject to change. There was no set time frame during
which Mother’s custody of the children was to be reevaluated or for which the order
was set to expire. In contrast, the district court’s child support order, which was also
contained in the stipulated interim order, stated, “Until further [o]rder of this [c]ourt,
[Father] will pay child support to [Mother] in the amount of $949.81.” The language
“[u]ntil further [o]rder of this [c]ourt” demonstrates that the parties and district court
left open a future adjustment of child support. Cf. Lawson, 121 So. 3d at 772-73

15
(discussing whether a stipulated interim judgment was final as to choice of school and
custody). There is no such similar language with respect to the custody arrangement
contained in the stipulated interim order. Instead, the stipulated interim order
permitted Mother to relocate to another state with the children and did not indicate
that such relocation would be temporary or was subject to further order of the district
court. Allowing relocation with one parent, especially a relocation that occurs across
state lines and thus inherently involves removing children from their current home,
school, and community, and placing them in new ones, is a consequential decision,
which we conclude, under the facts of this case, created an “existing custody
arrangement.” Section 40-4-9.1(A). Accordingly, we hold that any modification or
change from the stipulated interim order required a showing of a “substantial and
material change in circumstances.” See Schuermann v. Schuermann, 1980-NMSC-
027, ¶¶ 4, 7, 94 N.M. 81, 607 P.2d 619 (stating that there is a strong presumption in
favor of the original custody arrangement, and the party seeking to alter the status quo
bears the burden of proving a change in circumstances).
{26} 	The district court in this case did not consider whether there was a substantial
and material change in circumstances affecting the best interests of the children
between the entry of the stipulated interim order and the custody hearing. Neither the
minute order nor the parenting plan contain any findings or conclusions in this regard,
nor is there any mention of Section 40-4-9.1 or its standards for determination of a

16
custodial re-assessment. Importantly, it appears the primary—if not sole—basis for
the change in custody was the district court’s determination that
[i]t is in the best interests of the minor children that they have a
significant relationship with . . . [F]ather and [Grandparents]. Said
relationship cannot be fostered if the children only see [Father] in the
summer time because his work requires him to be away from home for
significant periods of time in the summer due to fire season. [Mother]
can best maintain her relationship with the children during the summer
months since she is a teacher and will have summers off.
We conclude that the district court’s failure to consider whether a material change in
circumstances affecting the best interests of the children occurred and granting joint
legal custody constituted an abuse of discretion. Although we could reverse on this
basis alone, we take the opportunity to address Mother’s remaining arguments.
The District Court Abused Its Discretion in Granting Joint Custody Because It
Did Not Conduct a Best Interests Analysis
{27} 	Mother’s second argument on appeal is that the district court “erred in making
the change to the custodial arrangement without making specific findings that such a
change was in the children’s best interests.” Mother also argues that the district court
erred by not making specific findings concerning implementing protection for A.H.
On both these points, we agree with Mother.
{28} 	The guiding principle in child custody determinations is the best interests of the
child. See Jaramillo v. Jaramillo, 1991-NMSC-101, ¶ 13, 113 N.M. 57, 823 P.2d 299
(“The ‘best interests’ criterion . . . is the lodestar for determining a custody award,

1We note that the best interests analysis applies in all custody decisions. See id.
(stating that any custody dispute should be determined based on the best interests of
the child). While we recognize that there did not appear to be a best interests analysis
conducted with respect to the stipulated interim order, we stress that New Mexico law
gives preference to custody arrangements reached by the parties, unless the district
court finds that the agreement is contrary to the best interests of the child. See § 40-4-
9.1(D) (“In any case in which the parents agree to a form of custody, the court should
award custody consistent with the agreement unless the court determines that such
agreement is not in the best interests of the child.”). Because there was no finding that
the stipulated interim order, which was based on the parties’ agreement, was not in
the best interests of the children, we conclude that the order properly went into effect.
17
under both statute and case law in New Mexico[.]”); Schuermann, 1980-NMSC-027,
¶ 4 (“[T]he controlling inquiry of the [district] court in settling any custody dispute
is the best interests of the child.”). Pursuant to Section 40-4-9(A), “[i]n any case in
which a judgment or decree will be entered awarding the custody of a minor, the
district court shall, if the minor is under the age of fourteen, determine custody in
accordance with the best interests of the child.” 1 The statute further specifies that the
district court must “consider all relevant factors” in its best interests analysis,
including:
(1) 	the wishes of the child’s parent or parents as to his custody;
(2) 	the wishes of the child as to his custodian;
(3) 	the interaction and interrelationship of the child with his
parents, his siblings and any other person who may significantly affect
the child’s best interest;
(4) 	the child’s adjustment to his home, school and community;
and
(5) 	the mental and physical health of all individuals involved.

18
Id. Importantly, “[i]f the minor is fourteen years of age or older, the court shall
consider the desires of the minor as to with whom he wishes to live before awarding
custody of such minor.” Section 40-4-9(B).
{29} 	When a district court is determining whether joint custody should be awarded,
the district court is required to consider not only the factors discussed above under
Section 40-4-9(A), which are applicable to all child custody determinations, but
additional factors under Section 40-4-9.1(B). The additional factors are as follows:
(1) 	whether the child has established a close relationship with
each parent;
(2) 	whether each parent is capable of providing adequate care
for the child throughout each period of 	responsibility, including
arranging for the child’s care by others as needed;
(3) 	whether each parent is willing to accept all responsibilities
of parenting, including a willingness to accept care of the child at
specified times and to relinquish care to the other parent at specified times;
(4) 	whether the child can best maintain and strengthen a
relationship with both parents through predictable, frequent contact and
whether the child’s development will profit from such involvement and
influence from both parents;
(5) 	whether each parent is able to allow the other to provide
care without intrusion, that is, to respect the other’s parental rights and
responsibilities and right to privacy;
(6) 	the suitability of a parenting plan for the implementation of
joint custody, preferably, although not necessarily, one arrived at
through parental agreement;
(7) 	geographic distance between the parents’ residences;
(8) 	willingness or ability of the parents to communicate,
cooperate or agree on issues regarding the child’s needs; and
(9) 	whether a judicial adjudication has been made in a prior or
the present proceeding that either parent or other person seeking custody
has engaged in one or more acts of domestic abuse against the child, a
parent of the child or other household member. If a determination is

19
made that domestic abuse has occurred, the court shall set forth findings
that the custody or visitation ordered by the court adequately protects the
child, the abused parent or other household member.
Section 40-4-9.1(B).
{30} 	While the “best interests test is broad and vests the [district court] with
considerable discretion[, t]he exercise of discretion by the [district court] . . . must be
consistent with the evidence” and statutory requirements. Schuermann, 1980-NMSC-
027, ¶ 8 (internal quotation marks omitted); Newhouse v. Chavez, 1988-NMCA-110,
¶ 24, 108 N.M. 319, 772 P.2d 353 (setting forth the statutory requirement that a
district court must find a “substantial and material change in circumstances” in order
to modify an existing custody arrangement (internal quotation marks and citation
omitted)).
{31} 	Here, our review of the record reveals that the district court did not make any
specific findings related to any of the statutorily mandated factors it was required to
consider when making a custody determination. The district court made only vague
and broad statements in findings regarding the children’s best interests, stating that,
“[i]t is in the best interests of the minor children that they have a significant
relationship with . . . [F]ather and [Grandparents]” and that “[t]he best interests of the
children are the primary consideration for the [district c]ourt in making time sharing
decisions.” The district court insinuated that the best interests of the children involved
spending the “maximum amount of quality time” with each parent but did not

20
articulate any reason why that was in the children’s best interests to relocate them
again considering the evidence before it.
{32} 	Although we stress that the district court’s failure to consider any of the
statutory factors constituted error, the court’s neglect of some particularly relevant
factors illustrates the court’s abuse of discretion in this case. For instance, the district
court did not consider the wishes of any of the four minor children in making its
custody determination. See § 40-4-9(A)(2) (requiring the district court to consider the
children’s wishes as to their custody). And importantly, the district court did not
consider the wishes of A.H., who was fourteen years old at the time of the custody
hearing. See § 40-4-9(B) (“If the minor is fourteen years of age or older, the court
shall consider the desires of the minor as to with whom he wishes to live before
awarding custody of such minor.”). The wishes of the children, considering that they
had limited contact with Father for two years and had essentially been in Mother’s
sole custody since the child abuse incident, would certainly have been vital
information for the district court to take into account. Had the district court inquired
as to A.H.’s wishes, the record suggests that she likely would have indicated her desire
not to be in Father’s custody. In fact, A.H. testified at a show cause hearing that she
did not feel safe with Father because of his physically abusive behavior and the
episode in which he kicked her so hard he broke her leg. Because the district court did
not take into account A.H.’s wishes, as it was required to by statute, the district court

2We recognize that the parties did not offer any evidence at the December 2014
custody hearing indicating the children’s preference or desires as to their custody.
However, where the parties have not provided sufficient information for a court to
address the relevant statutory considerations, it is incumbent on the district court “to
elicit further information on its own motion.” See Jaramillo, 1991-NMSC-101, ¶ 27
(explaining that a court should take the initiative to seek relevant information when
it is not provided by the parties in a child custody dispute).
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placed her in the primary physical custody of a parent with whom she had not seen or
talked to for at least two years and with whom she did not feel safe, very probably
contrary to her best interests.2 See generally Jaramillo, 1991-NMSC-101, ¶ 14
(explaining that a parent has primary physical custody of a child if the child lives with
that parent for more than half of the time).
{33} 	Likewise, the district court did not discuss with any specificity how the
children’s interactions and interrelationships with Mother, Father, and Grandparents
affected their best interests in either the minute order or parenting plan. See § 40-4-
9(A)(3) (requiring the district court to consider “the interaction and interrelationship
of the child with his parents, his siblings and any other person who may significantly
affect the child’s best interest”); § 40-4-9.1(B)(1) (requiring the district court, in a
joint custody determination, to consider “whether the child has established a close
relationship with each parent”). Nor did the district court address whether the children
would benefit from increased contact with Father. See § 40-4-9.1(B)(4) (requiring the
district court to consider whether the children’s “development [would] profit from

22
[predictable and frequent] involvement and influence from both parents”). But
Father’s extended period of limited contact with the children and Mother’s role as sole
caretaker merited analysis with respect to how the children’s relationship with their
parents would be affected by any change to the status quo.
{34} 	The considerable need for stability and continuity in the children’s custody
arrangement and the damage that might occur from disrupting established patterns of
care, 	relationships, 	and 	emotional 	connections 	with 	Mother—the 	primary
caretaker—warranted the district court’s consideration. See Schuermann, 1980-
NMSC-027, ¶ 7 (explaining that, generally, a child’s best interests will not be served
by modifying a custody arrangement unless there has been a substantial change in
circumstances, for example, if the current custody situation “prevents the child from
receiving proper care or from enjoying stable family relationships”).
{35} 	Furthermore, the district court made no findings about how the children’s
relationship with Grandparents factored into the children’s best interests in light of the
fact that they had no contact with them for seven years and would allegedly be moving
to New Mexico to help care for them. See Newhouse, 1988-NMCA-110, ¶ 20
(concluding that the district court erred in not making any “findings addressing the
interests of the children in their relationship with [their] mother, their younger sibling
or their stepfather, or as to the interdependent relationships within this family,
although there was evidence from which the [district] court could have made such

3Of significance, we note that the district court’s order requiring all four
children to live with Father commencing with the start of the 2015-2016 school year
appears to conflict with his probation agreement, which expired in December 2015,
and stated that Father should not associate with any person detrimental to his
probation supervision, which may include any victim of his crimes.
23
findings[,]” and because there were no “findings to indicate that the [district] court
considered the effect of its judgment on these relationships” (citation omitted)).
{36} 	In addition, the district court did not consider the impact that moving the
children from Phoenix back to Ruidoso would have on them. See § 40-4-9(A)(4)
(requiring the district court to consider the “child’s adjustment to his home, school and
community”). The district court first granted the stipulated interim order, which
permitted Mother to relocate to Phoenix with the children in the summer of 2014 and
then subsequently ordered that the children move back to Ruidoso to live with Father
for the commencement of the 2015-2016 school year, after they had already
completed a year of school in Phoenix.3 The district court did not analyze whether
removing the children from their home, school, and community for the second time
in a year would have any negative impact on their best interests. As our Supreme
Court has observed, “[f]requent changes of schools and home locations, differences
in family structures and in parental personalities are difficult for children to adapt to
even under the best of circumstances.” Schuermann, 1980-NMSC-027, ¶ 7. The
district court failed to accord any weight to these considerations—the children’s need

24
for a stable environment and the impact of uprooting them once again not only from
their home, school, and community, but also from the primary care of Mother.
{37} 	Also, the evidence adduced at the custody hearing regarding the children’s
adjustment to their new private school in Phoenix indicated that the children were
excelling and doing better than they had at the public schools in Ruidoso. There was
evidence that the child with a learning disability was getting specialized attention and
A.H. was receiving individualized treatment for her special needs. Father even
admitted that the doctors in Phoenix were better suited for A.H. and that he had no
reason to believe that the children were not doing well in Phoenix. Had the district
court considered the children’s positive adjustment to their new home, school, and
community, as required by Section 40-4-9(A)(4), the evidence would have weighed
in favor of maintaining their current custody arrangement. See Schuermann, 1980-
NMSC-027, ¶ 7 (“Modifications in custody should not be granted too quickly.”).
{38} 	Finally, the district court neglected to examine the impact of placing A.H. in
Father’s primary physical custody. See § 40-4-9.1(B)(9) (requiring the district court
to consider “whether a judicial adjudication has been made in a prior or the present
proceeding that either parent or other person seeking custody has engaged in one or
more acts of domestic abuse against the child”). The district court heard testimony
regarding the incident in which Father broke A.H.’s leg, and the court took judicial
notice of the child abuse charge and the probation agreement. The district court also

25
noted the incident in its findings of fact. Nonetheless, the district court inexplicably
failed to factor either the probation agreement or the child abuse into any best interests
analysis. While we note that Father received a conditional discharge, and a conditional
discharge is not an adjudication of guilt under New Mexico law, see NMSA 1978, §
31-20-13(A) (1994), evidence at the custody hearing indicated that A.H. was
negatively impacted by the incident and had difficulties coping with it. The district
court, therefore, abused its discretion in not considering how the abuse and A.H.’s
relationship with Father affected her best interests. And significantly, the district court
failed to make any findings on whether granting Father primary physical custody
would adequately protect A.H. See § 40-4-9.1(B)(9) (“If a determination is made that
domestic abuse has occurred, the court shall set forth findings that the custody or
visitation ordered by the court adequately protects the child[.]”).
{39} 	To summarize, because the district court did not consider the statutorily
mandated factors relevant to a determination of the children’s best interests, the
district court abused its discretion in granting joint custody to Mother and Father and
in awarding primary physical custody to Father.

26
There Was Not Substantial Evidence Supporting the District Court’s Findings
{40} 	Turning next to the issue of substantial evidence, we conclude, for the ensuing
reasons, that there was not substantial evidence for the district court’s findings and
ultimate award of joint custody with primary physical custody being awarded to
Father. See Grant, 2005-NMCA-058, ¶ 13 (explaining that we will uphold a district
court’s custody findings if they are supported by substantial evidence).
{41} 	This Court will not reweigh evidence on appeal or substitute our judgment for
that of the district court. See Jeantete v. Jeantete, 1990-NMCA-138, ¶ 8, 111 N.M.
417, 806 P.2d 66 (“[T]he appellate court will not reweigh the findings of the [district]
court involving disputed testimony or inferences to be drawn therefrom, nor the
[district] court’s determination as to the credibility of the witnesses.”). The district
court’s findings, nevertheless, must be supported by “such relevant evidence that a
reasonable mind would find adequate to support a conclusion.” State v. Brown, 2014-
NMSC-038, ¶ 43, 338 P.3d 1276 (internal quotation marks and citation omitted).
{42} 	Here, the district court made numerous findings that were not supported by
substantial evidence, which apparently informed its custody determination. The
district court, for example, found that Mother had “engaged in a deliberate program
of alienation of the children from [Father and his] family,” but the undisputed
evidence was that Father had moved out of the family home after the child abuse
incident, and his limited contact with the children had started at that time. Morever,

27
CYFD had specifically required that Father stay out of the home for a period of time
after the incident, and the probation agreement required Father to refrain from
associating with persons detrimental to his probation supervision, which may include
any victim of his crimes. The evidence in the record, therefore, established that
Father’s alienation from the family was largely caused by his own actions, and not
Mother’s “deliberate program of alienation.”
{43} 	Similarly, the district court found that Mother “would not cooperate with
allowing calls from [Father,]” but Mother alleged that she had missed only one call
from Father during the time in question. Father himself acknowledged that his phone
calls with the children “were intermittent at best, sometimes due to my job, being in
remote areas [and] not having service.” The district court’s finding that Mother had
alienated relatives from the children was belied by its contrary finding that the
decision to cut off contact with Grandparents and other family members was a mutual
decision made by Father and Mother.
{44} 	We note as well the district court’s findings that the family residence was in a
state of disrepair and Mother “could never find time in her schedule to allow [Father]
to come in” and make the repairs and that Mother “did not make any improvements
to the home while [Father] was out of the house and the conditions were poor.” Yet,
the undisputed evidence showed that Father had left many projects unfinished when
he left the house due to the child abuse incident. Moreover, the district court

28
apparently did not give any weight to the reasons why Mother prevented Father from
returning to the home, such as Father’s anger issues and aggressive behavior.
{45} 	We are unpersuaded by any weight given by the district court that Mother had
refused to return excess child support and that Father had been forced to pay unpaid
utility bills. The court wholly failed to relate these findings to a best interests analysis
or indicate how this evidence supported its joint custody determination. See Jaramillo,
1991-NMSC-101, ¶ 13 (“The ‘best interests’ criterion . . . is the lodestar for
determining a custody award[.]”). Nothing in the minute order or parenting plan
establishes that it was not in the children’s best interests to remain in Mother’s
primary care in Phoenix. Indeed, our review of the record does not reveal any
evidence supporting the notion that it was in the children’s best interests to be
removed from their primary caretaker, their home, or their school in Phoenix. Lastly,
the district court also did not cite any facts supporting that it was in the children’s best
interests to have a relationship with Grandparents, who they barely knew and who
would allegedly be moving to New Mexico to help care for them.
{46} 	Considering the foregoing discussion—the district court’s findings and
subsequent child custody order giving Father primary physical custody during the
school year—was not supported by substantial evidence. See Grant, 2005-NMCA-
058, ¶ 13 (“[W]e will uphold the [district] court’s [custody] findings if supported by
substantial evidence.” (internal quotation marks and citation omitted)); see also

29
Brown, 2014-NMSC-038, ¶ 43 (“Substantial evidence is such relevant evidence that
a reasonable mind would find adequate to support a conclusion.” (internal quotation
marks and citation omitted)).
{47} 	We reverse the district court’s March 2015 parenting plan with the following
instructions. Because the children are in the middle of the school year and have been
living with Father for the past five months, we recognize the disruption our decision
will have on their lives yet again. The district court should consider appointing a
neutral guardian ad litem (GAL), pursuant to Rule 1-053.3(A) NMRA, which will
allow the GAL to work with the parents and the court to arrive at an orderly transition
plan from Father’s custody back to Mother. The district court is to hold a hearing
within forty-five days of the date of this opinion and should enter an order
implementing the plan no later than five business days after the hearing.
CONCLUSION
{48} 	For the reasons stated, we reverse and vacate the district court’s March 2015
parenting plan with instructions as set forth above.
{49} 	IT IS SO ORDERED.
_______________________________
LINDA M. VANZI, Chief Judge

WE CONCUR:

JONATHANB. SUTIN, Judge

MICHAEL E. VIGIL, Judge

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