Challenging a Custody Order After Improper Service of Papers

Attorney Answer

You can likely ask the same court to set aside the custody judgment because you were never properly served — but you need to act now rather than wait.

New Mexico's rule on relief from judgment lets a party move to set aside a final judgment or order for reasons including mistake, excusable neglect, fraud, or because the judgment is void — for example, one entered without proper service (Rules of Civil Procedure for the District Courts § 1-060). Grounds like excusable neglect generally must be raised within a reasonable time, often within about a year of the judgment; a judgment that is void for defective service can sometimes be challenged later, but you should not rely on that and should move quickly regardless. A direct appeal of the original custody order is likely no longer available given how much time has passed, so the realistic path is a motion to reopen within the existing case, not a new appeal.

What you can do:

1. Confirm whether the papers found in your mother's closet were the only notice about the court date, or whether there was any other mail, email, or phone communication you may have missed — this shapes how the improper-service argument is presented.

2. Gather proof of when and how the papers surfaced, and any information about who was actually served in your place.

3. File a motion under Rule 1-060 to set aside the custody judgment based on improper service.

4. Have a local family law attorney review the case immediately to confirm which deadline applies to your specific grounds.

⏱ Time limits apply. Motions to set aside a judgment under Rule 1-060 are time-sensitive, with some grounds bounded around one year and others requiring action within a reasonable time. Have a local attorney review your case promptly to confirm the exact deadline that applies.