Co-Parent Hiding Your Child Despite Shared Custody Rights

Attorney Answer

No — if a custody order exists and your ex is concealing your child to cut you out of it, that is not merely a family dispute. It can be the crime of custodial interference. But the order is what makes it real, so the first thing to establish is exactly what your order says.

NMSA 1978 § 30-4-4 draws a line that decides your situation. Subsection (B) makes it custodial interference for a person who has a right to custody to maliciously take, detain, conceal or entice away a child, or to fail to return the child without good cause, with intent to deprive another person who also has a right to custody. Subsection (C) covers unlawful interference by a person who has no right to custody. Because you say you both hold custody rights, subsection (B) is the provision that fits your facts.

On leaving the state: moving is not automatically a crime by itself, and whether your ex may relocate depends on what your order says about relocation and notice. What can be criminal is concealing the child, or refusing to return the child, with the intent to deprive you of your custody rights — and doing that across state lines does not make it lawful; it usually makes it more serious.

A practical warning that cuts the other way. Do not go get the child yourself, and do not withhold the child later to even the score. Subsection (B) applies to a parent who has custody rights just as much as it applies to your ex, and self-help retrieval is how a parent in the right ends up charged.

What you can do

1. Get a certified copy of your custody order from the district court clerk and read exactly what it says about the schedule, about notice of address changes, and about relocation. 2. Document the concealment: dates you were denied contact, unanswered calls and messages, and the last date you knew where they were. Keep the messages themselves, not summaries. 3. Take the certified order to your local law enforcement agency and ask them to make a report. Some agencies will assist with a civil standby or with a welfare check when there is an order to read; a report also creates the record. 4. File a motion in your existing custody case to enforce the order and for an order to show cause, and ask the court to order the child's address disclosed and to set makeup time. 5. If you believe they have left New Mexico, tell your attorney immediately. Which state's court has authority over custody depends on where the child has been living and for how long, and delay can shift it. 6. If the child may be in danger, call law enforcement and report it as an emergency rather than filing a motion and waiting. 7. Keep exercising every bit of contact you are entitled to, and keep a log. A record of you trying, and them refusing, is what a judge acts on.