Enforcing a Custody Order the Court Says Does Not Exist

Attorney Answer

If the 2017 order exists, the judge's 2022 statement does not erase it — but you have to put the order itself back in front of the court, and the vehicle for that is a motion to correct the record, not a new custody case.

Relief from judgments and orders in New Mexico district court is governed by Rule 1-060 NMRA. The distinction between its two paragraphs decides which door is still open to you. Paragraph A covers clerical mistakes and errors arising from oversight or omission in the record, and those can be corrected at any time, either on motion or by the court on its own initiative. That is the right vehicle when an order exists but was mis-docketed, never reduced to writing, or lost out of the file. Paragraph B covers substantive relief from a final order on enumerated grounds — but motions under Paragraph B grounds (1) through (3) must be brought within one year of the judgment. On your timeline, a 2017 order and a 2022 ruling, that one-year window closed long ago. So your motion needs to be a Paragraph A record-correction motion, not a Paragraph B attack.

Why that matters substantively: NMSA 1978 § 40-4-9.1(A) bars a court from substituting or terminating an existing custody arrangement unless there has been a substantial and material change in circumstances since entry of the prior order that affects the welfare of the child. Once the 2017 order is back in the record where it belongs, that is the rule that keeps it operative. It does not go away because a judge in 2022 could not find it in the file.

What you can do

1. Go to the district court clerk in the county where your case was filed and request a certified copy of every order entered in 2017. Ask specifically for the register of actions or docket sheet, not just the file — a minute entry can show a ruling that never made it into the file as a written order. 2. If the clerk finds a written 2017 order, file a motion under Rule 1-060(A) to correct the record, attach the certified copy, and ask the court to confirm on the record that the order stands. 3. If the 2017 ruling was made orally and never reduced to writing, order the transcript of that 2017 hearing from the court monitor or reporter, and ask the court under Rule 1-060(A) to enter a written order now reflecting what was decided then. 4. In the same motion, state that under NMSA 1978 § 40-4-9.1(A) the existing arrangement remains in force unless someone shows a substantial and material change in circumstances affecting the child's welfare. 5. Do not frame this as a request to change custody. Framing it that way puts the burden of showing changed circumstances on you, when your position is that the 2017 order already governs. 6. Bring your own copy of the 2017 order, any file-stamped copy you were given, and any correspondence referring to it.

⏱ Time limits apply. Rule 1-060 NMRA sets no deadline for correcting a clerical or record error under Paragraph A, but its Paragraph B(1) through (3) grounds must be raised within one year of the judgment, and challenging the 2022 ruling itself would have carried a much shorter appeal deadline. Which of these is still available to you depends on the exact dates in your court file.