Visitation With No Custody Order and No Established Paternity

Attorney Answer

No — with no established paternity and no court order, nothing legally requires you to send your children off alone with their father. But check one thing first: if you signed an acknowledgment of paternity, parentage may already be established and this answer changes.

The New Mexico Uniform Parentage Act, NMSA 1978 §§ 40-11A-101 to -903, governs how a legal parent-child relationship comes into existence. Under NMSA 1978 § 40-11A-201, that happens by acknowledgment, by presumption, or by adjudication in court. Until parentage is established and a custody or visitation order is entered, an alleged father holds no court-enforceable right to custody or visitation, and there is no order obligating you to hand the children over.

That is the legal position today, and it is not permanent. He can file a parentage case. Once he does, NMSA 1978 § 40-11A-624 lets the court enter temporary orders, including on custody and visitation, while the case is pending, and NMSA 1978 § 40-11A-636 is the order adjudicating parentage in which custody, guardianship and visitation get decided. From that point you are bound by whatever the court orders.

So the practical question is not whether you can say no this week. It is what a judge will make of how you handled it, if and when a case is filed.

What you can do

1. Find out whether an acknowledgment of paternity exists. If he signed one at the hospital, or if he is on the birth certificate, get the records — parentage may already be established and your position is different. 2. Decide what you are actually worried about and write it down with dates: who else is in the home, driving, substance use, past incidents. Vague discomfort carries little weight; specifics do. 3. Keep offering the contact you are comfortable with — supervised or public visits — and keep a short written log of every visit you allowed and every one you declined, with the reason. 4. Put arrangements in writing by text or email rather than by phone, so there is a record of what you offered. 5. If your concern is safety rather than comfort, report the specific conduct to law enforcement or child protective services at the time it happens, not months later. 6. Consider filing a parentage and custody case yourself rather than waiting. It puts the schedule, and any conditions on his time, in front of a judge on your terms and on your timing, and it is also how child support gets ordered.