Parental Rights in New Mexico

At Risk

New Mexico does not have a state statute that explicitly defines and protects parental rights as fundamental rights.

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At High Risk!

Precedent from the New Mexico Court of Appeals favors best interest of the child without affording parents the protection of strict scrutiny standard.

• In re Guardianship of Victoria R., 201 P.3d 169, 173, 177 (N.M. Ct. App. 2008), the NM Court of Appeals affirmed a trial court's decision to award guardianship of a child to "psychological parents," to whom the mother had voluntarily given placement of the child, because evidence of potential psychological harm to the child overcame the presumption in favor of the biological parent, id. at 177; the court did not employ strict scrutiny, noting that "only Justice Thomas, in a concurring opinion, relied upon a fundamental rights-strict scrutiny analysis" and that "some authorities, noting that only Justice Thomas expressly relied upon textbook fundamental rights-strict scrutiny analysis, have read Troxel as moving away from the rigid strict scrutiny mode of analysis of state legislation that impinges on parents' control over the upbringing of their children," (id. at 173 n. 4).
• Williams v. Williams, 50 P.3d 194, 200 (N.M. Ct. App. 2002) affirmed an order of visitation, over the objection of the parents, based solely on statutory factors including the best-interest of the child with no apparent presumption in favor of the parents' decision; "We agree with Parents that, as a general proposition, Troxel does require courts to give special consideration to the wishes of parents, and appropriately so. However, we do not read Troxel as giving parents the ultimate veto on visitation in every instance. Troxel may have altered, but it did not eradicate, the kind of balancing process that normally occurs in visitation decisions.”