§ RULE 1-053.3. GUARDIANS AD LITEM; CONTESTED CUSTODY APPOINTMENTS
RULE 1-053.3. GUARDIANS AD LITEM; CONTESTED CUSTODY APPOINTMENTS
A. Appointment. In any proceeding when custody of a minor child is contested under Chapter 40, NMSA 1978 the court may appoint a guardian ad litem on the court's motion or upon the motion of any party, as set forth in this rule. The guardian ad litem serves as an arm of the court and assists the court in discharging its duty to adjudicate the child's best interests.
B. Order. The appointment order shall be written in substantial conformity with the form, if any, approved by the Supreme Court. The order shall specify the guardian ad litem's role, tasks, duties, any limitations, the reasons for the appointment and the duration of the appointment.
C. Designation. The guardian ad litem appointed under this rule is a “best interests attorney” who shall provide independent services to protect the child's best interests without being bound by the child's or either party's directive or objectives and who shall make findings and recommendations. This rule shall not limit the court's ability to appoint an expert pursuant to Rule 11-706 NMRA or a special master pursuant to Rule 1-053 NMRA.
D. Prohibited Delegation. In no event shall the court delegate the ultimate determination of the child's best interests, unless the parties have agreed to arbitrate such issues under Section 40-4-7.2 NMSA 1978.
E. Factors. In determining whether an appointment will be made, the court may consider relevant factors, including:
(1) the wishes of the parents or other parties;
(2) the age of the child;
(3) the contentiousness of the parties or other dynamics affecting the child, including past or present mental health issues of a party or a household member;
(4) the extent to which the appointment will assist the court by providing factual information useful to the court in determining the child's best interest;
(5) the ability of the parties to pay;
(6) the views or concerns expressed by the child;
(7) the requests for extraordinary remedies, including supervised visitation;
(8) a proposed relocation;
(9) the likelihood that the child will be called as a witness or be examined by the court in chambers;
(10) past or present substance abuse, sexual abuse, emotional abuse or domestic abuse by, or to, a party, the child or a household member;
(11) disputes as to paternity;
(12) interference, or threatened interference, with custody or parenting time, including abduction;
(13) special physical, educational or mental health needs of the child;
(14) inappropriate adult influence on, or manipulation of, the child;
(15) the extent to which the litigation process is harmful to the child;
(16) whether the child's needs can be protected through the limitation of the appointment to a specific issue; and
(17) any other relevant factors.
F. Duties. The guardian ad litem shall have the following duties, in addition to other duties stated in the order:
(1) if the child is age six (6) or older, interviewing the child face-to-face outside the presence of both parents and counsel; interviewing both parents in conformity with Rule 16-402 NMRA; interviewing any therapist for the child after obtaining the necessary authorization for the release of information; interviewing other persons at the guardian ad litem's or court's discretion after obtaining any necessary authorizations for the release of information and reviewing relevant records;
(2) determining the child's wishes, if appropriate;
(3) serving a written report of investigation and separate written recommendations to all parties and counsel at least ten (10) days before the recommendations are filed with the court, except in the case of emergency; and
(4) filing the recommendations with the court.
G. Guardian ad litem Recommendations.
(1) If the parties agree to adopt the guardian ad litem recommendations, they shall submit a stipulated order adopting the recommendations within ten (10) days after the recommendations are filed.
(2) If one or both of the parties does not agree to adopt the recommendations, such party may file objections to the recommendations and a request for hearing on the objections within ten (10) days after the recommendations are filed. Objections must identify the specific portions of the guardian ad litem's recommendations to which the party objects. The court will set a hearing on the objections.
(3) If no party files timely objections, the court shall enter an appropriate order.
H. Duties to the Child. A guardian ad litem, in a manner appropriate to the child's developmental level, shall:
(1) explain the role of the guardian ad litem to the child;
(2) inform the child that, in providing assistance to the court, the guardian ad litem may use information that the child gives to the guardian ad litem;
(3) keep the child informed of the nature and status of the proceeding;
(4) review and accept or decline to accept any proposed stipulation for an order affecting the child and explain to the court the basis for any opposition; and
(5) consider the child's objectives in determining what to recommend.
I. Confidential Communications. A guardian ad litem shall not disclose a child's confidential communications with the guardian ad litem except as permitted by the Rules of Professional Conduct for attorneys as if the child were in an attorney-client relationship with the guardian ad litem, but the guardian ad litem may use the child's communications for the purpose of performing the duties of a guardian ad litem without disclosing the communications.
J. Witnesses. The guardian ad litem may call and examine witnesses.
K. Fees and Costs. The order shall state the guardian ad litem's authorized retainer and hourly rate, provide for itemized monthly statements to the parties, and designate the manner in which the parties bear the fees and costs. Either party or the guardian ad litem may request a hearing on the guardian ad litem fees and costs.