Family Law & Disasters

New Mexico families face wildfire, flooding, severe storms, and evacuation risks. Family preparedness should include not only emergency supplies and keeping track of important documents, but also legal readiness related to custody, support, and safety during disasters. Here is some general information to help you prepare and understand the kinds of challenges families may face.

Preparing for a Disaster

Storing Important Documents

• Make copies of your important legal documents.
• Store the original documents somewhere safe, such as:
  • A safe deposit box at your bank;
  • A small fireproof, waterproof safe in your home.
  • Online in the cloud so you can access your documents from anywhere with your password. (See The Nonprofit's Guide to Managing Documents in the Cloud Effectively for more information.)
• Important documents to copy and store:
  • Driver’s licenses or other state-issued IDs.
  • Passports
  • Social Security cards.
  • Green cards, residency cards, or work authorizations.
  • Naturalization or citizenship documents.
  • Birth certificates.
  • Marriage and death certificates.
  • Adoption papers.
  • Child custody documents.
  • Divorce decrees.
  • Protective orders (for victims of domestic or partner violence).
  • Your child’s individualized education program (IEP) or Section 504 plan.

For some of these legal documents, you may be able to get a copy from the attorney who represented you or from the court that handled the legal issue.

 Also check out our information on where to Replace Lost Documents. 

How to Replace Lost Documents - LSC Disaster Website : LSC Disaster Website

Pre-Dispute Resolution

“Pre-Dispute Resolution” means creating a plan between parents or guardians to deal with legal situation you think might happen. 

Parents in joint custody/time-sharing agreements might create a plan for taking care of their children if the children need to leave their home because of an approaching natural disaster, or after a disaster due to damage to the home where the children reside. 

Planning ahead can make things easier and less stressful after a disaster. Plans could involve caretakers who are not parents, such as grandparents or trusted friends. Helps avoid personal disputes that could end up in court, making it easier for survivors to recover. 

Custody and Parenting Time Disruptions

Disasters often interrupt normal time-sharing schedules and can complicate joint custody agreements or time-sharing. You and your children might temporarily need to evacuate and/or live in a different place. 

This can lead to:

• Missed visitation or exchanges due to evacuation, road closures, or shelter-in-place orders. 
• Disputes over temporary custody if one parent cannot reach the child due to lack of electricity or phone reception. 
• Emergency relocation if a parent evacuates with the child across state or county lines. 
• Concerns about child safety such as exposure to hazards or lack of stable housing, etc.

The parent who has the child(ren) at the time of the disaster should make an honest effort to contact the other parent. 

Although courts generally prioritize the child’s best interest and safety in these scenarios, ensure that you are keeping records of all matters that have arisen during or after a disaster. You may need them as proof later. 

This recordkeeping should include:

• Dates and times you tried to contact the other parent.
• Information as to whether the other parent responded.
• How you communicated.
• What was said and/or written (text messages or emails)

If you cannot return your children to the other parent because of disaster-related conditions, take photos or video of the conditions to provide as proof to a Judge. 

Child Support and Alimony (Spousal Support)

A major disaster might affect a person’s income and ability to pay child support and alimony (spousal support).

Support payments can become difficult if there is loss of income for the payor, or if the systems that withhold/disburse those payments are delayed or down. 

There is also the possibility that the payor (person ordered to pay support) could use the disaster as an excuse to delay, stop, or lower the ordered payments. 

You may be able to file a Motion for Modification with the Court if:

• If you cannot work because of the disaster (but the payor is able to work). 
• If you are the payor and have lost all or some of your income.

The Court may agree to temporarily modify (reduce or raise) the ordered amount during disaster recovery. 

You may be able to file an enforcement action with the Court if:

• You know for certain that the payor (person ordered to pay support) is still getting paid for work, but they are failing to pay. 

Issues with Court Access

Keep in mind that the Courts themselves may be closed, delayed, shift to emergency or remote hearings only, and cause backlogs in family law dockets for months due to a major disaster.

Domestic Violence

After disasters, rates of domestic violence often increase because of stress, loss of housing, financial strain, and isolation. 

If you were a victim of domestic violence before a disaster struck, you may already have a protection order from the Court to keep your abuser away from you. 

It is important that you:

• Have your filed copy of the protection order with you at all times-if there is a need to contact law enforcement, you will have it available to provide the protection order quickly, so they know what the situation is. 
• Verify whether your protection order is enforceable across different states or territory-if you must relocate after a disaster this is important information to know. It may be safer to evacuate to a state/territory that you know can enforce the protection order. 
• Always call 911 if you believe you are in danger. 

Lost Protection Order

Contact the Court that issued the protection order and request another endorsed/filed copy. 

Education

After a disaster, your children may need to temporarily move to a different area because of damage to their home. How does this affect where your children will go to school?

Federal law guarantees certain educational rights for children who are homeless or displaced by a disaster. These rights apply to children who live in shelters, transitional housing, cars, campgrounds, hotels, and motels. They also apply to children who must temporarily live with other people because of a disaster. 

Federal law gives students the right to:

• Go back to the school they attended before the disaster- the school district must provide the student with transportation to and from school if a parent or guardian asks for it. 
• Enroll immediately into the public school where they’re living – the school must accept this enrollment even if the student doesn’t have certain documentation like proof of residency or immunization records. 
• Challenge a school’s decision if the school decides the student should not be allowed to enroll.
  • STUDENT: 
    • Should keep attending school during the challenge process/ 
    • Receive free school meals. 
    • Participate fully in the school’s activities, including after-school activities. 
    • Receive transportation to their new school. 
  • SCHOOL:
    • The school district must provide a written explanation of its objections to the students’ enrollment. 
    • Continue special education services – the new school district must provide special education services similar to the services of the old district. 

Court-Appointed Guardianship

When a parent or caregiver becomes missing, injured, or unable to care for someone after a disaster strikes, New Mexico Courts can appoint a temporary guardian to protect a child or an incapacitated adult. New Mexico has specific laws for this, and these laws allow courts to act fast when someone is in immediate danger, or waiting for a regular guardianship hearing would cause serious and immediate harm. (NMSA § 45-5-310)

Anyone concerned for the person’s safety can file/request guardianship:

• Relatives, family friends, neighbors, medical staff, emergency responders, social services workers or the Court can appoint a temporary guardian on its own if necessary. 

New Mexico law requires a court hearing on temporary guardianship:

• Within 10 business days after the motion is filed. 
• The alleged incapacitated person (of the child’s parents) must be notified; if giving notice would put the person in more danger, the Court can temporarily skip notice and act immediately. 
• If there is sworn evidence that immediate harm will occur before the 10-day hearing can be held, the court can act even faster (emergency no-notice appointment). This is important in disaster situations where a person may need immediate medical decisions or placement. 
• Temporary guardianship can last up to 30 day – the Court may extend it for up to an additional 60 days (total of 90 days-possibly go up to 180 days) if there is good cause. 

Temporary Guardianship Orders 

The Court gives the temporary guardian only the powers needed to prevent immediate harm. This may include:

• Marking urgent medical decisions.
• Arranging safe housing.
• Handling emergency care needs.
• Making safety decisions during crisis conditions.
• The Judge will specify exactly which powers the temporary guardian receives.

Kinship Guardianship 

For children in kinship care, New Mexico has separate law that allows temporary guardianship for up to 180 days, or until the case is decided, whichever comes first. (NMSA § 40-10B-7)

This is especially relevant after disasters when grandparents, relatives, or close family friends step in to help. 

Power of Attorney (POA)

A “Power of Attorney” is a legal document that gives someone the power to make decisions on behalf of another person. 

During disasters, a POA arrangement can help protect your money, property, and children if you become incapacitated (unable to make decisions for yourself). (See the Court-Appointed Guardianship section). 

The person you give a POA to doesn’t need to be a lawyer or financial expert. The best choice is someone you trust. Many people choose a family member.