(a) Except as otherwise provided in Section 204 or by other law of this state, if a court of this state has jurisdiction under the Uniform Child-Custody Jurisdiction and Enforcement Act because a person seeking to invoke its jurisdiction has engaged in unjustifiable conduct, the court shall decline to exercise its jurisdiction unless:
(1) the parents and all persons acting as parents have acquiesced in the exercise of jurisdiction;
(2) a court of the state otherwise having jurisdiction under Sections 201 through 203 determines that this state is a more appropriate forum under Section 207; or
(3) no court of any other state would have jurisdiction under the criteria specified in Sections 201 through 203.
(b) If a court of this state declines to exercise its jurisdiction pursuant to subsection (a), it may fashion an appropriate remedy to ensure the safety of the child and prevent a repetition of the unjustifiable conduct, including staying the proceeding until a child-custody proceeding is commenced in a court having jurisdiction under Sections 201 through 203.
(c) If a court dismisses a petition or stays a proceeding because it declines to exercise its jurisdiction pursuant to subsection (a), it shall assess against the party seeking to invoke its jurisdiction necessary and reasonable expenses, including costs, communication expenses, attorney's fees, investigative fees, expenses for witnesses, travel expenses and child care expenses during the course of the proceedings, unless the party from whom fees are sought establishes that the assessment would be clearly inappropriate. The court may not assess fees, costs or expenses against this state unless authorized by law other than the Uniform Child-Custody Jurisdiction and Enforcement Act.
History: Laws 2001, ch. 114, § 208.
ANNOTATIONSCertain factors must be considered when declining jurisdiction. — In a domestic relations case, where petitioner and respondent were in a domestic relationship and decided to raise a child together, and where respondent was artificially inseminated by an anonymous donor and gave birth to child, and where petitioner initiated an action in district court to establish parentage and determine custody and timesharing with regard to child when the domestic relationship began to fall apart, and where respondent filed an objection to the district court's jurisdiction over the case after respondent and child left the state of New Mexico, the district court erred in declining jurisdiction, because it was undisputed that child and respondent lived in New Mexico for at least six consecutive months immediately before the commencement of a child custody proceeding, and therefore at the time the petition was filed, New Mexico was child's home state and the district court had jurisdiction to make the initial child custody determination, and declining jurisdiction would only have been appropriate if the district court determined that another state was a more appropriate forum. Tomlinson v. Weatherford, 2017-NMCA-055.
Attorneys' fees awardable if forum found inconvenient, even if not clearly inappropriate. — Where trial court declines jurisdiction under this section can be the basis for awarding attorney fees on appeal even though trial court did not find New Mexico a clearly inappropriate forum. Hester v. Hester, 1984-NMCA-002, 100 N.M. 773, 676 P.2d 1338.
Am. Jur. 2d, A.L.R. and C.J.S. references. — Kidnapping or related offense by taking or removing of child by or under authority of parent or one in loco parentis, 20 A.L.R.4th 823.