CARRIE J. TOMLINSON, Petitioner-Appellant,
DANA M. WEATHERFORD, Respondent-Appellee.
FROM THE DISTRICT COURT OF GRANT COUNTY Henry R. Quintero,
I. Friedman Legal Group, P.C. Jessica C. Roth for Appellant
Dietzel, Perkins, & Wallace, P.C. Cathryn L. Wallace for
MONICA ZAMORA, Judge
In this domestic relations case, the level of animosity
between the parties, their deliberate actions and inactions,
and the delays in the judicial system have complicated the
situation to the point that the Child (R.W.) has been lost in
the process. Petitioner Carrie Tomlinson (Petitioner) appeals
the district court's decision to decline jurisdiction
over her action to determine parentage, child custody, and
timesharing with regard to a child born to her former
partner, Dana Weatherford (Respondent). Petitioner argues
that the district court applied the incorrect standard in
determining jurisdiction and challenges several of the
district court's findings. Petitioner also argues that
the district court violated her right to due process by
failing to address her requests for interim visitation and
that the district court's ruling violated her right to
While this appeal was pending, Petitioner filed a motion for
review of the district court's action on an application
for stay and for injunction pending appeal as well as a
petition for writ of error, or in the alternative, motion for
review. Petitioner requested this Court to review the
district court's order denying her motion to stay the
enforcement of its judgment pending appeal and order
visitation and communication between herself and R.W. She
also requested the appointment of a guardian ad litem. On
September 9, 2015, this Court issued an order directing the
district court to hold a hearing on Petitioner's motion
and the issue of whether to order visitation and
communication between Petitioner and R.W. within twenty-one
days of the order. Alternatively, if the district court
decided to appoint a guardian ad litem (GAL), the district
court was required to determine an expedited time frame for
the GAL to complete his or her work and then hold a hearing
to address the visitation and communication issues. It was
not until December 3, 2015, that the district court held the
hearing to appoint the GAL. He identified and appointed the
GAL without input from the parties. Petitioner alleges that
the GAL relied on a "sham" bonding study when
making the recommendation with respect to her request for
visitation and communication with R.W. According to
Petitioner, the district court accepted the GAL's
recommendation, even though the study considered only the
degree of bonding between Respondent and R.W., and Petitioner
was not given the opportunity to examine the GAL about her
recommendations or any bias she might have. For the reasons
that follow, we reverse and remand for further proceedings.
Petitioner and Respondent were in a domestic relationship and
decided to have and raise a child together. Respondent was
artificially inseminated by an anonymous donor and gave birth
to R.W., in Oklahoma in April 2007. In June 2007 an Oklahoma
district court appointed Petitioner and Respondent
co-guardians of R.W., pursuant to their joint request. In
September 2008, the couple and R.W. moved from Oklahoma to
New Mexico. From the time of R.W.'s birth until May 2009,
she lived with Petitioner and Respondent. In 2009 Petitioner
left the home but continued to share parenting
responsibilities with Respondent until September 2012, when
Respondent cut off contact between R.W. and Petitioner.
Subsequently, Respondent sought an order of protection from
domestic violence based on alleged harassment by Petitioner.
The district court determined that no domestic violence had
occurred. However, the parties stipulated to mutual
restraint. On May 20, 2013, Petitioner initiated this action
to establish parentage and determine custody and timesharing
with regard to R.W.
Shortly after the petition was filed, Respondent left the
state with R.W. Respondent could not be located and was not
served with process before she left the state. By July 2013
Respondent established residency in Oklahoma. In August 2013
Respondent filed an objection to the district court's
jurisdiction over the case.
In December 2013 the district court held a hearing on the
issue of jurisdiction. During that hearing, Respondent
informed the district court that a hearing was scheduled the
same month in Oklahoma pertaining to the order granting
co-guardianship that was entered in Oklahoma in 2007.
Apparently, Respondent had filed a change of venue in the
guardianship case. Both Petitioner and the district court
were under the impression that Respondent intended to have
the guardianship revoked. The district court conferred with
the Oklahoma court, then stayed proceedings in the present
case, pending a final decision in the Oklahoma guardianship.
However, after the stay in this case was issued, Respondent
did not pursue revocation of the guardianship in Oklahoma.
Approximately eleven months after the stay in this case was
issued, the Oklahoma court terminated the guardianship over
After the termination of the guardianship, Petitioner again
moved to determine parentage and timesharing in this case.
Respondent once again objected to the district court's
jurisdiction, arguing that New Mexico was an inconvenient
forum and that it would not be in the best interests of R.W.
for the district court to exercise its jurisdiction over
Petitioner's claim. The district court determined that it
was in the best interests of R.W. that "any disputes be
brought and heard in Oklahoma."
On appeal, Petitioner argues that (1) New Mexico has
jurisdiction over the action pursuant to the Uniform Child
Custody Jurisdiction and Enforcement Act (the Act), NMSA
1978, §§ 40-10A-101 to -403 (2001); (2) the
district court erred in making findings on the merits of her
parentage and child custody claim because the sole issue
before the court was subject matter jurisdiction; (3) the
district court denied her the opportunity to maintain her
relationship with R.W. and violated due process by failing to
address her repeated requests for interim visitation; and (4)
the district court's rulings violated equal protection.
We will address these arguments in turn. We first consider
the question of jurisdiction under the Act.
District Court Has ...