New Mexico

New Mexico Emergency Motions to Return Children After Unlawful Removal

⚠️ Disclaimer

I am not an attorney and this page does not constitute legal advice. These resources are compiled for informational and educational purposes only, especially for families who: - Do not have access to an attorney, or - Have been assigned one who refuses to advocate for them.

If your children have been removed and you believe it was unlawful, these tools are designed to help you understand what options may be available to challenge the removal and demand accountability. You should consult with a qualified legal professional when possible.

Emergency Motion to Return Custody of Children to Parent

Purpose:

This motion is used when a parent seeks to immediately regain custody of their children after they were removed: - Without a warrant - Without exigent circumstances - Or when the underlying criminal allegations are dismissed or disproven

When to file

· The police or CYFD entered your home without a warrant AND without valid, immediate danger present (exigent circumstances)

· You were arrested but not charged, or the charges were dismissed

· The neglect/abuse case is based on false allegations or procedural misconduct

· There is no current danger to the children, and you can provide a safe home

✊ Legal Grounds in New Mexico

• Fourth Amendment (U.S. Constitution)

Protects your home and family from unlawful search and seizure

• Fourteenth Amendment (U.S. Constitution)

Guarantees your fundamental right to parent and procedural due process

• NMSA 1978, §32A-4-6 (Emergency Custody by Law Enforcement)

Law enforcement may take custody of a child only if there is probable cause that the child is suffering from abuse or neglect AND removal is necessary to prevent imminent harm.

• NMSA 1978, §32A-4-7 (Judicial Review)

Requires a custody hearing within 72 hours of removal to determine whether custody should continue. You can challenge the basis of the removal at this hearing or file a motion in advance.

• Statute of Limitations on Reasonable Cause

If evidence supporting removal is no longer valid (e.g., charges dismissed), the continued removal becomes a due process violation.

Motion Title Example:

Motion for Immediate Return of Minor Children and to Vacate Temporary Custody Order Based on Unlawful Seizure and Dismissed Allegations

What to Include in Your Motion:

1. Heading with the court name, case number, and party names (you as Respondent)

2. Title of the Motion (see above)

3. Statement of Facts

o Date of removal

o Who removed the children

o Whether there was a warrant

o Any charges filed and their outcome (e.g., dismissed)

o Any evidence that disproves neglect or abuse

4. Legal Argument

o Cite 4th and 14th Amendments

o Cite NMSA §32A-4-6 and §32A-4-7

o Explain how the removal was not justified by imminent danger

5. Relief Requested

o That the court vacate the custody order

o That the court return custody immediately to the parent

o That the court schedule a hearing within 72 hours if not already held

6. Attachments (if available):

o Dismissal order of criminal charges

o Photos or documentation showing safe conditions

o Witness letters

o CPS visit logs or police reports

Common Violations You Can Challenge

· No warrant and no emergency

· False statements made to obtain custody order

· Delayed court hearing beyond 72 hours

· Parent denied access to children or legal documents

· No opportunity to speak before custody was granted

Downloads for New Mexico

Motion templates (.Docx)

Information Documents

Coming Soon to New Mexico Downloads

• 📄 Motion to Strike Hearsay Evidence

• 📄 Motion to Challenge Shelter Care Order

• 📄 Motion to Disqualify Assigned Attorney

• 📄 Affidavit Template to Support Parent Testimony

• 📄 State-Specific Guide: Understanding the CYFD Investigation Process

• 📄 Step-by-Step Walkthrough: Filing Motions in NM Family Court

• 📄 Parent Journal Template (to track caseworker visits, calls, etc.)

• 📄 Printable Rights Reminder for Court Appearances

Steps to get custody dropped if criminal charges were not indicted

The Goal Of This Page

This is just the first of many templates and state-specific breakdowns we will publish, starting here in New Mexico. If this helped you, or you have suggestions or edits, please share them.

Coming next: - Template for the actual motion (in Word/Google Doc format) - Sample objections to shelter hearings - Discovery demand templates - State-by-state rights guides

To help parents assert their rights using motions that: - Most public defenders won’t file - Are often unavailable online in plain English - Can make or break reunification in the early stages