## Facts

- After a roughly 15-year marriage, the parties divorced and disputed custody of three minor children (two preteen daughters and a preschool son).
- During the marriage, father was the primary financial provider, and mother was the primary day-to-day caregiver; both had been actively involved in parenting before the breakup.
- Pending the dissolution, mother had primary physical custody.
- Mother began a relationship with her maternal uncle and planned to marry him and relocate with the children to California.
- New Mexico law treated an uncle–niece marriage as incestuous and void and criminalized uncle–niece sexual relations.
- California law treated an uncle–niece marriage as invalid, but its incest statute potentially did not criminalize the relationship if the marriage was valid where celebrated.
- After the court indicated it would award primary custody to mother, but before the written custody order, mother and her uncle married in Costa Rica, where the marriage was valid.
- The trial court found potential future social difficulties for the children arising from the relationship, but found serious harm to the children speculative at the time.
- The trial court found father had a history of depression and, at the time of trial, was not well able to provide the emotional support and guidance the children needed.

## Issues

1. Whether the district court impermissibly conditioned a custody award on mother’s Costa Rica marriage to her uncle, contrary to New Mexico’s strong public policy against incestuous marriages.
2. Whether the district court misapplied the best-interests standard by placing undue weight on the anticipated legal treatment of the marriage in California rather than the children’s welfare.

## Decision

- The New Mexico Court of Appeals affirmed the award of primary physical custody to mother.
- The court held the trial court did not commit reversible error by considering the Costa Rica marriage and the practical legal setting of the proposed California relocation.
- The court concluded the custody determination was supported by evidence and was not an abuse of discretion.

## Legal Principles

- Child custody determinations are governed by the best interests of the child; trial courts may consider a broad range of factors affecting the child’s welfare, including parental psychological functioning and likely future living arrangements.
- Appellate review of custody awards is deferential; reversal requires an abuse of discretion or lack of substantial evidentiary support.
- A forum state generally recognizes marriages valid where celebrated unless recognition would clearly violate a strong public policy; however, in a custody dispute, a court may treat a foreign-valid marriage as a factual circumstance bearing on the child’s environment without thereby validating the marriage under forum domestic-relations law.
- Strong state public policy against incestuous marriages does not automatically bar a trial court from considering the practical consequences of a foreign-valid marriage occurring and being lived out in another jurisdiction when evaluating custody.

## Conclusion

The court affirmed primary physical custody to the mother, holding that the trial court properly applied the best-interests standard and could account for the mother’s foreign-valid uncle–niece marriage and intended relocation as part of assessing the children’s expected circumstances, without violating New Mexico public policy or abusing its discretion.


Leszinske v. Poole, 798 P.2d 1049 (N.M. Ct. App. 1990)