I N THE COURT OF APPEALS OF THE STATE OF NEW MEXICO 1
O pinion Number: ______________ 2 Filing Date: September 11, 2024 3
No. A -1- CA

- 40864 4
CO RINNE R. FLORES , 5
P e titioner

- Appell ant , 6

v. 7
K ERRI MCLAIN and PATRICK FLORES , 8
R espondents

- Appellees

. 9
AP PEAL FROM THE DISTRICT COURT OF DOÑA ANA C OUNTY 10 Mary W. Rosner, District Court Judge 11 McBry de Law LLC 12 Deian McBryde 13 Albuquerque, NM 14
L. He len Bennett, PC 15 L. He len Bennett 16 Albuquerque, NM 17
f or Appellant 18
Camu ñez Law Firm, P.C. 19 Roseanne Camuñez 20 Las Cruces, NM 21
R odey, Dickason, Sloan, Akin & Robb, P.A. 22 Edward Ricco 23 Albuquerque, NM 24
f or Appellee Kerri McLain 25 The slip opinion is the first version of an opinion released by the Clerk of the Court of Appeals. Once an opinion is selected for publication by the Court, it is assigned a vendor-neutral citation by the Clerk of the Court for compliance with Rule 23-112 NMRA, authenticated and formally published. The slip opinion may contain deviations from the formal authenticated opinion.Patrick Flores 1 Silver City, NM 2 Pro Se Appellee 3OPINION 1 WRAY, Judge. 2

{1} Corrine Flores (Grandmother) petitioned for visitation privileges with her 3 granddaughter (Child) under the Grandparent’s Visitation Privileges Act ( the 4 GVPA), NMSA 1978, §§ 40

- 9

- 1 to

- 4 (1993, as amended through 1999). While the 5 GVPA proceeding was pending, a no

- contact order (the original no

- contact order) 6 that had been issued in a separate proceeding under the Kinship Guardianship Act 7 (the KGA), NMSA 1978, §§ 40

- 10B

- 1 to

- 15 (2001, as amended through 2023) , was 8 clarified to prohibit contact between Grandmother and Child (the revised no

- contact 9 order). The district court determined that the revised no

- contact order precluded the 10 GVPA petition as a matter of law. Grandmother appeals. We hold that the revised 11

no - contact order was a binding but modifiable order entered in a family proceeding 12 in which the district court had ongoing jurisdiction. As such, the revised no

- contact 13 order had a qualified preclusive effect and could be modified on a showing of 14 changed circumstances. See Cherpelis v. Cherpelis , 1996

- NMCA

- 037, ¶ 18, 121 15 N.M. 500, 914 P.2d 637. T he district c ourt in the present case had jurisdiction to 16 consider both Grandmother’s legally sufficient petition for visitation and the 17 evidence regarding modification of the revised no

- contact order but instead 18 dismissed the GVPA petition as precluded as a matter of law. As we explain, we 19
reverse and remand. 202 BACKGROUND 1

{ 2 } Kerri McLain (Mother) gave birth to Child in June 2016. Grandmother 2 petitioned in February 2018 to be appointed a kinship guardian under the KGA. The 3 GVPA proceeding before us is rooted in the KGA proceeding, and so we begin our 4 review with the few undisputed facts in the GVPA record that sketch the outline of 5 the KGA proceeding. 1 6

{ 3 } The district court designated Grandmother as Child’s kinship guardian in 7 October 2018. In December 2019, the district court appointed a guardian ad litem 8 (GAL), who filed a motion to terminate the kinship guardianship in May 2020. The 9 district court granted the motion and terminated the kinship guardianship on May 10

1 Grandmother bore the burden as the party bringing the appeal “t o bring up a record sufficient for review of the issues

. . . she raise s on appeal .” See Sedillo v. N.M. Dep’t of Pub. Safety , 2007

- NMCA

- 002, ¶ 21, 140 N.M. 858, 149 P.3d 955 (internal quotation marks and citation omitted). T he parties appear to agree that th is Court may take judicial notice to some degree of the documents filed in the KGA proceeding, but disagree as to the extent of any such notice. M indful that judicial notice of other judicial proceedings is not the general rule , we decline to apply any exception to this general rule to documents or facts that the parties have not designated as part of the record

. See State v. Garcia , 2023

- NMCA

- 010, ¶ 26, 523 P.3d 650, cert. quashed (S

- 1

- SC

- 39668, March 4, 2024); see also Rule 11

- 201(B)(1) , (2) NMRA (permitting judicial notice of adjudicative facts that are “generally known,” the accuracy of which can be “readily determined from sources whose accuracy cannot reasonably be questioned”). Should the factual record be deficient, “we will indulge in every presumption in support of the correctness of the [district] court’s decision.” Sedillo , 2007

- NMCA

- 002, ¶ 21 (internal quotation marks and citation omitted).3 29, 2020. Subsequently, in February 2021 the district court entered the original no

1 contact order, which included the following language: 2 The [c]ourt adopts the GAL recommendations to include a no 3 contact order as follows: 4

a. [Grandmother] is not allowed to contact [Mother], or be 5 near [Mother’s] home. 6
b. None of [Grandmother’s] family are allowed to contact 7 [Mother]. 8

{ 4 } In July 2021, a few months after the original no

- contact order was entered and 9 a little more than a year after the kinship guardianship was terminated, Grandmother 10 filed the GVPA petition that is currently before us. The GVPA petition referenced 11 the temporary KGA appointment but not the original no

- contact order. Mother filed 12 a counterclaim and pleaded that Grandmother and her family were “currently 13 prohibited from contacting [Mother] by virtue of a [c]ourt [o]rder filed on February 14 21, 2021 in [the KGA proceeding].” In January 2022, Mother filed a motion, in 15 relevant part, to dismiss Grandmother’s GVPA petition based on the existence of the 16 original no

- contact order. In response, Grandmother argued that the original no

17 contact order did not prevent contact between Grandmother and Child. 18

{ 5 } Mother returned to the KGA proceeding in February 2022 , and after a hearing, 19
the district court entered a revised no

- contact order in May 2022. The revised no

20 contact order stated that the intent of the district court with the original no

- contact 21 order had been “to establish no[] contact between Grandmother and [C]hild but [it] 224 failed to do so and, thus, created uncertainty.” The revised no

- contact order further 1
found as follows: 2
5. To resolve the ambiguity, the [c]ourt finds Mother has a 3 superior right in this matter to determine visitation under the [c]ourt’s 4 interpretation of the holding in Troxel v. Granville , 530 U.S. 57 . . . 5 (2000) as it relates to this matter. 6
6. Mother no longer wants any contact between Grandmother 7 and [C]hild. 8
7. Therefore, due to Mother’s wishes, Grandmother shall 9 have no contact with Mother or [C]hild in person or in any form, 10 including but not limited to mail or packages in any form, electronic 11 communications, or phone calls. 12
The revised no

- contact order further prohibited Grandmother from approaching 13 within 100 yards of Mother’s home or place of business, contacting Mother or Child 14 in a public place, or approaching within 100 yards of Mother or Child in a public 15 place. 16

{ 6 } In July 2022, the same judge who entered the revised no

- contact order was 17 assigned to the GVPA proceeding , which continued toward an October 25, 2022 18 bench trial, with a motions hearing set for October 12, 2022. The day before the 19 hearing, Mother filed another motion to dismiss the petition based on the restrictions 20
in the revised no

- contact order. The district court reserved ruling on the motion to 21 dismiss and ordered any responses to be filed before the October 25, 2022 trial 22 setting. 235 { 7 } To sum up the issue at the end of the October 12, 2022 hearing, the district 1 court asked, “How is it that I can grant visitation under [the] grandparent visitation 2 statute when I’ve already concluded , after extensive litigation and an evidentiary 3 hearing , that no contact is in the best interests of the child?” Grandmother explained 4 that she intended to offer expert testimony to establish that “very young children 5 form deep psychological bonds to their primary caregivers , and if those bonds are 6 disrupted, if they are torn apart, they can cause permanent attachment disorders for 7 children that may not manifest until the child, like [Child], is much older.” After the 8 hearing, Grandmother filed a response to Mother’s motion to dismiss and argued 9 that the district court was “not precluded by an existing order in a different case 10 decided under the [KGA] when determining visitation under the [GVPA] and that 11 the [c]ourt can and should rightly grant Grandmother’s [p]etition based on law and 12 equity.” Grandmother additionally maintained that the GVPA complaint was 13
sufficient to survive a motion to dismiss. 14

{ 8 } At the October 25, 2022 bench trial setting, the district court reiterated , 15

“ Y ou’re asking for contact in

— with the backdrop of having an order that has no

— 16 that provides you will have no contact.” Grandmother maintained that the revised 17

no - contact order was not the law of the GVPA case

— only the law of the KGA case 18
and that the revised no

- contact order relied entirely on Mother’s desire for no contact 19 while the GVPA required analysis of the relationships between the parties. Mother 206 disputed Grandmother’s characterization of the revised no

- contact order and pointed 1 to the undisputed facts related to Grandmother’s behavior, as set forth in the motion 2 to dismiss. The district court stated that the GVPA required consideration of the 3 relationships between the people involved and that the adults in the present case had 4 a hostile relationship. Grandmother repeatedly pressed the issue of important 5 psychological attachments. But “based on the three

- year history of this case,” the 6
district court did not “believe that it is in the best interests of this C hild to have a 7 relationship with the Grandmother when [it is] quite certain .

. . in whatever format 8 or forum in which it comes to the court, [it] is going to put the Child in the middle 9 of a conflicted relationship.” 10

{ 9 } The district court found that the revised no

- contact order precluded “any 11
contact” between Grandmother and Child , and as a result dismissed the GVPA 12 petition for failure to state a claim without receiving Grandmother’s evidence. 13 Grandmother appeals. 14
DISCUSSION 15

{1 0 } Grandmother argues that (1) the GVPA petition stated a claim as a matter of 16
law to withstand dismissal under Rule 1

- 012(B)(6) NMRA and the district court 17 improperly relied on facts outside the pleadings; (2) the revised no

- contact order did 18 not preclude the GVPA proceeding; and (3) the district court improperly refused to 19 permit Grandmother to present evidence in relation to the GVPA petition allegations. 207 We begin our legal analysis with the sufficiency of the GVPA petition and the impact 1 of the district court’s reliance on facts outside the pleadings. We then turn to the 2 preclusive effect of the revised no

- contact order and last evaluate whether the district 3 court improperly declined to consider Grandmother’s evidence. 4
I. Though the GVPA Petition Stated a Claim for Relief, Mother’s Reliance 5 on the Revised No

- Contact Order Converted the Motion to Dismiss to a 6 Motion for Summary Judgment 7

{1 1 } “ Dismissals under Rule 1

- 012 ( B )( 6 ) are proper when the claim asserted is 8 legally deficient.” Delfino v. Griffo , 2011

- NMSC

- 015, ¶ 9, 150 N.M. 97, 257 P.3d 9
917. To review the grant of a motion to dism i ss, “we accept all well

- pleaded factual 10 allegations in the complaint as true and resolve all doubts in favor of sufficiency of 11 the complaint.” Id. (internal quotation marks and citation omitted). If, however, 12 “matters outside the pleadings are presented to and not excluded by the court, the 13 motion shall be treated as one for summary judgment and disposed of as provided in 14
Rule 1

- 056 NMRA.” Rule 1

- 012(C); see also Delfino , 2011

- NMSC

- 015, ¶ 10 15 (acknowledging that appellate courts also “review motions to dismiss as motions for 16 summary judgment when the district court considered matters outside the pleadings 17 in making its ruling”). Grandmother argu es that the district court did not consider all 18 of the facts in the petition to be true and improperly considered matters outside the 19 pleadings. We agree that Grandmother alleged sufficient facts to survive Mother’s 20 motion to dismiss, and that the district court considered the revised no

- contact order 218 in deciding the motion, thus converting it from a motion to dismiss to a motion for 1 summary judgment. 2

{1 2 } The GVPA requires two initial showings to maintain a petition for 3 grandparent visitation: Section 40

- 9

- 2(C) “ opens the door for a grandparent to seek 4
visitation privileges under the [GPVA] upon threshold sh owings of residence and 5 removal” and “[o]nce the Subsection (C) door is opened, Subsection (G) discusses 6
various factors the district court is to assess when considering the merits of a 7 grandparent’s petition seeking visitation privileges .” French

- Hesch v. French

8
Williams , 2010

- NMCA

- 008, ¶ 12 , 147 N.M. 620, 227 P.3d 110

. In relevant part, 9

u nder Section 40

- 9

- 2(C) , a grandparent may file a petition in the district court for 10
visitation “ if [ the ] minor child resided with a grandparent for a period of at least 11 three months and the child was less than six years of age at the beginning of the 12
three

- month period and the child was subsequent ly removed from the grandparent’s 13 home by the child’ s parent or any other person.” The “merits” of the petition are 14 evaluated according to the factors listed in Section 40

- 9

- 2(G). See French

- Hesch , 15
2010

- NMCA

- 008, ¶ 12. 16

{1 3 } Grandmother sufficiently alleged the facts required by the GVPA to establish 17 both the required threshold showing under Section 40

- 9

- 2(C) and the factors to be 18 assessed to consider the merits of a GVPA petition under Section 40

- 9

- 2(G). 19 Grandmother alleged that Child was born in June 2016, lived with her from April 209 12, 2018 until May 22, 2020, and contact with Child has “been completely cut off” 1 since the termination of the kinship guardianship in May 2020. These allegations 2 satisfy Section 40

- 9

- 2(C), which “opens the door” to the factors outlined in Section 3
40

- 9

- 2(G). See French

- Hesch , 2010

- NMCA

- 008, ¶ 12. Grandmother addressed 4 these factors by alleging that visitation was in Child’s best interests, the prior 5 interaction between her and Child was “close and positive,” contact had since “been 6 completely cut off,” Grandmother had previously been Child’s kinship guardian and 7 “played a significant role” in Child’s life, and Grandmother had no prior convictions 8
for abuse. See § 40

- 9

- 2(G). These allegations, if true, would satisfy the requirements 9
of Section 40

- 9

- 2(G) and the complaint therefore stated a claim for visitation. 10

{1 4 } Nevertheless, because the district court considered matters outside the 11 pleadings

— the revised no

- contact order

— we review the district court’s dismissal as 12 a grant of summary judgment under Rule 1

- 056 and not a dismiss al under Rule 1

- 13 012(B)(6). In that light, Mother was required to make a prima facie showing that she 14 was entitled to summary judgment, which she did by presenting the revised no

15
contact order. See Romero v. Philip Morris Inc. , 2010

- NMSC

- 035, ¶ 10, 148 N.M. 16 713, 242 P.3d 280. The burden then shifted to Grandmother “to demonstrate the 17 existence of specific evidentiary facts which would require trial on the merits.” See 18
id. (internal quotation marks and citation omitted). 1910 {1 5 } Mother agrees that the motion was properly considered as a summary 1 judgment motion, but maintains that judgment as a matter of law was appropriate 2 because (1) the revised no

- contact order “is controlling and effectively bars 3 Grandmother’s petition as a matter of law”; and (2) to the extent issue preclusion, or 4 collateral estoppel, applies, “[c]ollateral estoppel gives effect in the present case to 5 the determination underlying the revised no

- contact order that contact between 6
Grandmother and Child would not be in Child’s best interests.” Grandmother 7
contends that the revised no

- contact order impacts only the KGA proceeding , and 8 the GVPA proceeding cannot be precluded because the revised no

- contact order was 9 based solely on Mother’s wishes and in the KGA proceeding, the best interests 10 analysis was incomplete , and all of the GVPA elements were not considered. 11

{1 6 } On the one hand, we agree with Mother that the revised no

- contact order is 12 controlling and on the other, Grandmother stated a claim for visitation under the 13 GVPA. The parties and the district court framed the issue as one of preclusion. But 14 ordinary preclusion doctrines

— like collateral estoppel and res judicata

— are not 15 always a good fit for the type of proceedings in this appeal, which by their nature, 16 sometimes warrant relitigation of claims and issues. Ordinary preclusion doctrines 17 are designed to “promote[] judicial economy and protect[] parties from endless 18 relitigation.” Deflon v. Sawyers , 2006

- NMSC

- 025, ¶ 13, 139 N.M. 637, 137 P.3d 19 577. Specifically, collateral estoppel prevents the relitigation of facts “actually and 2011 necessarily decided in a prior suit,” id. (internal quotation marks and citation 1 omitted) , while res judicata “prevents a party or its privies from repeatedly suing 2 another for the same cause of action,” id. ¶ 2. Both doctrines require some analysis 3 of whether the same facts or legal issues have already been decided. See i d. ¶¶ 2, 14. 4 A different analysis is necessary for district courts with continuing jurisdiction that 5 are attempting to manage a fluid family dynamic. Flexibility is necessary to address 6 constantly changing circumstances, based on the nature of the order at issue. We 7 therefore look more closely at the nature of the revised no

- contact order and its 8 practical impact on future proceedings. 9
II. The Revised No

- Contact Order Had Qualified Preclusive Effect and the 10 GVPA Petition Operated a s a Request to Modify the Revised No

- Contact 11 Order 12

{1 7 } Neither the KGA nor the GVPA grant specific authority to enter a no

- contact 13 order. The entry of a no

- contact order, absent specific authority, see , e.g. , the Family 14 Violence Protection Act, see NMSA 1978, §§ 40

- 13

- 1 to

- 13 (1987, as amended 15 through 2019), is an exercise of the general authority that our state constitution 16 confers on district courts to enter injunctions. See N.M. Const. art. VI, § 13 17 (“[D]istrict courts .

. . shall have power to issue writs of .

. . injunction .

. . in the 18 exercise of their jurisdiction.”). “Injunctions are granted to prevent irreparable injury 19 for which there is no adequate and complete remedy at law.” Kennedy v. Bond , 1969

- 20
NMSC

- 119, ¶ 17, 80 N.M. 734, 460 P.2d 809. It has long been established that “ an 2112 injunction is a rule of conduct merely imposed, for the time being, upon a litigant by 1 the properly constituted authority.” Canavan v. Canavan , 1914

- NMSC

- 019, ¶ 10, 2 18 N.M. 640, 139 P. 154. If an “injunction is merely ancillary to the principal relief 3 sought and is in terms granted until further order of the court, it is regarded as 4 abrogated by the final judgment of the court granting the principal relief sought by 5 the action and making no provision for continuing the injunction .” Id. ¶ 7 (internal 6 quotation marks and citation omitted)

. 7

{1 8 } Final relief, however, has unique features in family court proceedings, which 8 often involve continuing jurisdiction to modify orders. Some orders in family court 9 proceedings

— like child custody and support in a divorce

— are explicitly modifiable 10 by statute. See NMSA 1978, § 40

- 10A

- 202 (2001) ( providing for exclusive, 11 continuing jurisdiction over child

- custody determination); NMSA 1978, § 40

- 4

- 12 11.4(A), (C) (2021) ( permitting modification of child support orders). In those cases, 13 any injunctive relief granted during the pendency of the case is “abrogated” by the 14 granting of “the principal relief sought by the action,” see Canavan , 1914

- NMSC

15 019, ¶ 7, but even the order granting or denying the final relief requested is 16 modifiable provided that the party seeking modification makes the appropriate 17 showing. See Cherpelis , 1996

- NMCA

- 037, ¶ 18 (noting that “[o]f course, for 18 domestic relations judgments the major qualification to finality is that courts retain 19 the power to modify support orders when justified by a substantial change in 2013 circumstances”). The district court in a GVPA proceeding has continuing 1 jurisdiction to modify and enforce grandparent privileges. See § 40

- 9

- 3(A) (granting 2 the district court authority to modify and enforce grandparent visitation privileges). 3
And when a kinship guardian is appointed in a KGA proceeding, the district court 4 has “continuing jurisdiction of the matter.” See § 40

- 10B

- 14 (continuing 5 jurisdiction). Thus, an injunction entered in a KGA or GVPA proceeding is ongoing 6
and modifiable until otherwise ordered or until the district court’s continuing 7 jurisdiction to modify the order has ceased. 8

{1 9 } Despite the modifiable nature of a no

- contact order entered in a family 9 proceeding in which the district court has ongoing jurisdiction, the strictures of such 10 an existing order must apply broadly to all of the parties’ conduct. The purpose of a 11 protection order like the revised no

- contact order is to “prevent future harm to a 12 protected party by a restrained party.” Cf. Best v. Marino , 2017

- NMCA

- 073, ¶ 25, 13 404 P.3d 450 (considering a statutory order of protection). To achieve that purpose, 14 a protection order must control the parties’ conduct in relation to each other outside 15 of that proceeding

— whether in the world or in another case. As a result, contrary to 16 Grandmother’s position, restrictions found in the revised no

- contact order are not 17 limited only to the KGA proceeding. Cf. Ortiz v. Gonzales , 1958

- NMSC

- 109, ¶ 24, 18 64 N.M. 445, 329 P.2d 1027 (holding that the district court was bound by an order 19 entered in an earlier proceeding when determining whether that order could be 2014 enforced in a subsequent and separate proceeding); Greathouse v. Greathouse , 1958

- 1
NMSC

- 032, ¶¶ 2, 4, 64 N.M. 2 1, 322 P.2d 1075 (concluding that a restraining order 2 on property subjected that property to the jurisdiction of the district court and a 3 subsequent action could not distribute that property). The revised no

- contact order 4 controls the conduct of the parties who are subject to it for as long as that order is in 5
effect. 6

{ 20 } Our conundrum is therefore that the revised no

- contact order is both binding 7 while it is in effect and modifiable, and Grandmother had standing to file a petition 8 under the GVPA and alleged sufficient facts to support a claim. To address the 9 impact of the revised no

- contact order in the present case, the parties have taken 10 somewhat extreme positions: Grandmother relegates the effect of the revised no

11 contact order to the KGA proceeding. We have already explained why the revised 12

no - contact order must have broader effect. Mother contends that the revised no

13 contact order cannot be collaterally attacked. Collateral attack, however, is 14 impermissible only as “an attempt to avoid, defeat, or evade a judgment, or deny its 15 force and effect, in some incidental proceeding not provided by law for the express 16 purpose of attacking the judgment.” Lewis v. City of Santa Fe , 2005

- NMCA

- 032, 17 ¶ 10, 137 N.M. 152, 108 P.3d 558 ( alteration, internal quotation marks , and citation 18
omitted ). The revised no

- contact order is not a judgment. It is rather a modifiable 19

“ rule of conduct merely imposed, for the time being, upon a litigant by the properly 2015 constituted authority.” See Canavan , 1914

- NMSC

- 019, ¶ 10 . For this reason, we 1 reject Mother’s argument that relief from the revised no

- contact order was available 2 only “by a motion for reconsideration, an appeal, or a motion for relief from the 3
order under Rule 1

- 060(B) NMRA.” The district court’s continuing jurisdiction in 4 the KGA proceeding and the modifiable nature of the no

- contact order create a 5 procedural posture that is appropriately flexible for proceedings that evolve as 6 unpredictably as families do. We conclude that this context

— involving a modifiable 7 order for injunctive relief in a family proceeding with continuing jurisdiction

— 8 recommends application of qualified issue preclusion. 9

{ 2 1} The preclusive effect of the revised no

- contact order at issue here is similar to 10 the preclusive effect of spousal support orders , which are “ entitled to a qualified 11 preclusive effect, modifiable in light of changed circumstances.” Cherpelis , 1996

- 12
NMCA

- 037, ¶ 18. In Cherpelis , this Court explained that by statute, support orders 13 are modifiable “when justified by a substantial change in circumstances , ” i d. , and 14 the party seeking to reopen the earlier decision carries the burden of production and 15 persuasion to justify modification, id. ¶ 22. Orders for injunctive relief in family 16 matters that provide for continuing jurisdiction are similarly modifiable

— whether 17 for changed circumstances or some other reason that the injunctive relief should no 18 longer govern the parties’ conduct

. See Canavan , 1914

- NMSC

- 019, ¶ 10 (referring 19 to an injunction as a “rule of conduct”) ; Wild Horse Observers Ass’n, Inc. v. N.M. 2016 Livestock Bd. , 2022

- NMCA

- 061, ¶ 33, 519 P.3d 74 (noting that to impose injunctive 1
relief “ a district court must consider a number of factors and balance the equities and 2 hardships ” (internal quotations marks and citation omitted)); see also Restatement 3 (Second) of Judgments § 13 cmt. c (1982) (“If the judgment was one granting 4 continuing relief, and a change of circumstances makes the judgment too 5 burdensome or otherwise inapposite as a regulation of ongoing conduct, it is 6 ordinarily possible for the party concerned to apply to the rendering court for a 7 modification of the terms of the judgment.”) . As a result, qualified issue preclusion 8 applies. See Cherpelis , 1996

- NMCA

- 037, ¶ 23 (rejecting issue preclusion when, 9 “although technically correct, it would run counter to policy goals”). In that context, 10 Grandmother, as the party seeking to benefit from modification of the earlier 11 decision, had the burden to demonstrate that the revised no

- contact order should be 12
modified. See i d. ¶¶ 20

- 21 (discussing the qualified issue preclusion burden). 13

{ 22 } Grandmother contends that the revised no

- contact order is not the earlier 14 decision, because the GVPA proceeding was filed before the KGA court revised the 15

no - contact order to prevent contact between Grandmother and Child. Qualified issue 16 preclusion under these circumstances, Grandmother argues, amounts to 17 “retroactive” preclusion, because the petition was not precluded by any order at the 18 time it was filed. By its nature as an injunction, however, the revised no

- contact 19 order suspends any earlier orders and future conduct, see Canavan , 1914

- NMSC

- 2017 019, ¶ 10 (describing an injunction as imposed “for the time being”), until the no 1
contact order is resolved , id. ¶ 7 (providing that an injunction is abrogated by a final 2 judgment that makes no provision for continuing the injunctive relief). Had the 3 GVPA petition been granted before the revised no

- contact order was entered, 4 visitation would have been suspended until the no

- contact order was resolved. 5 Similarly, the filed GVPA petition did not limit the KGA court’s authority to enter 6
the revised no

- contact order or its broad effect on the parties’ future conduct, 7 including visitation under the GVPA. T he revised no

- contact order suspended 8 Grandmother’s contact with Child, regardless of when it was entered in relation to 9 the GVPA petition, and visitation as a practical matter could not happen until the 10 suspension was lifted. 11

{ 23 } Lifting the suspension

— in the form of the revised

- no contact order

— will not 12 always take the same route and depends on the circumstances of the case. Generally, 13 district courts may not direct orders “to judges or courts of equal or superior 14 jurisdiction.” N.M. Const. art. VI, § 13 ; Child., Youth & Fams. Dep’t v. Djamila B. , 15
2014

- NMCA

- 045, ¶ 14, 322 P.3d 444 (“One district court judge cannot set aside the 16 order of another district court judge.”). Thus, the district court with jurisdiction to 17 modify the revised no

- contact order must consider whether modification of its terms 18 is appropriate

. In the present case, the revised no

- contact order and the GVPA 19 petition existed in separate proceedings. Any grant of the GVPA petition

— that was 2018 not made subject to modification of the revised no

- contact order

— would necessarily 1
have to overrule the revised no

- contact order. 2 In the present case this prohibition 2 was no barrier, because the same judge who entered the revised no

- contact order 3 also heard the GVPA matter and therefore had jurisdiction to determine whether 4 genuine issues of material fact existed in relation to the GVPA petition or otherwise 5 that would support modification o f the revised no

- contact order. 6

{ 24 } As Mother points out, however, Grandmother did not request during the 7 GVPA proceeding that the district court modify the revised no

- contact order. 8
Grandmother contends because the revised no contact

- order had not been entered 9 when the petition was filed, “[t]o expect Grandmother to request modification of a 10

non - existent order is not logical.” Both parties view each inquiry and each 11 proceeding narrowly. But we do not. The role of the courts in a family law 12 proceeding is to determine the best interests of a child, safeguard constitutional 13 rights, and address the issues as they arise

— practically and fairly in the context of 14 all the circumstances. Both parties and the district court knew, at the summary 15

2 The converse is not true

— a district court may enter a no

- contact order that impacts the terms of an existing order that was earlier entered by another court. As we have explained, by its nature as an injunction, a no

- contact order does not set aside existing order s permitting contact, see Canavan , 1914

- NMSC

- 019 , ¶ 10, (describing an injunction as imposed “for the time being”), but merely suspends earlier order s until the no - contact order is resolved , id. ¶ 7 (providing that an injunction is abrogated by a final judgment that makes no provision for continuing the injunctive relief).19 judgment hearings on the GVPA petition, that the revised no

- contact order was an 1
issue to be addressed. 2

{ 25 } At the first summary judgment hearing, the district court explained, 3 You have heard me say probably

— I don’t know

— 10,000 times

— 4 probably 20,000 times

— the number

— after sexual abuse, the number 5 one harm that parents or adults do to children is put them in the middle 6 of a war zone. Conflict is guaranteed, according to the therapists that 7 have testified before me as experts, guaranteed to traumatize the child. 8 Now, what you’ve done is, without a motion to reconsider, without an 9 appeal, you are asking this court to essentially reconsider its own

— its 10 own order of May 20th, when I ruled that it was in the best interest of 11 the C hild to have no contact with Grandma and to have no contact with 12 bio mom. And now you’re saying, well, we’d like some visitation 13 rights. Now at the very nub of your case is a question that must be 14 answered. And that question is how

— what do you expect this court to 15 legally do with its finding

— both a finding and a conclusion of law

— 16 that there should be no contact between Grandma and Child? What do 17 you expect me to do

— that stands now as a law of the case. 18 At the next setting, the district court recited the court’s prior view of the case, noted 19 that the evidence that Grandmother proffered would not be persuasive given the 20 parties’ history, and declined to allow Grandmother to present any evidence. The 21 district court again asked about the legal impact of the revised no

- contact order and 22 noted its own continuing jurisdiction to address changes in circumstances. The 23 impact of the revised no

- contact order on the GVPA petition was squarely before 24
the district court. Thus, though Grandmother did not seek modification of the revised 25

no - contact order, the district court knew modification based on changed 26 circumstances was an appropriate inquiry but nevertheless dismissed the GVPA 2720 petition as precluded as a matter of law. Whether that decision was correct is the 1 question that remains. 2
III. Grandmother Was Entitled to Offer Evidence to Demonstrate T hat the 3 GVPA Petition Created a Genuine Issue of Material Fact 4

{ 26 } To recap, the district court had before it a GVPA petition and as the basis for 5 dismissing the petition, Mother presented the revised no

- contact order that was 6 entered in the separate KGA proceeding. As we have explained, the necessary 7 question was whether the revised no

- contact order should be modified in light of 8 Grandmother’s GVPA petition and any other changed circumstances. 9

{ 27 } Grandmother argues that the district court granted summary judgment despite 10 disputed material facts and without permitting Grandmother to present necessary 11
evidence. See Rule 1

- 012(C) (explaining that when a Rule 1

- 012(B)(6) motion is 12 treated as a motion for summary judgment, “all parties shall be given reasonable 13 opportunity to present all material made pertinent to such a motion by Rule 1

- 056”). 14
Grandmother contends that additional evidence would have affected the district 15 court’s balance of Child’s best interests. Grandmother argues that (1) under the 16 GVPA, the issue of Child’s best interests is specific to whether visitation with a 17 grandparent is in the child’s best interests; and (2) Mother’s wishes weigh more 18 heavily in a custody context like the KGA proceeding than in a GVPA proceeding. 19 Mother essentially argues that Grandmother’s evidence to support the GVPA 20 petition is immaterial. Although we disagree with Grandmother that the best interests 2121 analysis is fundamentally different in the GVPA proceeding, we conclude that 1 Grandmother’s proffered evidence was material to modification of the revised no 2 contact order and therefore should have been considered by the district court. 3

{ 28 } We reject Grandmother’s position that the GVPA requires a fundamentally 4 different best interests analysis, because a GVPA proceeding involves minor 5 children, and i t is well established that “‘in every proceeding in which minor children 6 are involved, a court ’ s primary obligation is to further the best i nterests of the 7
child .’” N.M. Hum. Ser v s. Dep’t v. Toney , 2019

- NMCA

- 035, ¶¶ 1, 24, 444 P.3d 8 1074 (considering child support obligations and citing cases involving termination 9 of parental rights, parentage, and parental support (quoting Wasson v. Wasson , 1978

- 10
NMCA

- 092, ¶ 4, 92 N.M. 162, 584 P.2d 713 ) )

. In entering the revised no

- contact 11 order, the district court also considered the wishes of the custodial parent

— 12
Mother

— about Grandmother’s visitation. 3 See Wild Horse Observers Ass’n , Inc. , 13
2022

- NMCA

- 061, ¶ 33 (“ In determining whether to grant injunctive relief, a district 14
court must consider a number of factors and balance the equities and hardships.” 15 (internal quotation marks and citation omitted ) ). This was appropriate because, as 16

3 A KGA proceeding does not always involve a custodial parent and a grandparent, and the interests to be protected will shift depending on the rights of the parties to the particular dispute

. See State, ex rel. Child., Youth & Fams. Dep’t
v. Djamila B. , 2015

- NMSC

- 003, ¶ 32, 342 P.3d 698 (noting that the law must be harmonized “to preserve family unity when children have unconventional family structures involving both biological parents and kinship guardians”).22 the United States Supreme Court has explained, “ [I] t cannot now be doubted that the 1 Due Process Clause of the Fourteenth Amendment protects the fundamental rights 2 of parents to make decisions concerning the care, custody, and control of their 3
children.” Troxel , 530 U.S. at 66. From this right arises “the traditional presumption 4 that a fit parent will act in the best interest of [their] child.” Id. at 69. And for that 5 reason, “if a fit parent’s decision” regarding intergenerational visitation “becomes 6 subject to judicial review, the court must accord at least some special weight to the 7 parent’s own determination.” Id. at 70. Grandmother argues that this special weight 8 applies to a KGA determination but not the GVPA. 9

{ 29 } Though the GVPA does not explicitly account for a custodial parent’s wishes 10 in its statutory balance, statutes are to be given effect “[w]ithin the constitutional 11
limits.” Cf. Coe v. City of Albuquerque , 1966

- NMSC

- 196, ¶ ¶ 9, 10, 76 N.M. 771, 12 418 P.2d 545 (declaring a statute to be void to the extent it permitted “an 13 unconstitutional delegation of power”). When Mother sought to prevent 14 Grandmother’s contact with Child, Mother exercised the fundamental right we have 15 already described

— the right “to make decisions concerning the care, custody, and 16
control of their children”

— in the context of grandparent visitation, just as in Troxel

. 17
See Troxel , 530 U.S. at 66, 70. Thus, the GVPA’s requirement that the district court 18 assess “any factors relevant to the best interests of the child,” see § 40

- 9

- 2(G)(1), 19 includes weighing the custodial parent’s wishes regarding visitation. See State v. 2023 Rael , 2024

- NMSC

- 010, ¶ 47, 548 P.3d 66 (explaining that appellate courts endeavor 1 to construe statutes, if possible, “to avoid constitutional questions” (internal 2 quotation marks and citation omitted)). As a result, the required legal showing for 3 the child’s best interests under the GVPA, contrary to Grandmother’s argument, is 4 no different from any analysis of the best interests of a child that also implicates a 5 parent’s fundamental right. 6

{ 30 } Nevertheless, we agree with Grandmother that the district court should have 7 considered the remaining GVPA factors and the additional evidence that she 8 intended to present. See § 40

- 9

- 2(G)(2)

- (8) (describing the additional factors). 9 Grandmother proffered the evidence of an expert on attachment disorder to testify 10 about how cutting off visitation affects a child, as well as Grandmother’s own 11 testimony about her desire to repair the relationship with Mother and her close 12 relationship with Child. Such evidence could create a genuine issue of material fact 13 about whether under the current circumstances, modification of the revised no

14 contact order is justified and visitation under the GVPA is appropriate. See Rule 1

- 15 056(C) (stating that summary judgment must be rendered “ if the pleadings, 16 depositions, answers to interrogatories and admissions on file, together with the 17 affidavits, if any, show that there is no genuine issue as to any material fact and that 18 the moving party is entitled to a judgment as a matter of law ”). The district court 19 declined to receive additional evidence and granted summary judgment based on the 2024 existence of the revised no

- contact order, without giving Grandmother a “reasonable 1 opportunity to present all material made pertinent” to Mother’s motion. See Rule 1

- 2 012(C). 3
IV. We Decline to Outline the Procedure on Remand 4

{ 3 1} The parties disagree about the necessary procedure on remand. Mother 5
contends that the revised no

- contact order could be modified only in the KGA 6 proceeding. Grandmother contends that the revised no

- contact order need only be 7 considered as evidence within the weight of the GVPA factors and that if the GVPA 8 petition is successful, the revised no

- contact order dissolves. We observe that the 9 circumstances of the present case demonstrate why a procedure proscribed by us is 10 not only unhelpful but detrimental to the flexibility of the district courts in family 11 court proceedings. 12

{ 32 } The district court in the present case, by happenstance, had jurisdiction over 13 both cases and could address both orders simultaneously. See Rule 1

- 042 NMRA 14 (addressing consolidation of cases). The district court’s error was not in addressing 15 both issues but in not allowing Grandmother to present the evidence to support her 16 claim. Alternatively, had Grandmother returned to the KGA proceeding and sought 17
modification of the revised no

- contact order based on the allegations that she asserts 18 in the GVPA petition or any other changed circumstances, the revised no

- contact 19 order could have been amended. If the suspension on visitation were lifted, 2025 Grandmother would be free to pursue visitation under the GVPA. In yet a third 1 scenario, Grandmother could have litigated the GVPA petition with the revised no

2 contact order acting as evidence within the weight of the statutory factors. But any 3 order for visitation that she obtained would remain suspended until the revised no

4 contact order was modified. We hesitate to dictate the procedure on remand because 5 the district court and the parties are in the best position to decide how they wish to 6 move forward within the legal framework that we have constructed. 7
CONCLUSION 8

{ 33 } For the reasons stated herein, we reverse and remand. 9

{ 34 } IT IS SO ORDERED. 10

___ ___________________________ 11 KATHERINE A. WRAY , Judge 12
WE CONCUR: 13

________________________________ 14 JACQUELINE R. MEDINA, Judge 15

________________________________ 16 ZACHARY A. IVES, Judge 17