Family Law

How do Judges Decide Child Custody in New Mexico

By Amy Castillo, J.D., University of Minnesota School of Law
Learn about the different kinds of custody and visitation, and how New Mexico judges decide custody cases.

Child Custody and Visitation in New Mexico

If you’re going through a divorce with children, you may be feeling overwhelmed. Not only do you have to manage your own grief, but you have to make good decisions for your kids. Understanding the way that family law courts work is the best way to start.

What’s the Difference Between Legal and Physical Custody?

In New Mexico, there are several types and variations of custody:

  • Physical custody refers to where a child lives, spends a lot of time, and receives basic daily care.
  • Legal custody is about giving a parent a voice in a child’s upbringing. A parent with legal custody will give input and help make decisions about important issues in the child’s life, including education, extracurricular activities, religious and spiritual affairs, cultural activities, and medical and dental care.
  • Sole custody means that one parent has complete physical or legal custody, or possibly both. A parent with sole physical custody has the children most of the time and assumes primary responsibility for their daily care, while the other parent spends smaller amounts of visitation time with them. On the other hand, a parent who has sole legal custody has the authority to manage a child’s educational, religious, spiritual, cultural, and medical needs. Awards of sole legal custody are rare and usually happen when one of the parents is abusive or neglectful.
  • Joint custody is shared and has the following significant features:
    • each parent has significant, well-defined periods of responsibility for the child
    • each parent is expected to carry out responsibility for the child’s financial, physical, emotional, and developmental needs
    • the parents have to consult with each other on major decisions and can’t make major decisions unilaterally (meaning, on their own)
    • if the parents disagree about a major change in the child’s life, that change will not occur until the dispute has been resolved
    • if either parent wants to move to a new city or state, that parent has to give the other parent 30 days’ written notice
    • the parents can’t alter the child’s current religious denomination and practices unless they both agree
    • both parents must have access to the child’s school records, teachers, and activities
    • both parents must have access to the child’s medical and dental providers and records
    • either parent can make emergency medical decisions
    • neither parent can arrange for the child to have elective medical or dental treatment unless the other parent agrees
    • both parents can attend the child’s public activities and have a right to know when these activities are scheduled to occur, and
    • neither parent can alter the child’s recreational activities, regardless of who has physical custody, and neither parent can enroll the child in new activities without the other parent’s consent.

One of the most important things to know about joint custody is that the parents have to be willing and able to cooperate with each other, or a judge will not award joint custody. If there’s an extensive history of serious arguments and problems, or if there’s been domestic violence, there won’t be a joint custody award.

In New Mexico, when new custody cases start, the judge starts with an assumption (called a “presumption”) that joint custody is best for the child. That assumption remains in place unless one of the parents presents good evidence showing that joint custody isn’t best.

What Is Visitation?

Generally speaking, visitation is a court-ordered, scheduled time when a non-custodial parent is able to be with the kids physically (for example, summer breaks or weekend visits), call them on the telephone, or speak through real-time video call apps like Skype or FaceTime.

The specifics of visitation will be part of your parenting plan. Both parents are governed by the visitation schedule the judge imposes. Unless the parents request something different, the judge will usually divide up holidays on an alternating year-to-year basis to make sure that children are able to spend special holiday time with each parent.

If a parent who is entitled to visitation abuses drugs or alcohol or has a history of abuse or neglect, a judge may order supervised visitation, where a neutral party can observe the visit and make sure the child is safe.

Never try to prevent your ex from exercising court-ordered visitation. If you do, you can be subject to sanctions (judicial punishment). However, if you believe your child would be immediately or physically endangered by visiting with the other parent, you should immediately contact a family attorney for advice and consider asking the court for an emergency custody order.

Can Parents Agree to Their Own Custody and Visitation Arrangements?

It’s much better to reach a compromise on custody if you can. Once the courts are involved, your child’s fate will be decided by a judge who’s educated and dedicated to the law, but is a stranger to you and your family. The judge doesn’t know you personally and you might be unhappy with the decision. On the other hand, if you and your ex can reach an agreement, you can make your own choices and retain control over your life.

When parents can’t agree about how to handle major decisions in a child’s life, the matter doesn’t necessarily have to go to trial. There are other dispute-resolution mechanisms that parents can use in New Mexico:

  • the parents may attend family counseling;
  • the parents may go to mediation; and
  • the parents can submit their dispute to an arbitrator (a neutral legal expert who has decision-making authority).

You should always consult with an experienced family law attorney when you have a child custody problem, but if you can’t afford one, contact New Mexico Legal Aid. The New Mexico Courts’ Self-Help Guide may also help.

Parenting Plans

When parents disagree about custody and visitation, each of them has to submit a proposed parenting plan to the judge. A parenting plan divides up the child’s time and care into periods of responsibility for each parent. Parenting plans may also include:

  • statements and information about the child’s religion, education, child care, recreational and extracurricular activities, and medical and dental care;
  • a division of each parent’s specific decision-making responsibilities;
  • a list of methods the parents will use to:
    • communicate with each other about the child
    • transport the child back and forth between their homes
    • mutually care for the child, and
    • ensure that each parent is able to maintain telephone and mail contact with the child
    • procedures the parents will use to make future decisions together, including methods they will use to resolve any disputes they might have,and
    • any other statements the parents may wish to make about the child’s welfare or to simplify future parenting time.

The court will evaluate each parent’s proposed parenting plan; it can accept one parent’s plan as-is or it can combine and revise each parent’s plan into one comprehensive plan.

How Do Judges Decide Custody Issues?

The court must always approve a parenting plan that’s in the child’s best interest, even if one or both parents are unhappy with it. The judge will listen to testimony and receive other evidence about the parents and the child, and then make a decision based on the following factors:

  • the parents’ wishes
  • the child’s wishes (if the child is age 14 or older, the court must take the opinion into account)
  • the child’s relationships and interactions with each parent, any siblings, and anyone else who plays a big role in the child’s life)
  • how well the child is adjusted to home, school, and community, and
  • the mental and physical health of everyone involved.

The court can’t give either parent a preference based on gender.

In addition, the judge has to evaluate more factors to decide whether joint custody is in the child’s best interests:

  • whether the child has a close relationship with each parent
  • whether each parent is capable of providing the child with adequate care and arrange for child care as needed
  • whether each parent is willing to accept all responsibility for parenting
  • whether each parent is willing to accept child care at some times and relinquish care at other times
  • whether the child will maintain and benefit from a strong, healthy relationship with both parents through predictable, frequent contact
  • whether each parent will respect the other parent’s parental rights and responsibilities and right to privacy
  • whether the parents have agreed, in whole or in part, on how to implement a new parenting plan
  • the geographic distance between the parents’ residences
  • the parents’ willingness and ability to communicate, cooperate, or agree on the child’s needs, and
  • whether there’s a history of domestic violence in the case.

At the conclusion of the case, the judge will write a detailed order with findings about each of the factors based on the evidence presented at trial. The order will explain how each factor led to the judge’s conclusions and to the allocation of custody and visitation, and will become part of the overall parenting plan.

Modification of Custody and Visitation

Even though the court will give you a “final” custody and visitation order, you may find that your circumstances later change in such a way that the original order no longer works for you and your children. If that happens, you’ll have to file a motion to modify the existing order. Unless it’s an emergency, the judge will normally make you wait a while between the issuance of the final order and filing a motion for a change of custody.

If you go to court and ask to change custody from joint to sole, you will have to prove to the court that there’s been a “substantial and material” change in circumstances since the last custody order, that this change is harming the child, and that joint custody is no longer in the child's best interests.

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