Here’s what to know if you’re engaged in a child custody action in New Mexico.
- What are the Types of Child Custody in New Mexico?
- Determining Child Custody in New Mexico
- What is New Mexico’s Best Interests of the Child Standard?
- What to Know About Parenting Plans
- How Do I Modify a New Mexico Custody or Visitation Order?
- New Mexico Child Custody FAQs
What are the Types of Child Custody in New Mexico?
New Mexico child custody laws define “custody” as the authority and responsibility to make major decisions in a child’s best interests in residence, medical and dental treatment, education or child care, religion, and recreation.
This is separated into physical custody and legal custody.
Physical custody determines where a child will live after a divorce.
Legal custody determines the child’s upbringing, including medical, religious, education, and other life events.
New Mexico judges begin with a presumption that “joint custody” is in the child’s best interests. The assumption is that the child will benefit from frequent and ongoing contact with both.
New Mexico joint custody laws state that:
- Each parent must have significant, well-defined periods of responsibility for the child
- Each parent must have, and be allowed and expected to carry out responsibility for the child’s financial, physical, emotional, and developmental needs during that parent’s periods of responsibility
- The parents must consult with each other on major decisions involving the child before implementing those decisions
The physical custody “periods of responsibility” are when the child stays with a parent. However, joint custody does not mean that a child spends equal amounts of time with each.
Parenting plans must be submitted to the court to determine how to best decide physical custody according to the individual factors of a case. When a parent lives far away from the other parent, having the child stay with one parent only during the summer and extended school breaks may make sense.
New Mexico courts prefer that parents create a plan to decide optimal physical and legal custody issues based on the child’s best interests. Sometimes, parents will use a mediator or family law attorney to help them draft an agreement that both parties agree on. However, when parents can’t agree, the court will decide on custody issues instead.
If a court doesn’t believe that a joint custody arrangement is appropriate, a judge can award sole custody to one of the parents, known as the custodial parent. However, if one parent is given sole custody, New Mexico law provides that the non-custodial parent will have visitation rights unless there is a compelling reason why visitation should not happen.
That may be due to negligence, substance abuse, domestic violence, or other situations that put a child in potential harm.
Even when these elements are present, a judge may still award visitation. Chances are that it will be supervised visitation. In this case, the visit will be monitored by a relative, family friend, or another third party who will ensure the child is protected during the visit. These visits are also often conducted at state-approved facilities staffed with trained personnel.
Also, New Mexico courts can’t give custody preference to a parent based exclusively on the parent’s gender. Mothers and fathers have equal protection, rights, and responsibilities under state statutes.
Read More: Counseling Children Through Divorce
Determining Child Custody in New Mexico
New Mexico is a 50-50 state. That means that New Mexico family court judges prefer both parents to be actively involved in their child’s life. Judges will try to make custody arrangements as equal as possible, although the circumstances of the case may lead to one parent having primary physical custody.
While judges have considerable discretion in deciding custody, they must apply specific guidelines outlined in New Mexico’s state statutes.
According to the statute, the court can consider the following factors, amongst others:
- The wishes of the child’s parent or parents as to his custody
- The wishes of the child as to his custodian;
- The interaction and interrelationship of the child with his parents, his siblings and any other person who may significantly affect the child’s best interest
- The child’s adjustment to his home, school, and community
- The mental and physical health of all individuals involved
In joint custody cases, judges must also consider the following “best interest” factors.
- Whether the child has established a close relationship with each parent
- If each parent is capable of providing adequate care for the child throughout each period of responsibility, including arranging for the child’s care by others as needed
- Whether each parent is willing to accept all responsibilities of parenting, including a willingness to accept care of the child at specified times and to relinquish care to the other parent at specified times;
- If the child can best maintain and strengthen a relationship with both parents through predictable, frequent contact and whether the child’s development will profit from such involvement and influence from both parents
- Whether each parent can allow the other to provide care without intrusion, that is, to respect the other’s parental rights and responsibilities and right to privacy
- The suitability of a parenting plan for the implementation of joint custody, preferably, although not necessarily, one arrived at through parental agreement;
- Geographic distance between the parents’ residences
- Willingness or ability of the parents to communicate, cooperate or agree on issues regarding the child’s needs; and
- Whether a judicial adjudication has been made in a prior or the present proceeding that either parent or other person seeking custody has engaged in one or more acts of domestic abuse against the child, a parent of the child or other household member
How does the court consider the child’s choice?
The child’s age helps determine how much weight may be given to the child’s preferred choices. If a child is 14 or older, the court must consider their wishes. That does not mean that the child has the final decision. Their input is advisory only. The court will still maintain final decision-making authority.
If the child is under 14 and the judge determines that they are mature enough to make a considered judgment, the court may also consider these preferences. However, the judge must be satisfied that one of the parents has exerted no undue influence on the child.
A judge may seek the assistance of trained professionals, such as a psychologist to evaluate the child’s wishes.
New Mexico law states that whenever a judge takes testimony from a minor child concerning the child’s custodial preference, it should be done in the judge’s chambers to avoid the stress of testifying in open court.
Read More: Pendente Lite: A Complete Guide to Temporary Orders
What is New Mexico’s Best Interests of the Child Standard?
The best interests standard means that all decisions are based on what is best for the child when determining custody. Parent’s desires are secondary. Using the factors above, judges will reach custody decisions that ultimately apply this standard to a final custody order. The same standard also applies to any future modifications as well.
Read More: New Mexico Divorce Guide
What to Know About Parenting Plans
New Mexico courts require parenting plans as part of a custody case. These are detailed instructions about each child’s physical and legal custody are created to avoid future disagreements. As such, they should be as detailed as possible.
To give them more control, courts prefer that parents develop a plan on their own or with the help of a mediator. When parents can’t reach an agreement, the court will step in a have the final say.
Each plan is different based on the individual elements of a case, but at a minimum, a plan should include the following:
- Physical custody details, including the number of overnight visits for each parent.
- Legal custody and how those responsibilities are allocated between parents.
- The manner of exchanging children, including when, where, and time of day
- Transporting children for visitation and other necessary movements
- Holiday and school break schedules
- Vacation and travel approval and advance notifications
- How will a child communicate with both parents
- How is communication between parents handled to avoid disagreements?
- Contact with other family members and friends
- How are tuition, medical costs, school activities, hobbies, and recreational activities expenses handled?
- Child support payment amounts and recourse if a parent falls behind.
- Access to records and information
- Children’s use of technology and online activities
- How to address child discipline and mental health issues
- Guidelines when a new partner is involved
- Grooming and dress guidelines (extreme haircuts, make-up, etc.)
Read More: The Psychological Effects of Divorce on Children (and How to Help Them Cope)
How Do I Modify a New Mexico Custody or Visitation Order?
To modify an existing child custody order, you must file a motion with the court to start the process. Judges will only consider a modification if there has been a significant change in circumstances since the original order was issued. That may be due to a serious health issue, remarriage, job change, relocation that impacts visitation schedules, or other similar events and situations.
If both parents can agree to a change, the agreement needs to be put in writing, signed by both parents, notarized, and filed with the court. If both parents can’t agree, a judge usually will not change a parenting plan until hearing evidence on both sides and then deciding the matter based on what is best for the child.
Courts can hire experts to determine if the modification is warranted. In a custody evaluation, licensed therapists will conduct several interviews with both parents, the spouses of both parents, the children, and sometimes others who have close personal and emotional bonds with the parents or the children.
A judge can appoint a guardian ad litem to represent the child’s interests in the original custody determination and the modification request.
New Mexico Child Custody FAQs
Do grandparents or other third parties have visitation or custody rights?
Grandparents or other relatives can have visitation rights recognized under some circumstances, such as when they raised the child. However, when any person other than a natural or adoptive parent seeks custody of a child, they won’t be awarded custody unless the natural or adoptive parents are found to be unfit.
What happens if a child’s other parent is not doing what the parenting plan says?
When a judge approves a parenting plan, it becomes a court order. A parent who doesn’t follow the parenting plan could be violating a court order.
The non-violating parent can file a Motion to Enforce or Motion for an Order to Show Cause with the court. When the issue is brought before a judge, the judge will decide whether the order has been violated and the consequences for the violating parent. These consequences can include contempt of court charges, fines, penalties, and possibly jail time.
If you are seeking a modification, it is essential to keep following the current order until a new order is put in place.
If a child’s other parent doesn’t pay child support, do they still maintain visitation privileges?
Yes. Child support and visitation are separate issues and do not depend on each other. If one parent doesn’t allow the other parent to visit with the child because child support hasn’t been paid, both parents have violated the judge’s orders.
