What is custody and timesharing?
In New Mexico, every divorce or paternity case must address two different concepts of custody: "legal" and "physical". Most parents are awarded "joint legal custody", which means both parents have the right to participate in making decisions affecting five areas of the child's life: (1) residence; (2) religion; (3) recreation; (4) education or day care; and (5) non-emergency medical decisions, including psychological counseling and orthodontia. There should not be any changes in the major areas until both parents agree on the change or a court-order is entered allowing the change.
"Physical custody" or "visitation" is now called "timesharing" or "periods of responsibility". This concept addresses when the child spends time with each parent. Children generally live primarily with one parent and spend certain periods of time with the other parent. There is no preference under New Mexico law for mothers to automatically get more time with the children. The focus is on which parent has historically been, and presently is, the primary care-taker of the children.
How do I get "sole" custody?
In Bernalillo County (Albuquerque), it is very difficult to get "sole" custody of the children, if the other parent objects. Public policy favors the children having regular access to both parents, and the starting point is for the parents to get "joint legal custody." What is not common is to have a 50-50 timeshare awarded, when the children live approximately equal time in two households.
Most parents who try to get sole custody are really trying to cut out the other parent. There must be extraordinary circumstances for that to happen, such as a documented history of one parent physically or seriously mentally abusing the child. Domestic violence between the parents, alone, is not usually sufficient for the abused parent to get sole custody of the children.
What happens if we can't agree on custody or visitation schedules?
In Bernalillo County (Albuquerque), there is a service affiliated with the court called "Court Clinic" that helps parents address disputes over custody and timesharing. The staff at the Court Clinic are psychologists or psychotherapists (called "clinicians") with a Masters or Doctorate degree and expertise in family counseling. To get your particular child-related dispute brought to the attention of Court Clinic, a document called a "Court Clinic Referral Order" must be signed by the judge, filed with the clerk's office, and delivered to the Court Clinic office. The parents can agree to sign this referral order, or the judge can enter the order over one parent's objection at a hearing.
What does Court Clinic do?
In general, the Court Clinic offers three types of services: mediation, advisory consultation, and priority consultation.
Mediation is often the first step in the Court Clinic. The parents and the clinician meet, without attorneys or the children, to help the parents negotiate an appropriate custody and timesharing schedule, given the children's ages and developmental stages. Mediation does not cost any additional money. Sometimes more than one mediation session is needed to reach a mutually acceptable arrangement. If an agreement is reached by the parents at mediation, the clinician writes up the agreement so that it eventually becomes an order of the court.
If the parents cannot reach an agreement through mediation, then an Advisory Consultation is usually the second step at Court Clinic. The parents have to pay for an Advisory Consultation, on a sliding-scale basis, based on the combined gross income of the parents and the number of children involved. Depending on the circumstances, an Advisory Consultation may cost hundreds or thousands of dollars.
The Advisory Consultation process is very different from mediation. During an Advisory Consultation, the clinician meets with each parent alone, the children, each parent and the children, and any other persons who have a major influence in raising the children, such as step-parents, live-in boyfriends/girlfriends, or grandparents. Sometimes the children's teachers, daycare providers, doctors, or therapists are contacted to obtain their opinion on what makes sense for the children. The parents, and sometimes the children, undergo psychological testing at the beginning of the Advisory Consultation, to determine if there are mental health or substance abuse problems that affect parenting ability. Once the clinician meets with all the persons deemed necessary and psychological testing is completed, a written report is prepared with specific recommendations to the judge on an appropriate custody and timesharing schedule for the children. Such a report can include recommending or requiring the parent(s) to attend parenting education classes, anger management classes, substance abuse counseling, random drug-testing, supervised visits, or any other method to try to make the time the children spend in one parent's care a safe situation.
A Priority Consultation is used in extreme circumstances to establish temporary custody and timesharing schedules. Before the Court will approve a Priority Consultation request, there must be a showing of an immediate threat to the children's physical or mental well-being, or a probability one parent is going to flee with the children. After a Priority Consultation, the parents usually have to participate further in the Court Clinic, either in mediation or a full-blown Advisory Consultation.
What happens if we don't live in Bernalillo and can't use the Court Clinic?
In disputed custody or timesharing situations, parents are not limited to using the Court Clinic. They can hire a private psychologist to perform similar services. A private custody evaluator sometimes offers mediation services before going into a full-blown custody evaluation, but usually the parents are past the necessary open-minded stage for successful compromise by the time they're willing to pay thousands of dollars to hire a custody evaluator.
What is a Guardian ad Litem?
In some cases, the parents are so antagonistic toward each other and have such different opinions on what is best for the children that the judge appoints a separate lawyer to represent the children, called a Guardian ad Litem ("GAL"). The parents pay the GAL's fees as well as their own attorney's fees and the psychologist's fees. The GAL's job is to represent only the children, and not take sides between the parents. The GAL reports on custody and timesharing to the judge, and most judges abide by the GAL's recommendations.
Which timesharing plan is best?
Each family is unique. There are no absolutes in which timesharing arrangement will work best for a particular family. Data from years of following kids has, however, given us some strong guidance as to what works best in minimizing the loss children feel from divorce, supporting sound child development, and maximizing the children's relationship with each parent. The main thing we have learned is that designing a timesharing plan is best done based on the age of the children and the parents' ability to communicate with each other. The other important finding is that how much time a child spends with each parent in a month is not highly related to the quality of the relationship the child develops with that parent. The quality of time spent with each parent turns out to be far more important than the quantity of time.
Developmentally, the following guidelines for timesharing generally make sense:
- Infants need to see both parents at least several times per week, but do not do well in trying to develop a bedtime routine at two different households;
- Preschoolers need to see each parent a couple of times per week and can handle sleeping nights at two households several times per month;
- Young elementary schoolchildren can manage well with plans in which they do not see the other parent for three to five days at a time;
- Children in the latter half of elementary school and adolescents often do well with having full weeks in each household.
Most parents with school-age children wind up with a timesharing plan where the children spend weekdays with one parent, and alternating weekends plus a mid-week visit with the other parent. This keeps the children on a regular routine for school and extracurricular activities. It also allows both parents to have weekend, "fun" time with the children.
