Child Custody and Relocation in New Mexico

A custody order is rarely permanent, as it can be modified over time. Major changes, including one parent’s relocation, can justify a change in custody.

By , Attorney

Deciding Custody in New Mexico

Like many other states, in New Mexico a child's best interests are central to a custody decision. New Mexico state laws favor a joint custody arrangement whenever possible and as long as it serves a child's best interests. A custody arrangement will designate both physical (where the child lives) and legal (decision-making power on child's behalf) custody. Although joint physical and legal custody is preferred, one parent can have sole physical custody, parents can share legal custody, or one parent may have sole physical and legal custody. Your custody arrangement will depend on your family's unique circumstances.

A judge will consider all factors relevant to a child's best interests. In determining whether a joint custody relationship is appropriate, a judge may also look at:

  • each parent's relationship with the child
  • each parent's ability to meet the child's physical, financial and emotional needs
  • geographical distance between parents
  • each parent's willingness to cooperate with the other
  • each parent's willingness to respect the other parent's rights
  • whether the child would benefit from frequent contact with and influence from both parents, and
  • history of domestic abuse, if any.

While a joint custody arrangement is preferred, joint custody isn't appropriate in every case. A court may change an existing joint custody arrangement if one parent moves out of state or other circumstances occur that make joint custody impossible.

Can I Modify Custody If My Ex Relocates?

A judge won't modify an existing custody arrangement unless there's been substantial and material change in circumstances that affects a child's best interests and overall well-being. One parent's move won't automatically justify a change in custody. For example, if one parent moves to a new neighborhood in the same town, it would be difficult to prove how this relocation would adversely impact the child. However, in one New Mexico case, a mother's spiteful move from New Mexico to California necessitated a change to custody.

In this case, the child's mother had primary physical and legal custody following the couple's divorce. The mother harbored a lot of anger toward her ex and decided to move with the child to California to limit the father's time with his child. As a result, the court awarded the father custody because the mother's move would severely impact his time with the child and was motivated solely by the desire to interfere with his parent-child relationship.

How Will a Judge Decide a Relocation Case?

When parents share custody and one parent decides to relocate, the relocating parent must provide written notice at least 30 days before the proposed move. At this point, the non-moving parent may file an objection to the relocation and a judge will hold a hearing to determine if custody should be adjusted.

Both parents will need to testify at a custody proceeding. A judge will also review evidence regarding the parent's reasons for the move, whether the planned move is in good faith, how a relocation would interfere with the other parent's visitation, the child's adjustment to their current community, the benefits of the relocation for the child, the child's relationship with both parents, and any other relevant factors.

When a child reaches age 14 in New Mexico, a judge may also consider the child's wishes regarding relocation. In one New Mexico case, a judge switched custody following a mother's move to California. Although the mother previously had custody of the child, the court determined that her move would substantially impair the child's relationship with the father. The mother had no reasons for moving other than to get away from the child's father. Because the child enjoyed a close relationship with her dad, the mother had historically tried to prevent visitation, and the child was established in her community in New Mexico, the court awarded custody to the child's father.

In another New Mexico case, the mother was able to keep custody even though she planned to move to California with her fiancé and the children. This case was different because the mother had a close relationship her kids, the mother allowed the father substantial visits with the kids, and it would be in the children's best interests to remain with their mother since she had been their primary caregiver.

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