Divorce is difficult and painful, and one of the most difficult elements is the question of custody arrangements for children. If parents aren’t able to agree on how to share time with their children, then they must turn to the courts for a custody decision.
Similar to other states, New Mexico courts use a “best interests of the child” standard to determine custody. (N.M.S.A. 1978, § 40-4-9.1.) Judges begin with a presumption that joint custody is in a child’s best interest, because maintaining bonds with both parents can help children cope with their parents’ permanent separation.
Joint custody is not, however, awarded automatically. If there is an existing custody arrangement that is working, the court will usually leave it in place even if one parent has sole custody. Custody arrangements can be modified if a “substantial and material change” occurs. A small change in lifestyle or circumstance does not justify a custody modification — it must be a significant change, like a parent who moves out of state or loses a job.
New Mexico courts are directed by law to consider a number of factors to evaluate the best interests of a child in a custody decision. First, courts will examine fundamental concerns, including the nature of the relationship between the child and each parent, each parent’s capability to provide for the child’s needs, the willingness of each parent to take on their full parenting duty, and whether either parent has a history of domestic abuse toward the child or another member of the household.
Courts will also examine each parent’s ability to communicate and cooperate with the other parent. Examples of these factors include whether a child can develop a relationship with a parent without intrusion from the other parent and whether the parents can agree on issues regarding the child’s care.
Courts will also examine practical considerations such as how far apart the parents live and whether any parenting plans previously agreed to by the parents are actually suitable to a joint custody arrangement.
New Mexico courts are restricted from making custody decisions on the basis of gender. The child’s best interests are the only thing that a judge may consider.
If the parents themselves agree about how they want to share custody, then the court should honor that agreement as long as it is in the child’s best interest. If a court orders joint custody, the judge may specify when both parents must consent to certain life decisions. Whether the parents share joint custody or one parent has sole custody and the other visitation, in general the court will order that both parents have complete access to a child’s school and medical records.
Finally, New Mexico law requires that a judge explain the reasons for a custody decision; it is not enough for a court to simply say that it is not in a child’s best interest to award custody a certain way.
Ideally, parents will consider the best interests of their children and arrive at a workable custody arrangement themselves, without the need for court intervention. If they are able to reach an agreement, the court should honor it so long as it considers the agreement to be in the child’s best interests.