How Domestic Violence Affects Child Custody in New Mexico

Learn how domestic abuse impacts child custody decisions in New Mexico.

This article explains how the occurrence of domestic violence impacts a court's determination of which parent should have custody of a child in New Mexico. If you are a victim of domestic violence, there are a number of organizations that can help you get safe and help you secure your legal rights. The New Mexico Coalition Against Domestic Violence website has a list of local providers. You can also contact the National Domestic Violence Hotline.

How the Court Determines Custody

In New Mexico, if you and your child's other parent can't agree on how much time your child should spend with each of you (visitation) and who should make decisions about your child (custody), then the court will do it for you. To make these decisions, the court will listen to evidence from both you and the other parent to determine what is in "the best interest of the child."

However, New Mexico is unique in that it presumes in every case that it is in the child's best interest to grant joint legal custody to both parents. New Mexico also presumes in every case that it is in the best interest of the child to grant as much visitation as possible to both parents. If you disagree and don't want to share joint custody or don't want the other parent to have significant visitation, then you have to present enough evidence to convince the court to order sole custody or limited visitation.

To determine what arrangements are in the best interests of a child, the court must consider all important facts, including, but not limited to:

  • the parents' wishes
  • the child' s wishes
  • the child's interaction with each parent, siblings, and other significant people in the child's life
  • the child's adjustment to home, school, and community
  • the mental and physical health of each parent and the child
  • each parent's capacity to provide adequate care for the child
  • each parent's willingness to ensure frequent contact between the child and the other parent
  • each parent's willingness to allow the other parent to care for the child without intrusion
  • each parent's willingness and ability to communicate, cooperate or agree on issues regarding the child's needs
  • the geographic distance between the parents' homes, and
  • any finding that either parent has engaged in domestic abuse.

If the child is over age 14, the child's opinion about custody and visitation is given more weight by the court in making a determination. Furthermore, the court can consider any other facts relevant to determining custody and visitation (N.M. Stat. Ann. § 40-4-9).

For more information about child custody in New Mexico, read the articles Timeshare and Custody in New Mexico and Custody in New Mexico: The Best Interest of the Child.

The Complexities of Domestic Violence

Domestic violence is a factor that the court considers when making a custody determination. But what is domestic violence?

Domestic violence is a pattern of abusive behavior in a family, household, or other personal relationship used by one person to gain power and control over another person. Domestic violence is also more complex than just hitting. Domestic violence includes behaviors such as:

  • verbal abuse (like shouting, yelling, or name calling)
  • physical violence (like hitting, slapping, or choking)
  • emotional abuse (including behaviors that make you feel afraid or unimportant)
  • economic abuse (like controlling all of the household finances), and
  • psychological abuse (like intimidation and threats).

In New Mexico, domestic violence is called "domestic abuse." According the statute, domestic abuse includes any of the following incidents "by a household member against another household member:"

  • physical harm
  • severe emotional distress
  • bodily injury or assault
  • a threat causing imminent fear of bodily injury
  • criminal trespass
  • criminal damage to property
  • repeatedly driving by a residence or workplace
  • telephone harassment, or
  • harm or threatened harm to children.

Domestic abuse also includes stalking and sexual assault by anyone, not just a household member.

"Household member" means more than people who currently live together. Household member includes spouses, former spouses, parents, present or former step parents, grandparents, children, stepchildren, grandchild, co-parents of a child or people who are dating or formerly dated (N.M. Stat. Ann. § 40-13-2).

In New Mexico, if you are the victim of domestic violence, you can file a "Petition for an Order of Protection" at the district court in the county in which you live. Protective orders help keep you safe by limiting your abuser's contact with you and prohibiting your abuser from doing anything harmful to you, like harassing, stalking, or assaulting you. Forms and instructions to obtain a protective order are available on the New Mexico Supreme Court website.

Domestic Violence and Custody

In New Mexico, the court must consider any incident of domestic violence when making a custody determination. However, if you are the one alleging your child's other parent committed some sort of domestic violence, whether against you, your child, or someone else, you have the burden of proving that it happened.

Furthermore, even when there has been some domestic violence between the parents, New Mexico law still presumes that joint legal custody and significant visitation between the alleged abuser and the child is in the child's best interest. This presumption can only be overcome if you can prove that an order of joint custody would somehow expose you, your child, or some other household member to danger.

Even if you can convince the court to grant you sole custody, the court will most likely still grant the other parent significant visitation. In certain circumstances, the court can order special arrangements for the parents to communicate about the child and exchange the child for parenting time. For example, the court may limit telephone communication between the parents. The court may also order exchanges of the child to occur in a public place, at a supervised exchange location (if one is available in your area), or even at a police station to prevent further violence.

Supervised or restricted visitation

When a court believes that a child's physical or emotional health is in danger, a judge might order that visitation between the parent and child occur only under special circumstances. In cases where the court believes visitation with an abusive parent could endanger the child, a judge can order "supervised visitation," which is visitation that only takes place in a supervised setting, where a professional can observe the parent-child interaction and ensure the child's wellbeing. The court might also order a third party, like a family member or friend, to supervise the visitation. Only in extreme cases of abuse will the court order no visitation between a parent and child.

In New Mexico, if domestic violence is an issue in your case, the court can also order both you and the other parent to engage in counseling services before the court makes any decisions in your case.

If you have questions about domestic violence and child custody, click here to contact a local family law attorney.

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