New Mexico child custody law defines the term “custody” as the authority and responsibility to make major decisions in a child’s best interests in the areas of residence, medical and dental treatment, education or child care, religion, and recreation. (N.M.S.A. 1978, §40-4-9.1 (L)(2).)
At its core, custody involves the concepts of “physical custody” and “legal custody”. The “residence” referred to in the above definition relates to where the child is going to live. This is generally referred to as “physical custody”. Decision-making for the other items mentioned in the custody definition is generally referred to as “legal custody”.
When discussing child custody in New Mexico, it’s crucial to remember that at the heart of every custody case is one overarching principle: the final custody arrangement must be in the best interests of the child.
When handling a custody matter, judges begin with a presumption that “joint custody” (awarding custody to both parents) is in a child’s best interest. (N.M.S.A. 1978, §40-4-9.1 (A).) That’s because maintaining bonds with both parents is ordinarily beneficial to the child's welfare. "Joint custody" laws in New Mexico state that:
The “periods of responsibility” mentioned above refers to those times when the child is staying with a parent. But be aware that just because custody is “joint”, that doesn’t mean the child has to spend an equal amount of time with each parent. (N.M.S.A. 1978, §40-4-9 (L) (4).) For example, if one parent lives far away from the child’s school district, it might make sense for the child to live with that parent only during the summer and extended school breaks.
In a joint custody arrangement, the parents must submit a “parenting plan” to the court. In New Mexico, the term parenting plan refers to a document that sets out the parents’ individual and joint responsibilities relating to their child. (N.M.S.A. 1978, §40-4-9 (L) (6).)
If parents can agree on a custody arrangement, the court should accept it, unless it’s not in the child’s best interest. (N.M.S.A. 1978, §40-4-9.1 (D).) If they can’t agree, the court will send them to mediation, if feasible, to try to amicably resolve the dispute. (N.M.S.A. 1978, §40-4-9.1 (G).)
If a court doesn’t believe that joint custody is appropriate, it can award “sole custody” to one of the parents (known as the “custodial parent”). But note that if one parent has sole custody, it doesn’t mean the other parent is shut out of the child’s life. New Mexico law provides that the non-custodial parent should have visitation rights. There isn’t one fixed visitation arrangement. It can vary with each family’s circumstances. A classic visitation setup is that the non-custodial parent has every other weekend with the child, and perhaps sees the child one or two evenings a week. But parents can usually get as creative as they want, as long as what they agree on is in the child’s best interest.
There can be cases where it wouldn’t be safe for a child to spend time alone with a non-custodial parent. You might see this in situations where that parent has been guilty of child abuse. Perhaps the parent has an anger-control problem, or maybe untreated substance abuse issues exist. In these situations, a court can order "supervised visitation". These visits are often conducted at state-approved facilities, staffed with trained personnel.
You should note that wrongfully withholding visitation from a parent can have serious consequences.
An additional thing to remember is that the court can’t give custody preference to a parent based exclusively on the parent’s gender. (N.M.S.A. 1978, §40-4-9.1 (C).) This provision was likely enacted to dispel past assumptions that a child would be better off with its mother. Be aware that a parent being in the military can impact custody.
If you’re wondering how to file for custody in New Mexico, you’ll get the process started by submitting a written petition with your local district court. Of course, if you’re involved in a divorce, the court will address custody as part of the divorce case. The New Mexico court website has forms for various types of family-related matters.
You’ve seen several references to the term “the best interests of the child.” This phrase isn’t some abstract concept. Rather, the law gives judges specific guidelines to determine whether a custody arrangement is in the child’s best interest. Some of the factors a judge will look at are:
Although there’s a presumption that joint custody is in a child’s best interest, that doesn’t mean it’s warranted in every case. When deciding whether to award joint custody, the law gives judges additional “best interest” factors to consider. So, in this context, a court will assess:
Definitely in some cases; possibly in others. As seen in the best interests of the child guidelines above, a child’s wishes is one of the factors a court can consider. But if a child is 14-years-old or older, the court must consider the child’s preference. (N.M.S.A. 1978, §40-4-9 (B).)
There are two things to be aware of here. First, although judges have to take a 14-year-old’s wishes into consideration, they don’t have to abide by those wishes. As we’ve seen throughout this article, if judges don’t feel a request is in a child’s best interest, they won’t order it. Second, the judge can consider a child’s wishes even if the child is under 14. In that scenario, it’s normally incumbent on the judge to determine whether the child has the ability to make a sound judgment. It basically boils down to the child’s level of maturity.
A judge will also want to assess whether a child’s expressed preference is based on a parent’s undue influence. So a court is likely to discount a child’s wishes if it determines that one parent has been disparaging the other in front of the child, or has attempted to bribe the child, such as with promises of gifts.
In terms of how a child goes about expressing an opinion to the court, judges try to avoid having children testify in open court. Being placed in that environment can be frightening and stressful. 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 (office). A court reporter will be present to transcribe the interview. (N.M.S.A. 1978, §40-4-9 (C).)
In evaluating a child's wishes, a judge may choose to enlist the assistance of trained professionals, such as a psychologist.
In order to alter a custody order, you’d have to file a motion (written request) with the court. Under N.M.S.A. 1978, §40-4-7 (G), a court can modify a custody order whenever circumstances make such a change proper.
That said, there are specific rules for dealing with joint custody. If there’s an order in place that doesn’t provide for joint custody, and a parent is now seeking joint custody, the court won’t grant that request unless there’s been a “substantial and material change in circumstances” since the current custody order went into effect. That change would have had to affect the child’s welfare in such a way that it convinces the judge that now awarding joint custody is in the best interests of the child.
That same reasoning also works in reverse, where a parent is looking to terminate joint custody. That parent will have to prove to the court that there’s been a substantial and material change in circumstances, affecting the child’s welfare in such a way that joint custody is no longer in the child’s best interest. (N.M.S.A. 1978, §40-4-9.1 (A).)
There are any number of reasons why a parent might ask for a modification. For example, perhaps the parent has to move out of state because of an employment change. Or maybe a parent has become disabled, and abiding by the terms of the current custody order would pose a major hardship.