If you're divorcing or splitting up with your child's other parent, you have a lot of critical questions to answer. Where will your child live? Who will make important decisions about your child's education, health care, and activities? Can you and the other parent work together to meet your child's needs? Here's an overview of how New Mexico law deals with these issues.
There are two different aspects of child custody in New Mexico— legal and physical custody:
In New Mexico, the law presumes that it's in a child's best interests for parents to share joint legal and physical custody, unless the evidence shows otherwise (more on that below). This means that both parents will have:
However, even when parents have joint custody, that doesn't necessarily mean 50/50 physical custody or timeshare. One parent may be designated as the "primary physical custodian," meaning the child lives with that parent most of the time, while still spending a significant amount of time with the other parent.
Also, when it comes to major decisions about the child's life, the judge may spell out the circumstances (if any) when both parents must consent to certain decisions. If they aren't able to agree about changes to the child's life, the parents may need to get outside help, such as mediation or counseling. When that doesn't work, they may then have to seek a change in the current custody arrangement (more on that below). (N.M. Stat. § 40-4-9.1 (2023).)
Although New Mexico courts prefer joint custody, that may not always be best for the child. But even when one parent has sole custody (sometimes called "full custody"), the other parent will almost always have visitation, which could include periods of time when the child lives with the noncustodial parent. (N.M. Stat. § 40-4-9.1 (2023).)
Parents in New Mexico can—and typically do—agree on how they will handle legal custody and time-sharing. They'll need to submit their agreement to the court so that it can be part of an official court order. But judges will approve these agreements unless they aren't in the children's best interests. (N.M. Stat. § 40-4-9.1(D) (2023).)
When parents have agreed on joint custody, they'll need to put all the details in a parenting plan. At a minimum, parenting plans must include a time-sharing schedule. These plans may also include:
(N.M. Stat. § 40-4-9.1(F) (2023).)
When you're having trouble agreeing with your child's other parent about custody and a parenting plan, you can always try custody mediation. But if you haven't reached an agreement by the time you file for divorce in New Mexico, each of you will submit a proposed parenting plan.
The judge will require you to participate in mediation unless it's inappropriate—such as in cases involving domestic violence or child abuse. If mediation doesn't work, the judge will either accept one of your proposed parenting plans or come up with a revised plan that best serves your child. (N.M. Stat. § 40-4-8, 40-4-9.1(F), (G) (2023).)
In New Mexico, parents also have the option of agreeing to binding arbitration on child custody, child support, time-sharing, or visitation (among other issues). (N.M. Stat. § 40-4-7.2 (2023).)
When parents haven't been able to agree on a parenting plan, each of them will submit a proposed plan to the judge, who will review them and either approve one plan, combine them, or revise them as necessary. (N.M. Stat. § 40-4-9.1(F) (2023).)
In New Mexico, as in all states, judges make custody decisions based on what's in the best interests of the child. Judges have a lot of latitude when deciding what's best for the child, but state law does require them to consider certain factors, depending on the circumstances.
In custody cases involving children under age 14, New Mexico law requires judges to consider all factors relevant to the child's best interests including:
(N.M. Stat. § 40-4-9 (2023).)
Judges will take into account the custody wishes of all children, regardless of age. But they must pay particular attention to the preferences of teenagers who are at least 14 years old. Before awarding custody of these older kids, New Mexico law requires judges to consider the teenagers' desires as to which parent they want to live with. That doesn't mean the judge must go along with the teenager's preference if it's not what would be best for the child.
Judges won't require kids to testify in open court (in front of their parents) about their custody preferences. Instead, the judge will meet with a child privately in the chambers (the judge's office). (N.M. Stat. § 40-4-9 (2023).)
New Mexico law spells out additional factors judges must consider when deciding whether joint custody would be in a child's best interest:
(N.M. Stat. § 40-4-9.1(B) (2023).)
Whenever a parent has been guilty of domestic abuse against the child, the other parent, or anyone else living in the household, any custody or visitation orders must include provisions to protect the victim. (N.M. Stat. § 40-4-9.1(B)(9) (2023).)
As a general rule, joint custody is much less likely to work out in situations when there's been domestic violence. But if the abuse was in the past, didn't involve the child, and hasn't been repeated, a judge might allow joint custody as long as there are safety measures in place–such as requiring that the parents exchange their child in a safe place.
A child's needs change over time—what works for a preschooler may not work for a teenager. Similarly, parents' schedules and circumstances change. When a child custody or time-sharing arrangement no longer works for a family, one or both parents may ask the court for a modification.
As with initial custody orders, parents may agree on changes to their custody agreement for the judge to approve. If the parents can't agree, a judge will have to decide on the requested modifications. Under New Mexico law, a judge will not modify custody (changing from joint to sole custody or vice versa) unless the parent who's making the request proves all of the following:
When deciding whether a modification is in the child's best interests, the judge will consider the same custody factors (listed above) that go into an initial custody determination. (N.M. Stat. § 40-4-9.1(A), (D) (2023).)
When a parent plans to move, that could qualify as a major change in the child's life—depending on how far the move will be. As part of the general rule that parents with joint custody consult with each other about major changes to the child's life, New Mexico law requires parents to give each other 30 days' notice before a planned move to another city or state. (N.M. Stat. § 40-4-9.1(J)(4)(a) (2023).)
Then, if the other parent objects to the relocation (and they can't work out an agreement on how the move will affect the current joint custody arrangements), the nonmoving parent may file a request to modify custody under the standards discussed above.
The best way to save yourself time, money, and aggravation is to work with your child's other parent and agree on a parenting plan. You can work with a mediator if you need help reaching an agreement.
Each district court in New Mexico offers free or sliding-scale mediation services in custody cases. Check the "Self-Help" section on your local court's website for more information. You may also apply for Lawyers in the Library, a program that offers free consultations with attorneys who can answer questions about divorce, custody, and child support.
If you can't agree on what's best for your child, you should consider speaking with a lawyer. The stakes in a custody battle are high, and it can be difficult to navigate court without an experienced, local lawyer on your side. Learn more about when to hire a child custody lawyer.