Timeshare and Custody in New Mexico

Find out how courts in New Mexico decide on important issues of time sharing and child custody.

Custody disputes can be some of the most emotionally-charged issues in any divorce case. When it comes to deciding how the kids will divide their time between mom and dad, New Mexico has some relatively unique rules and guidelines compared to other states. This article examines the way family law courts in New Mexico determine how custody and timesharing is awarded and some of the things you should consider before taking on a custody dispute in your own divorce.

What is custody and timesharing?

In New Mexico, as in most states, if a domestic relations case involves kids, it must address the two separate aspects of custody: physical and legal. “Legal custody” is often simply referred to as “custody” and addresses which parent gets to make decisions like where the children live, go to school and obtain health care. Like the majority of states, New Mexico approaches divorce with the assumption that joint legal custody is in the “best interest of the child” in every case. Unlike most states, however, New Mexico requires divorcing parents to enter into a joint custody arrangement in most cases. This means that, unless extraordinary circumstances prevent it, both parents will equally share these types of decision-making powers in the majority of cases.

“Timesharing” refers to the “physical custody” element of custody and describes where the children live and how much time they spend with each parent. New Mexico courts handle timesharing on a case-by-case basis, using a “best interest of the child” standard. Because the “best interest of the child” might mean different things to different people, it can be difficult to reach an agreement on how to divide time fairly.

Do New Mexico courts ever award sole custody?

While it is possible to get sole custody, it is somewhat rare. New Mexico has followed the trend in most states and favors awarding both parents as much physical time with the children as possible. This means the parties will end up with joint legal custody in the majority of divorces.

Because New Mexico is just one of two states in the country that starts off with the presumption that joint legal custody is always best, fighting for sole custody will probably be an uphill battle. Family law courts in New Mexico have granted sole custody in cases where a parent was incarcerated or where one side provided evidence that the other parent had abused the children. Accusing someone of abuse is a serious matter, however, and should never be used as a way to gain leverage in a custody dispute.

While incidents of domestic violence between parents are equally troubling, they are usually not enough to warrant sole custody, as courts place great importance on kids spending time with both mom and dad. In these situations, New Mexico courts are more likely to order the parties to seek family counseling.

How does New Mexico determine child custody arrangements?

Courts in New Mexico use a “best interest of the child” standard to decide how much time children spend with each parent. New Mexico and New Hampshire are the only two states in the country that start out all divorce cases with the assumption that joint legal custody is in the best interest of every child. If you disagree, it’s up to you to convince the court otherwise by presenting enough evidence to support your case.

Some of the factors New Mexico courts consider when deciding what qualifies as the best interest of the child include:

  • the child’s wishes
  • the parents’ wishes
  • the child’s relationship with each parent
  • the child’s relationship with his or her siblings or any other person who might have a significant impact on his or her best interest
  • the child’s adjustment to his or her home, school and community, and
  • the mental and physical health of everyone involved in the case.

If the parents agree, they submit a “parenting plan” to the court for final approval. The “parenting plan” is a restatement of all the custody and timesharing arrangements, including where the children live, who pays child support, how the parents handle transportation, who claims the children for tax purposes, where the children spend holidays, who pays for health care and other important issues.

What happens if we can’t agree?

Depending on where you live, there are a number of different options for getting help with working out your custody dispute. Generally, there are three ways to approach contested child custody cases in New Mexico. Certain counties offer court-sponsored clinics that provide mediation and professional services on a sliding fee scale. You can also ask the court to appoint a "Guardian ad Litem," which is an attorney who acts on behalf of the children and makes a recommendation to the court. Finally, you can hire a private custody evaluation expert, which is by far the most costly method.

The Bernalillo County court clinic

A select number of New Mexico counties offer “court clinics” that provide assistance to families working through custody disputes. These are available in Sandoval and Bernalillo Counties, but most prominent in the Second Judicial District (Albuquerque). One of the advantages of using the court clinic is the reduced cost; fees are assessed on a sliding scale, and families are charged according to income. Staffed by psychologist and professional family counselors, the court clinic offers three phases of intervention.

Many disputes can be resolved through mediation, which is the lowest level of involvement available through the court clinic. At this stage, the parents meet with a counselor or psychologist to attempt to work out their difference in an effort to reach a settlement agreement.

If mediation fails, the next step is an advisory consultation, which involves more in-depth discussions, additional meetings and psychological testing. Because the psychologist will prepare a report recommending a custody and timesharing schedule to the judge overseeing the case, he or she will meet with anyone who has a significant influence over the child, including siblings, teachers, grandparents and stepparents. Advisory consultations are an additional charge and can cost anywhere from hundreds to a few thousand dollars.

In emergency situations, where one parent needs an order for temporary custody due to an abusive or unsafe environment, the court clinic can order a priority consultation. Before the court will approve a priority consultation, the party requesting it must prove that the other parent is going to harm the children or remove them from the jurisdiction without the court’s permission.

Guardian ad Litem

If you don’t live in Bernalillo County, you can ask the court to appoint a Guardian ad Litem. In cases where the parents don’t see eye to eye on what is best for the kids, the judge has the power to assign a lawyer specifically for the children.

The job of the Guardian ad Litem is to look after the best interest of the children by staying neutral and avoiding taking the side of either parent. The Guardian’s responsibilities include interviewing both parents, the children and anyone the Guardian feels is an important influence over the case or the child’s life.

Once the Guardian ad Litem has gathered enough information, he or she writes a report recommending how custody and timesharing should be awarded and submits it to the judge. In most cases, the parents split the cost of the Guardian ad Litem’s fee, which is significantly cheaper than paying for a private custody evaluator or the more advanced steps of the court clinic program.

Private Custody Evaluator

If you live in a county that doesn’t offer a court clinic, or you don’t want to wait for your case to move through the legal system, you can hire a private psychologist to help resolve your custody dispute. These services don’t come cheap, however, and many cases run several thousands of dollars before conflicts are finally settled. In most cases, it’s best to try to work out your differences before resorting to spending hundreds or thousands of dollars on private custody evaluations services.

Resources

New Mexico Second Judicial District Court

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