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Child custody is one of the most sensitive and contentious matters in a divorce. 

When trying to seek a specific custody outcome for you and your child, it is critical to understand the court’s point of view and how they determine whether an arrangement might be in the child’s best interests. The wishes of the child may also come into play, particularly once the child reaches 14 years of age.

If you are entering a divorce or have an upcoming proceeding involving decisions as to child custody, you should contact an experienced New Mexico child custody attorney to learn about the strategies and documentation you may need to assert your own position. 

New Mexico Financial & Family Law is here to assist you. We have a history of working closely with our clients and providing them with the resources needed to thoroughly reinforce their position, such as by working with licensed therapists who can fully evaluate the child’s personal wishes.

You can schedule your consultation today when you call us at (505) 503-1637 or contact us online.

How Does New Mexico Determine Custody?

What is the Difference Between Physical and Legal Custody?

In New Mexico, the courts distinguish between physical custody and legal custody. 

Physical custody, referred to as a “timeshare” arrangement in New Mexico, involves the residence of the child, their living arrangements, visitation schedules, and how parents will handle periods of responsibility where they are directly supervising the child.

Legal custody, which New Mexico refers to as just “custody,” involves the rights of parents to make major decisions in the child’s life, including what schools they will attend, significant activities they will participate in, the religion they will practice, and what medical decisions will be made.

Child May Assert Their Own Preference Starting at Age 14

When evaluating a child’s best interests, the New Mexico court will give the child an opportunity to be heard on their own preferences for a custody arrangement. 

At a young age, this information is obtained through a private discussion with the judge. A third party may also be present, who is typically a licensed therapist. The judge will attempt to understand the child’s wishes as well as the reasoning behind them. For instance, if a child declares that they “get along better” with their father, the judge will ask them to explain and provide examples.

This discussion plays a role in the court’s decisions, but the court ultimately decides what is in the child’s own best interests — at least until the child reaches 14 years of age.

At 14, the child’s input is weighed more heavily, and the court will not decide contrary to the child’s wishes unless they can provide a sound justification for doing so in the child’s best interests.

New Mexico law (§ 40-4-9 B) states that: “If the minor is fourteen years of age or older, the court shall consider the desires of the minor as to with whom he wishes to live before awarding custody of such minor.”

Grandparents’ Rights to Visitation

Grandparents’ rights are seldom taken into consideration in a custody arrangement except in situations where the grandparents played a significant role in raising the child.

When Custody Might Be Awarded to a Non-Parent

New Mexico courts will not award custody to a non-parent party — either adoptive or biological — except in a situation where both parents are found to be unfit.

Why Do New Mexico Courts Prefer Awarding Joint Custody?

The most common form of custody in the state of New Mexico is joint legal custody. This is where the children live with one parent (residential custodian) while the other parent has visitation rights. With Joint Legal Custody, both parents make decisions on behalf of the children concerning health, education, religion, and general welfare.

Joint physical custody, often referred to as shared parenting, is when the child resides with both parents for a significant amount of time. This arrangement does not always work out to be an exact 50/50 split. In order for this type of situation to work, there must be cooperation on both sides. The parents would also have to live in close proximity as not to affect the child’s schooling. A few years ago there was a trend towards awarding this type of custody, however recently it has been determined that this may not be in the best interest of the child.

New Mexico courts have a strong preference for awarding joint custody in both the physical and legal sense. But they will first consider the best interests of the child before deciding on an ultimate custody arrangement following divorce. They also may not grant perfectly equal 50/50 physical custody, especially if it is not feasible and could disrupt schooling or other aspects of the child’s life.

What Factors Does the Court Look at When Weighing a Child Custody Arrangement?

The court will look at several factors when deciding whether an arrangement is in the child’s best interests and whether it can satisfy all involved parties’ wishes in an amicable way.

  • 40-4-9 “Standards for the determination of child custody; hearing” states the court will weigh the following factors when evaluating a custody arrangement:
  1. The wishes of the child’s parent or parents as to his custody;
  2. The wishes of the child as to his custodian;
  3. The interaction and interrelationship of the child with his parents, his siblings, and any other person who may significantly affect the child’s best interest;
  4. The child’s adjustment to his home, school, and community; and
  5. The mental and physical health of all individuals involved.

Sole Custody Arrangements Are Rare in New Mexico

Sole legal custody is when one parent has the right to make all the legal decisions regarding issues such as health, education, general welfare, and religion. This type of custody is not very common anymore in the state of New Mexico.

Most people feel more comfortable with the concepts of which parent should have primary custody, and when the other parent should have visitation. Neither term is technically accurate when the divorce decree awards joint custody, as it does in most cases. 

The courts may award sole custody (which means the sole right to make decisions) with the other parent having visitation, or even supervised visitation, in unique cases where the parents are unable to communicate sufficiently to co-parent, where one parent cannot be trusted to make good decisions for the child, where one parent has a current substance abuse problem, where one parent is incarcerated, or where there has been abuse or neglect of the child.

Seeking a Modification to a Child Custody Arrangement

Courts are often asked to change the parenting arrangement so that one parent has more time with the children or greater latitude with regard to decisions. Sometimes one parent wants to change a joint custody arrangement into a sole custody arrangement or vice versa. Other issues may arise when one parent wants permission to relocate with the child to a different state.

When parents have a “custody” dispute, they are often more accurately disputing issues regarding what the law defines as “periods of responsibility” which means the period when one parent provides for “a child’s physical, developmental and emotional needs, including the decision making required in daily living.” 

In New Mexico, the law presumes that both parents should be involved in the major decisions affecting the children and that each parent will be appropriate to meet a child’s daily needs during the time when that child is with that parent. Even in a joint custody situation, the court might have to place conditions and restrictions on how certain decisions are made given the communication challenges that may exist within the restructured families.

When courts are asked to establish a parenting arrangement for the first time after a divorce or to change a parenting arrangement that is not working, the Court will often use court-appointed expert psychologists to perform a custody evaluation. In a custody evaluation, licensed therapists will conduct several interviews with both parents, the spouses of both parents, the children, and sometimes others who have close personal and emotional bonds with the parents or the children. Personality tests and other psychological tests may be given. The expert will then tender his or her recommendation to the Court.

Alternatively, each party may hire his or her own expert. The matter may then proceed to a trial on the issue of custody-related issues. A full-scale trial of a contested custody case is very stressful and often expensive. Our Albuquerque, New Mexico child custody attorneys are here to assist you in assessing whether custody litigation (trial) is appropriate or whether alternative forms of dispute resolution can be achieved.

Let our New Mexico Attorneys Help you Assert Your Parental Rights, and Be Heard During a Custody Arrangement

Parents cannot rely on the courts to automatically understand their wishes and come to an arrangement that satisfies those wishes as well as the best interests of the child. Parents must make their wishes known, and they are expected to back up those expectations with sound legal reasoning and justification as to how the proposed arrangement is in the child’s best interests.

The attorneys at New Mexico Financial & Family Law have been representing parents in custody matters for over 20 years. We understand the legal grounds and best interests reasoning courts look to when coming to a decision on custody matters. Let us assist you in seeking a child custody arrangement, appealing a decree, or requesting modifications to an existing arrangement.

Speak to a knowledgeable attorney who is ready to listen to your goals and prepared to help those goals become a reality through the court system. Call (505) 503-1637 or contact us online to schedule a no-risk case discussion today.

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