When parents decide to end their marriage, a big portion of the divorce process revolves around custody of the children. Figuring out the best way to maintain a healthy, nurturing environment for the children is usually a top priority for both parents in a divorce, and the court system takes the safety and wellbeing of children involved in such cases very seriously.
Whenever possible, the court prefers to assign both legal and physical custody to both parents in as equal measures as possible, unless there are circumstances making it less appropriate to do so.
There are several arrangements that can be made in the divorce process, which will determine important factors like sole or joint conservatorship, residence, and visitation. In many cases, these arrangements can be agreed on outside of the courtroom through mediation, which often helps the divorcing parents feel the situation is fairer than if a judge were to make such an important and personal determination for them.
A divorce can be one of the most stressful things a parent can go through, and it can be hard to face the idea of spending less time with your children because of it. A successful mediation or a successful child custody case in court can mean you don’t have to lose out on your role as a parent in your children’s lives just because of a divorce. Call New Mexico Financial & Family Law today at (505) 503-1637 or contact us online to schedule a consultation with an experienced Albuquerque divorce attorney to go over the details of your case and determine a suitable route forward.
Child Custody Broken Down
Child custody is broken into two factors: Legal and Physical.
Legal Custody, known in New Mexico as just “custody,” refers to the guardian that has the authority to make important decisions for a child, including medical and dental needs, education, religious upbringing, extracurricular activities, as well as others.
Physical or Residential Custody refers to where and with whom the child will be living. This is generally what most people think of when they hear the term ‘custody,’ as it refers to who the child is spending physical time with.
In New Mexico, physical custody arrangements may be known as a “timeshare” or “time-sharing,” and the visitation schedule will be determined as part of the overall parenting plan that must be submitted and approved of as part of the divorce decree.
Joint Custody Prioritized When Possible
In mediation and in the courtroom, both physical and legal custody can be granted to a sole parent or to both the parents together.
Generally, most judges and mediations tend to aim for joint custody. New Mexico law assumes that “joint custody is best for children,” even though that may not always mean an exact 50-50 breakdown of parenting responsibilities.
In some cases, parents are unable to agree on many important decisions in their children’s lives, meaning joint legal custody may not be a workable option. In these instances, mediation is likely to fail, as well, and a judge may have to grant one parent sole custody, especially if it appears one of the two parents is being unreasonable. Other reasons sole custodianship may be granted are when one parent is neglectful, criminal, or abusive, lives far away, or doesn’t spend time with the child or get involved with their daily lives.
When sole physical custody is granted, it’s usually because of some of these reasons as well. Depending on the circumstances prior to the divorce, the parent without sole custody often is allowed regularly scheduled time with the children. Visitation schedules can be defined in mediation or in court and usually follow a set pattern for weekdays, weekends, holidays, and vacations.
Only very rarely is there a situation where one parent is granted sole custody and the other isn’t given at least some visitation right. The parent may be abusive, have a lack of interest in seeing their child, be incarcerated, have a substance abuse problem, or otherwise acts in a way deemed “unfit” in the eyes of the court.
In order for the decisions made during mediation to become legally enforceable, a parenting agreement known as the parenting plan must be written and signed by a judge. This contract contains the rules that parents must follow or otherwise run the risk of violating their divorce order. The following are some of the decisions that a parenting agreement might include:
- What kind of custody will the parents have (joint legal, sole legal)?
- Which parent has primary residential custody?
- How will the plan accommodate the child’s schooling and the priority activities in their life, such as sports or hobbies?
- A complete parenting schedule, including provisions for changing the schedule in the event a child, is ill or cancellation is needed.
- Who will pick up and drop off the children when they are exchanged between parenting times?
- Includes any agreement between the parents regarding education and religious upbringing.
- How will the parents share information the children bring home from school or activities?
- Includes the agreement regarding attendance at conferences, special events. or functions involving the children (such as parent-teacher conferences, graduations, sacraments, birthday recitals, ball games, etc).
- Details the agreement between the parents on how they will handle attendance at family functions that take place during the year, including weddings, parties, communions, and the like.
- Can the parents travel outside of the United States with the children, and if so, are there any restrictions to foreign travel? This provision will specify who is responsible for the passports, and what are the notice requirements between the parents.
- How will the children be able to communicate with the other parent and on what schedule (will the children have cellular phones, be able to email or text, etc)?
- Are there any agreed-upon restrictions to relocation with the children by the primary residential custodial parent? Are there any other restrictions the parents have agreed upon? As an example: who else will or will not be caring for the children for babysitting arrangements.
How a Judge Decides Child Custody
When parents are unable to come to an agreement about child custody outside of the courtroom, a judge will have to make the final decision. If the child is 14 years of age or older, the judge is likely to take their wishes very seriously. Younger than 14, a judge will make their determination based on what they believe is in the child’s best interest.
Some of the factors that a judge will consider when determining what is in a child’s best interest include:
- The relationship between the child and each parent
- The child’s comfort and adjustment to their current home and school
- The health of the children and parents
- The wishes of the children and parents
As explained before, New Mexico law prefers joint custody arrangements whenever possible, so unless there is a very good reason for sole legal or physical custody, a judge is likely to determine that a joint custody order is best.
Get Help With Your Child Custody Case Today
The effects of a child custody decision will impact your relationship with your child until they turn 18.
When you want the best for your children and don’t want the divorce to mean a downturn in the quality of their lives, seeking the help of an experienced child custody attorney can help boost your chances at a fair arrangement.
Whether you’re looking to start a court-adjacent mediation or ensuring your rights as a parent are well-defended, New Mexico Financial & Family Law can help. Call us today at (505) 503-1637 or contact us online.