Custody means the legal right to participate in major decisions affecting a child.
“Custody” is a term that has a general meaning and a specific legal meaning that are very different under New Mexico law. When people think of the parent who has “custody,” they mean the parent who cares for the child most often. However, the term “custody” has a particular legal meaning under the law which means the right to participate in major decisions affecting the child, such as which schools to attend, the child’s religion, which activities the child participates in, and medical treatment. In New Mexico, most divorced parents have “joint legal custody” of their children, even if one parent lives out of state or is only minimally involved in the child’s life. Contact the New Mexico Financial and Family Law lead by Don Harris for all New Mexico child custody issues.
New Mexico Courts’ Involvement in Child Custody
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 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. If you have child custody issues, contact the New Mexico Financial and Family Law for a consultation on all New Mexico Child custody law issues.
Most people feel more comfortable with the concepts of which parent should have primary custody, and when the other parent should have visitation, although neither term is technically accurate when the divorce decree awards joint custody, as it does in most cases. Although, 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, or where there has been abuse or neglect of the child.
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 a 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. Contact the New Mexico Financial and Family Law to assist you in assessing whether custody litigation (trial) is appropriate or whether alternative forms of dispute resolution can be achieved.
Types of Child Custody in New Mexico Divorces
There are two basic issues in regards to custody:
Physical or residential custody – Which parent the children will live with. This parent is referred to as the Residential Custodian.
Legal custody – who will make the decisions on behalf of the children concerning health, education, religion, and general welfare.
The most common form of custody 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 the decisions on behalf of the children concerning health, education, religion, and general welfare.
Joint physical custody, often referred to as shared parenting, it 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.
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.
When the divorce is finalized both physical (residential) and legal custody will be determined.
How New Mexico Financial and Family Law Can Help You In Child Custody Issues
At New Mexico Financial and Family Law, we try to avoid unnecessary litigation, and try to help our clients resolve their disputes in the least stressful way possible. Ideally, the lawyers in the case should be assisting the parents and the children to restructure their lives in a predictable manner. However, if one of the parties will not be rational or reasonable, New Mexico Financial and Family Law is prepared to assist you in court proceedings to protect your rights and gain what is most important for the wellbeing and safety of your children.