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During a divorce, many parents feel as if they are the only person capable of being responsible for their children. Acting on this notion, they will request to receive sole custody of their children and seek to prevent the other parent from being involved in the child’s life. This arrangement is possible in New Mexico, but the state also has a policy in place stating that joint custody is assumed to be the best situation for a child. It is only under extreme circumstances, when contact or influence from a parent poses a threat to a child’s well-being, that the courts will be willing to grant sole custody to a parent.

Fighting for sole custody, therefore, is difficult in New Mexico unless there is clear and compelling evidence that the other parent is unfit. Even in situations where a judge is willing to grant sole legal custody, meaning only one parent has the right to make life decisions for the children, they may still seek to grant visitation to the other parent as part of the timesharing agreement.

If you are concerned about your children’s well-being, and you feel that sole custody is the only situation that would be appropriate, speak to a New Mexico child custody attorney as soon as you can. With your attorney’s help, you can begin building a case and gathering evidence with the intention of showing that the other parent is unfit and that sharing custody could ultimately be harmful to your children.

Custody (Legal Custody) vs. Timesharing (Physical Custody)

The state of New Mexico uses the term “custody” to refer to the concept of “legal custody” that is used by others in casual terms or in some family law jurisdictions.

“Custody”, therefore, refers to a parent’s ability to make major decisions in the child’s life. This can include what school they attend, what doctors they will see, what medical decisions will be made, what religion they may follow, and other factors.

The state uses the term “timesharing” to refer to what others might call “physical custody”. As part of the divorce decree, a parenting plan will have to be approved along with a timesharing agreement and schedule. These documents will determine when and how often a child is in the physical care of each parent.

It may be possible in some situations for a parent to be awarded custody but not timesharing or vice-versa. When talking about “sole custody”, though, most parents are typically wishing to be the only guardian and person with custodial rights over their child. However, some parents want sole custodial rights and for the other parent to not have pre-arranged times for visitation.

A family court will grant sole custody and no timesharing at its discretion and usually only based on evidence that shared custody and visitation could directly put a child in harm’s way.

Seeking Sole Custody

As stated above, the presumption by the courts when going into most New Mexico divorce cases is that shared custody is the best situation for the health, safety, and well-being of a child. Past experience and psychological studies have shown that having a parent forcibly removed from the life of their child can have lasting detrimental effects. Even if a parent disagrees with the other parent’s decisions or lifestyle, the court will approve of shared custody as long as the other parent isn’t putting the children in danger, threatening their well-being, or leading an actively dangerous lifestyle.

With that said, there may be situations where a parent can actively cause harm by having an influence on the child’s life. This often relates less to the decisions they can make as a custodial parent and more to the general way they treat their child and play a part in the child’s life. In situations where a parent is physically or emotionally abusive, for example, they may make contrarian or inconvenient choices related to schooling solely for the purpose of exerting control.

The most common situations where a family law court will view shared custody as unacceptable involve a parent that:

  • Has substance abuse issues, to the point they are unfit to be responsible for a child
  • Has been physically, emotionally, or sexually abusive to the children
  • Has a record of convictions for violent or abusive tendencies that can indicate they are likely to cause harm to their children
  • Has no interest in being a part of the child’s life

Sometimes, courts will grant sole custody to one parent because the parents are so incapable of getting along and making decisions together, that the court has to assign all decision-making to one parent.  Obviously, the courts do not favor this and desire for parents to seek to “co-parent” as an initial matter. However, that can be impossible on a case-by-case basis–there could be mental illness, past abuse, or other factors that make cooperation between parents impossible.

In all cases, the parent seeking sole custody has the burden of proof placed upon them to provide evidence as to why shared custody would not be in the children’s best interests. A history of domestic abuse convictions, for example, could support that argument. Evidence that the parent abuses drugs or have allowed the children to come in harm’s way because of their neglect may also be seen as relevant.

Ultimately, sole custody is awarded on a case-by-case basis and typically only when another parent has revealed themselves to be completely unfit. It may require some thorough investigation and legal understanding to put together a case for sole custody in situations where a parent’s shady past is not well documented.

Timesharing May Be Granted to Non-Custodial Parents

A family law court can agree to sole custody but still see no compelling legal reason that a parent would be barred from seeing their children on a regular basis. In other words, it is possible for a parent to receive sole custody but still be ordered to put their child in the other parent’s care from time to time.

For some parents, this arrangement might be acceptable. However, if the other parent is completely unfit and untrustworthy to the point that they cannot spend time with their children unsupervised, then the court may bar visitation in addition to granting sole custody.

Once more, the burden of proof is on the parent seeking to prevent visitation to provide evidence that the other parent cannot safely supervise the children on their own. Evidence of abuse, violent behaviors, extreme substance dependency, or harmful neglect is often expected in these situations. Otherwise, the presiding judge may assume that a parent is capable of having their children in their care for at least a few days each month, which they will hope has the effect of maintaining a healthy relationship.

A Child’s Preferences and Testimony Can Matter, Especially at Ages 14+

Children’s own preferences can influence a judge’s willingness to grant sole custody, in some cases. This is especially true if the child has reached age 14 or older, at which point the court will view them as having the capacity to make their own decisions, to an extent.

When having a child provide their own statements, a judge will be careful to watch out for signs of influence from one parent or the other, however. The judge will work with child psychological professionals to obtain what is hopefully valid testimony and a clear picture of why a child may not want to see a parent or may feel unsafe or uncomfortable in their care.

Parents should be careful to have open and honest conversations with their children in order to understand their own perspectives, wants, needs, and wishes — while at the same time making sure to not try to persuade or influence the child in ways that could make a judge suspicious. When a child’s ideas and opinions voiced in their statements seem genuinely like their own, the presiding judge will be likely to heed the child’s preferences.

Ensuring Sole Custody Requires Proof That a Parent Is Unfit or That Joint Custody is Unworkable

In sum, New Mexico family courts will default to shared custody and regular timesharing unless they are presented with sufficient evidence that doing so is not in the interest of the children’s health, safety, and emotional well-being. Either one parent must be shown to be unfit, or no joint-decision-making arrangement is possible.  Judges presiding over these cases are often keen to give parents a chance to reform or at the very least learn how to be more responsible. It is only when a parent can provide specific and compelling evidence that shared custody would very likely lead to harm or constant discord that a court will think otherwise.

Building these cases can be difficult, especially if the other parent wants to fight you every step of the way. As an experienced family law firm, New Mexico Financial & Family Law has seen many cases like these, in which one parent anxiously hopes they can keep their children safe from their ex. We work diligently to surface the legal merits of your case while gathering evidence to support your assertions. Our main priority is that you and your family can be safe, happy, and well, so let us assist you in seeking the best outcome for everyone involved.

Learn more about seeking sole custody during a no-obligation case review when you call (505) 503-1637 or contact us online to schedule an appointment.

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