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First, you should sit with a New Mexico family law attorney and discuss your reasons for seeking sole custody. Many people have valid reasons for doing so, but the New Mexico courts usually favor joint custody unless there is a strong reason not to.

In some situations, you may be unlikely to gain sole custody, but you may have more time with the child.

While mediation is often successful, sometimes the parties can’t agree on child custody. If this is the case, the court will hear arguments from both spouses and decide with the child’s best interests in mind.

Factors That Lead to Sole Custody in New Mexico

There are many issues the judge will consider when deciding how to divide custody. It’s also helpful to understand the two kinds of custody: Physical and legal.

Physical custody refers to where the child lives or which parent they live with. Legal custody indicates who will make critical decisions for the child until they become an adult.

This might include deciding where the child goes to school, what extracurricular activities they can attend, what kind of healthcare they will have, where they will go to church or what religion they will practice, etc.

In joint custody, the parents don’t necessarily have to share time with the child equally. Sometimes, it may be better for everyone involved if the child lives with one parent more often.

However, both parties must consult each other on all major decisions in these situations. One parent should not make all the decisions alone.

Even in cases where one parent receives sole physical custody, the other parent usually has visitation rights and a say in making decisions for the child. The judge may order supervised visits if the other parent has been abusive toward the child.

Here are some of the issues the court will consider if you are seeking sole custody:

Consistency and Predictability

Judges usually favor the parent who can give the child a more stable upbringing.

If your spouse constantly travels for work, often has an unpredictable schedule, and spent little time with the child while you were married, it may be easier to convince the judge that the child would be better off living with you.

On the other hand, if you were the one who was always traveling and canceling plans last minute, the judge may be reluctant to give you sole custody unless the other parent is deemed highly irresponsible.

Geographic Factors

Another part of consistency is keeping the child’s life the same as much as possible after a divorce.

For many children, their parents’ divorce is a major upheaval. Having other constants can help reduce the stress and anxiety accompanying this upheaval.

All other things being equal, most judges will support a situation that allows the child to stay in their school district and remain close to their friends.

If you seek sole custody because you want to move across the country and take the child with you, this will probably be difficult to sell to the judge.

The Existing Relationship Between Parent and Child

This also comes back to consistency and predictability. Except in extreme situations, the court is unlikely to give sole custody to a parent who barely knows the child.

Sometimes, for various reasons, a parent who has been out of the child’s life for years may resurface and decide to make up for the lost time. In some situations, the returned parent may decide they want sole custody of the child.

While a judge may be inclined to set up a joint custody arrangement, they are unlikely to give sole custody to a parent still working to establish a relationship with the youth without a good reason.


A judge is more likely to grant sole physical custody to a parent they believe will cooperate with visitation schedules. If the other parent argues in court that you will try interfering with their visitation, it could damage your case, so be civil when talking with them.

Each Parent’s Ability to Fully Care for the Child and Take on All Parenting Responsibilities

Multiple factors go into this issue.

At a basic level, the judge will want to know that you are capable of typical parenting tasks like putting the child to bed, feeding them, handling misbehavior, caring for a sick child, keeping up with regular healthcare, helping with homework, etc.

The list of reasons that a person might struggle with parenting responsibilities is long, and many of the considerations also relate to consistency and predictability. For instance, working long hours at your job or traveling a lot may interfere with caring for your child.

Being in the military doesn’t necessarily mean you can’t be an effective parent, but if you are in the military, the judge will want to know if you spend a lot of time deployed and, if so, what is your childcare plan (who will watch your child while you’re away from home).

If the child spends most of the time with one of your relatives while you’re overseas, the judge may prefer to give physical custody to the other parent and set up a visitation schedule for you.

Sometimes, one parent may have difficulties with their physical or mental health or substance use. Most of the time, the court will not disqualify a parent from having custody simply because of a medical issue or disability unless it prevents them from parenting effectively.

As long as your health problems don’t harm the child and you can care for them, this shouldn’t be a problem.

If you have recent substance use issues, the judge will probably want to know how long you’ve been sober and what steps you have taken to stay that way. They may require you to attend a rehabilitation program or counseling sessions.

The same is true if the other parent has difficulties with substance use. A judge may grant you a temporary custody order while asking the other parent to address their addiction.

If the other parent doesn’t follow the judge’s instructions, they may be more inclined to grant you sole custody.

Domestic Violence and Abuse

Both physical and emotional abuse can do serious, long-term damage to children, affecting their physical and mental health even much later in life.

Still, if you seek sole custody because the other parent was abusive, the court will want you to provide proof because abusers rarely admit to being abusive.

Your lawyer will help you gather as much evidence as possible, including medical records, police reports, witness statements, and possibly a statement from your child.

The Child’s Wishes

Although not the sole consideration, the judge may want to hear from the child if they are old enough/mature enough to explain who they want to live with and why.

How to File for Sole Custody in New Mexico

If you are not currently married to the child’s other parent, filing for sole custody begins with submitting a written petition to your local district court. If you are divorcing the child’s other parent, custody will be dealt with as part of the divorce.

In many cases, the judge will ask both parents to attempt to reach a custody agreement in mediation.

Both parties’ lawyers and a trained mediator will work with you and your spouse to help you develop a parenting plan that will settle custody issues, decision-making, support, and more.

How Do I Get Help With Seeking Sole Custody in New Mexico?

Please contact New Mexico Family & Financial Law for a consultation as soon as possible. Call (505) 503-1637 today.

The other parent may already be talking to their own lawyer. You need an experienced family law attorney to investigate, find as much evidence in your favor as possible, and fight for your rights in court.

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