What is the difference between legal custody and physical custody?
Like most other states, New Mexico provides legal distinctions for what kinds of parental rights a parent will preserve following a finalized divorce. These legal rights can be separated into two main categories:
- Legal custody — Simply referred to as “child custody” in New Mexico, this right allows a parent to have a legal say in decisions in the child’s life, including those involving healthcare, schooling, religion, and extracurriculars
- Physical custody — The amount of time the child will spend in the physical presence and under the care of each parent, referred to in New Mexico as a “parenting plan” and also a “timeshare arrangement”
New Mexico family courts prioritize giving parents joint legal custody (N.M.A.S. §40-4-9.1) and also splitting up timesharing between the parents to the extent reasonably possible. Parents will have to come to an agreement regarding the ultimate parenting plan and the visitation schedule created as part of timesharing. Each parent is also responsible for arguing why their preferred plan is in the child’s best interests. Otherwise, the court will be reluctant to consent to it as part of the divorce decree.
For any questions regarding custody, visitation, and the rights of each parent to have either, it is imperative to refer to an experienced New Mexico divorce and child custody lawyer. The decisions made will have a huge impact on the parent’s life and the life of their child, so it is critical that the parent understands what agreements to propose and how to negotiate to seek the best outcome for the entire family.
New Mexico Refers to Legal Custody as Just “Custody”
One confusing aspect of divorce in New Mexico is that the term “custody” is never used in legal documentation to refer to the time spent in a parent’s care. Instead, “custody” wholly refers to what other states and legal resources call “legal custody.”
A parent with legal custody has the right to be consulted any time there is a major decision to be made in the child’s life. Each time, both parents have to be able to come to an agreement that is in the best interests of the child. These agreements can involve any number of sensitive matters, including what schools the child will attend, what doctors they will go to, and how particular medical decisions will be made should the child need treatment. Parents with custody may also make decisions regarding things like consenting to trips abroad, participating in certain extracurriculars, and what religion they will practice.
Custody decisions are based on a wide variety of factors, including:
- The relationship between the child and each parent
- The ability of a parent to care for the child and be responsible for them
- Whether the child will benefit from having continued, regular contact with the parent
- How able each parent is to respect the privacy and agency of the other, especially when it comes to sharing parenting time
- Whether an equitable parenting plan can be developed that meets the child’s needs
- How far away each parent is from one another
- Whether a parent has been convicted of abuse, domestic violence, or other related criminal activities that could indicate the potential to cause harm to the child
Generally, the court will aim to give both parents joint custody. A parent who opposes this arrangement must usually speak up and object to joint custody and provide demonstrable reasons that the other parent is incapable of playing a significant role in the life of their child for the court to grant sole custody.
Physical Custody Refers to the Parenting Plan, Timeshare, and Visitation in New Mexico
“Physical custody” refers to moments when the child is in the physical care of the parent. Once more, New Mexico courts will assume that the child will benefit from having both parents physically present in their life. Even in cases where sole custody is awarded, the court may anticipate that the child will still regularly see and visit the other parent. Also once more, if a parent strongly objects to regular visitation or any visitation, they must provide legally compelling reasons for making this request.
In New Mexico, physical custody is guided by two main documents:
- A parenting plan, which generally describes how the parents will handle decisions in the child’s life, the expected schedule for the child, contingency plans for medical emergencies, and other broad factors. This is basically a document that should serve as a reference guide for how the parents will raise the child together.
- A timeshare schedule, which actually details the time the child will spend with each parent as well as when/how transfers will occur and any special dates like extended family visits during school breaks
The aim of both the parenting plan and the timeshare agreement is for the child to have all of the support and experiences they need to thrive, with minimal disruptions to their life. If parents live far away, for example, the preferred timeshare arrangement may involve one parent seeing their child just a few days a month, even if they technically have joint custody.
Get Help and Legal Representation During Child Custody Matters
New Mexico Financial & Family Law works closely with parents and families to seek the best outcome for everyone involved. We not only have experience with navigating hundreds of divorce cases through the courts; many of us are also parents ourselves, and we understand the emotional aspects that can come with major decisions regarding child custody and visitation.
When it comes to what the courts want, it’s evidence that a particular decision or arrangement is in a child’s best interests. Let us help you determine what that might mean and how you can negotiate for your preferred custody arrangement with your other parent by speaking with a child custody lawyer near you.
You can schedule a no-risk, no-obligation case review and consultation with an attorney now when you call (505) 503-1637 or contact us online.