Child Custody In New Mexico

Establishing child custody arrangements is often a very difficult time for children and their families.  One of the most common issues our Albuquerque family law attorneys deal with is Child Custody. Child custody is an issue for many parents in New Mexico, and will likely be a factor for any family in which the parents do not co-habitat (live together). Enlisting the help of an Albuquerque child custody lawyer can help to ease some of the fear and anxiety associated with this process.  We will work hard to protect your child's emotional, mental and physical well-being from start to finish. If you need help with your case, contact us

NM Child Custody Hearing

Legal vs. Physical Custody

Legal Custody refers to the right of a parent or parents to make decisions regarding religion, healthcare, schooling, residence and recreational activities.  The state of New Mexico expects parents to share legal custody and to manage these decisions and responsibilities equally. This is preferable and known as joint custody.   Sometimes due to unfortunate and compelling factors such as drug abuse, child abuse, serious criminal activity and domestic violence the court rules in favor of sole custody where only one parent has the legal authority to make decisions for the child. Neither joint or sole custody has a bearing on how often a parent actually sees the child.

Physical custody refers to the amount of time the child spends with each parent.  Many factors contribute to the decision about physical custody.  These factors can include the parent's mental and physical health, employment demands, and the age of the child.  In short, if you want to have the majority custody of your child, you need to prove that you are the parent who meets their daily needs and that your best suited to do so. In New Mexico, the court takes into consideration the wishes of the child in determining physical custody, especially if the child is 14 or older. However, this does not mean that the child gets the “choose”, rather that the court will take their preference into consideration.

It is always the court's intent to do what is in the best interest of the child.  Because the definition of the best interest of the child is so fluid, and maybe subjective,  you need to make sure that you seek out the services of an experienced child custody lawyer.

Joint Custody in New Mexico

Unless you agree to a time-sharing schedule with the other parent, or there are allegations of abuse, neglect or unsafe conditions, the judge will likely implement a shared custody parenting plan, where parents either split custody 50-50 or one parent will get primary custody and the split could be, for example, 60-40 or 70-30. Judges use the standard of what’s in the best interest of the child when making these determinations. That means they will consider who is the primary caregiver when deciding who will have primary physical custody. If you want to have primary physical custody of your child, you must prove that your the parent who takes care of their daily needs, takes them to school, to doctor’s appointments, helps them with their homework and is involved in their life. The more both parents are involved, the more likely the court will insist on an equal time-sharing schedule. Similarly, if one parent is much more involved or better able to care for the child, the court will likely grant that parent primary physical custody.  However, even if one parent has primary physical custody, legal custody will likely remain 50-50, meaning the custodial parent will still need to consult the other parent on major life decisions.

Sole Custody in New Mexico

As we have said, in New Mexico, family law judges make decisions based on the standard of what is in the best interest of the child. This standard aims to promote a child‘s emotional, mental, and physical wellbeing and development. That means a court will only award sole custody of a child if it advances these goals and determines that such a custody arrangement is in the child’s best interest. Sole custody grants one parent all of the rights and responsibilities of raising the child while taking them away completely to the other parent. Sole custody can be legal, physical, or both. Courts may award sole custody to one parent if the other parent has been determined to be an unfit parent. Remember, just because you disagree with the other parents’ parenting, dating, or lifestyle choices does not mean they are an unfit parent. The courts will be very reluctant to remove a parent's parental rights so the standard for “unfit” is usually pretty high. Generally, a parent can be found to be unfit if they have a (provable)  drug or alcohol addiction or if there are findings of child abuse or neglect. Other factors considered by the court are whether the parent has placed the child in dangerous situations previously or whether the parent has a history of violence or mental instability that would make them a threat to the child or unable to care for them. 


Modification of Child Custody Agreements

While child custody agreements are ment to be permanent, child custody is not always set in stone.  Circumstances often change and the court can modify the order at any point until the child reaches the age of 18.  Usually, in order for the court to grant a modification the following two facts must be found to be true

  • There has been a substantial change of circumstances affecting the welfare of the child.
  • The modification is in the best interest of the child.

Establishing child custody or requesting a modification to an existing order is a very sensitive and personal matter.  Let the experienced child custody lawyers at Genus Law Group work with you to get the best possible outcome for you and your family. Call 505-317-4455, contact us, or chat with someone live using our website chat function to start solving your problem, today!

You can also check out some of our other great content that helps provide New Mexicans with information about how to get divorce, how much a divorce will cost, and how to change your NM child support payments

Anthony Spratley
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Experienced Divorce, Child Custody, and Guardianship Lawyer Serving Albuquerque and Beyond