In New Mexico, child custody and custody agreements are usually governed by what’s called a parenting plan. The parenting plan outlines custody, timesharing, pick up and drop off details, holiday and school schedules, child support, and other issues related to raising the children. Typically, the parenting plan is entered in as part of the couple’s divorce and is intended to be a permanent agreement. However, many times parenting plans are created when a non-married couple with children separate, especially if there is joint custody or child support. Furthermore, while the agreement is meant to be permanent, things like custody and child support are always under the jurisdiction of the court and can, therefore, be subject to change. 

This means that you can always petition the court for a modification of the agreement if you need to. Remember that many smaller, though equally important issues like education, religious upbringing, vacations, recreational activities, school activities, and all the other issues are outlined by the plan so changes to these categories often necessitate changes to the parenting plan. 

How Can I Change My Custody Agreement?

Life happens, and an agreement that worked 2 years ago doesn’t always reflect the realities of the present. In New Mexico, if there has been “a significant and material change in circumstances that warrants a modification of custody, and time-sharing” (in accordance with NMSA 1978, § 40-4-9.1.), either parent can file what’s called a Motion to Modify Custody and Time-sharing. This is possible when there has been a major change in the child’s or the parent’s life, and the present time-sharing arrangement is no longer practical or is no longer in the child’s best interests. So what does a “substantial and material change in circumstance” look like? It could be a parent who is moving out of state, relocating back in the state, changing cities,  being released from incarceration, a parent who has recovered from addiction, one who is taking necessary parenting or counseling classes, allegations of abuse or neglect, or any other factor that significantly changes the dynamic of the parent-child relationship or their ability to care for the child.

Unfortunately, there are other more urgent reasons one parent may opt to file a motion to modify custody or even an emergency motion to do so. If the other parent is engaging in erratic or unstable behavior, addicted to drugs or alcohol, convicted of a serious felony or abusive toward the child in any way that threatens their safety, welfare, or best interests – the court will likely grant the motion to modify the present time-sharing arrangement. 

In cases where the parents can work together and communicate effectively, modifying the Parenting Plan is as easy as drafting up the changes and submitting the new Parenting Plan to the district court for approval. Whether or not the parties should get legal assistance in this process will depend on the circumstances. If possible, it is often beneficial to have a custody attorney draft the document to ensure that the wishes of the parties are indeed reflected in the language and that the plan meets the court's requirements If you work with one of Genus Law’s Albuquerque custody attorneys, we will listen to your concerns and wishes, draft a plan that reflects that, and file it with the court and clerk for you.

If one of the parties has suffered a financial setback, they can also modify their child support commitment separately. 


What If I Don’t Have A Parenting Plan/ Custody Agreement?

If you and your ex were never married and you never created a formal parenting plan or custody agreement, you have likely already realized, or soon will that you really do need one. In this situation, the parents have probably never involved the court with their parenting arrangements and the father may or may not have acknowledged paternity, legal, or otherwise. This can create a considerable amount of uncertainty and can leave you and your children dependent on the whims of the other parent. It also severely limits your options in the event of a custody dispute. If at any time if one of the parents withholds the children, for any reason, the police will tell both parents that the matter is outside of their control and there is nothing they can do. This is because the dispute is legally considered a “domestic matter” without a clear court order that governs custody. This means that both parents technically have the same claim to custody so the matter would have to be resolved before a domestic relations judge. Unfortunately, the process of getting a decision can take several weeks or even months. This could mean being without your child for a considerable period of time. 

To resolve the dispute in this situation, the parent seeking custody must file a Petition to Establish Paternity, Custody, Time-sharing, and Child Support. The court will then set a hearing date, requiring both parents to come before the court. At the hearing, the court will determine whether the father is accepting parentage. If parentage is disputed, the court can order a DNA test to be performed. Once parentage has been established, the court will set temporary timesharing and child support. As you can see, it is advisable to either agree to a parenting plan with the other party as soon as you separate, or petition the court for one. If you wait until a custody problem arises, you will be subject to the stress and uncertainty of the above references process, as well as the long wait.

What If I Want To Establish Timesharing or Visitation For The First Time?

If you are trying to establish a relationship with your child for the first time or trying to reestablish that connection, there may be additional steps involved.  New Mexico family law courts prefer to have both parents involved in the child’s life. In most circumstances, they will allow an estranged or absent parent to regain their parental rights as long as they do not present a threat to the child. The process isn’t easy though. Any modification of custody must go through the steps mentioned above to get the court involved with custody, timesharing and child support. However, absent parents should expect to encounter a series of steps, hurdles and jumps to reach their final goal of having more time with their child. Parents that have never established a relationship with a child, or who have been absent from the child’s life for a significant period of time should expect the court to begin with a reintegration plan, where the child slowly transitions into the absent parent’s life. This process generally begins with small periods of supervised visits, often through a third-party agency such as Neutral Corner. Over time and as the relationship grows, the court grants the parent more time with the child, beginning with longer visits, unsupervised visits and working up to overnight visits and then multiple days of visitation. If everything goes ok, this can eventually scale to joint custody or regular timesharing.


Need Help With New Mexico Custody?

Whether your seeking to get sole custody of your child, move out of state with them, or just trying to get more time with your children or your establishing custody and timesharing for the first time, we can help. Genus Law Group’s experienced divorce and custody lawyers only deal with divorce, custody and child support. That means all of our resources, systems, and experiences are geared toward getting the best outcome for you in your New Mexico family law case. Call 505-317-4455 or chat with a real person now with our website chat function to book your case strategy session with Albuquerque’s best custody lawyers.

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