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). This article will discuss New Mexico Child Custody Laws and how they are usually applied in divorce or custody cases. Please note that there is no substitute for personalized legal advice, so if you have a divorce or custody issue here in New Mexico, chat with a live representative now, contact us or call 505.317.4455 to set up your consultation. 

New Mexico family, sharing joint custody

Legal vs Physical Custody

Child custody consists of both physical custody and legal custody. Physical custody has to do with where the child resides and this can be in the form of shared or sole physical custody. With shared physical custody, the child lives with both parents and typically the court orders the parents to submit a parenting plan. A parenting plan is a detailed outline of a time-sharing schedule that states when the child spends time with each parent and for how long. In cases where parents are unable to agree on a custody arrangement, mediation may be necessary as well as the intervention of professionals who can speak on behalf of the child or place the child where his/her best interest is in mind. Ultimately the court will determine where the child should live and whether or not both parents have the privilege of caring for the child. Additionally, shared physical custody does not always mean half and half, so there may be limitations to what you can and cannot do about your child’s living situation.  

Furthermore, legal custody refers to the right that parents have to make decisions over important matters such as medical care, education, recreation, and religion. Unlike with physical custody, legal custody is usually granted jointly to both parents. That is not to say that joint legal custody will always be awarded to parents. Sole legal custody is granted to a parent if the other parent lives far away, is violent or neglectful, or not involved in the child’s life. In some cases, however, both parents may agree that it is best for one parent to make everyday decisions while the other still has the right to participate in legal decisions.  


New Mexico is a 50-50 State

It's important to remember that New Mexico is considered a “50-50 state”. This means that New Mexico family court judges prefer for both parents to be actively involved in their child’s life. They will try to make custody arrangements as equal as possible, although the circumstances of the case may lead to one parent having primary physical custody. NM family court judges will not deny one parent access to the child or consider sole custody unless there is a legitimate reason for doing so. Generally, there have to be serious concerns about abuse, neglect, or substance abuse for a judge to consider keeping the child away from one parent. Even then, most judges will order reintegration therapy or supervised visitations in order to keep the parental relationship intact. This being said, it is not unusual for parties to stipulate (agree) that it’s better for the kids to spend the majority of their time with one parent. Likewise, concerns about irresponsible behavior or drug abuse that can be substantiated might warrant a change in custody. We discuss the factors that go into a custody determination in a later section.


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. 


Parenting Plans 

A parenting plan is one of the most vital agreements to put in place when facing a divorce with children or a custody case in New Mexico. Even in the most amicable divorces, or even if you were never married to the other parent, it is essential to have a parenting plan in place. The parenting plan helps to determine major details of your child’s living arrangements, schooling, and how decisions that impact their future will be made. If you don’t have one in place, there is nothing outlying custody, so you will have limited recourse in the event the other parent chooses to take the child or otherwise break a custody agreement. Since a parenting plan can be complex and often has a huge effect on your child's life and family dynamic, it is recommended that you have an experienced family law attorney assist you with setting it up or modifying it.


1. Legal custody details

2. Physical custody details

3. Time-sharing schedule including vacations and holidays

4. Health care details

5. Education plan

6. Extracurricular activities

7. Child care

8. Child support details

9. College expense responsibilities

10.Resolving parents discrepancies

Custody Modifications

According to New Mexico law, a child custody and visitation agreement can be modified if there's a "material and substantial change" that affects the children. What constitutes a material and substantial change depends on the unique circumstances of you, the children, and the other parent. How you change your child’s custody or visitation depends on whether you and the other parent agree on the circumstances. If both parents approve the proposed changes, you can file a motion and proposed order with the court. The court reviews your proposal and issues a final order.

  • Maybe you want more or less time with your child.

  • You or the other parent are moving somewhere else.

  • You have a new job.

  • The other parent is showing signs of being neglectful or abusive.

If a parent contests the changes, the parent requesting the modification should file a motion with the court. The court reviews the motion and decides whether an amendment should be made. Alternatively, parents who disagree may request mediation services through the court so these significant issues impacting their children's well-being can be decided in a fair and just manner.


How Custody is Determined in New Mexico

Now the courts go off of the principle of “the child’s best interest” which means the goal is to make sure the child is nurtured with happiness, security, mental health, and emotional development. The courts gauge that by looking at how engaged you are in your child’s life with activities, school, daycare, etc. If the father is the primary custodial parent of the child then he can qualify for receiving child support from the other parent. This support is directly for providing a home, food, and clothing for the child.In short, New Mexico courts use the standard of “best interest of the child” when making custody decisions. That's why it's best that you prove you are the person best suited to take care of your child’s day to day needs.

Is New Mexico a “Mother’s State”?

Mothers and fathers have the exact same rights when it comes to divorce and custody in New Mexico, however, there are some biases that remain in the courtroom towards mothers. The reason this bias started was from a court precedent called “the tender year’s doctrine”. This legal principle started in the 19th century and it favored the mother having the child in full custody until the child is four. This principle is no longer instated in the courts but the bias sometimes still remains. That means fathers need to prove they should be the primary care giver if that is the case.


How Can Our NM Custody Attorneys Help You

Here at Genus Law Group, we understand that your children mean everything to you. Whether you are fighting for sole or partial custody, creating a parenting plan, or trying to modify your current custody arrangement, our lawyers can help you get your desired outcome. Our attorneys help all New Mexico residents with their divorce, custody, alimony, or guardianship matters. Contact us at 505.317.4455 or chat with someone on our online chat box to schedule a consultation now! 

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