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Legal Information: New Mexico

New Mexico Custody

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January 5, 2024

What is custody?

Custody in New Mexico is the right to make major decisions about your child, like where your child lives, goes to school, what kind of health care s/he receives, and what kind of religious training s/he attends.1

Physical custody is the physical care and supervision of a child (under 18 years of age).2

1 N.M. Stat. § 40-4-9.1(L)(2)
2 N.M. Stat. § 40-10A-102(14)

What is sole custody?

Sole custody is when an order of the court awards custody of a child to one parent.1 When each parent wants sole custody, one of the factors the judge will consider is which parent is more likely to allow the child frequent and continuing contact with the non-custodial parent, without intrusion.2 You can read about the other factors a judge will consider when deciding custody in How will a judge make a decision about custody?

There is a preference for joint custody rather than sole custody in New Mexico.3

1 N.M. Stat. § 40-4-9.1(L)(8)
2 N.M. Stat. § 40-4-9.1(B)(4-5)
3 N.M. Stat. § 40-4-9.1(A)

What is joint custody?

Joint custody means that you share custody responsibilities with the other parent. In New Mexico, joint custody means that:

Joint custody does not necessarily mean that a child’s time is divided equally or that the parents share financial responsibilities equally.2 There is a preference for joint custody rather than sole custody in New Mexico.3

1 N.M. Stat. § 40-4-9.1(J)
2 N.M. Stat. § 40-4-9.1(L)(4)
3 N.M. Stat. § 40-4-9.1(A)

What is a parenting plan?

A parenting plan is a document approved by the court when the court awards joint custody that sets out the responsibilities of each parent. Usually, a parenting plan will include:

  • a division of the child’s time and care into periods of responsibility for each parent,
  • statements regarding the child’s religion, education, child care, medical care, dental care, and recreational activities,
  • designation of specific decision making responsibilities,
  • ways for the parents to communicate with one another,
  • transportation of the child,
  • ways to make decisions in the future and resolve disputes, and
  • other statements regarding the welfare of the child to help clarify the parenting plan and make it easier to follow.1

1 N.M. Stat. § 40-4-9.1(F)

What is mediation?

Mediation is when a neutral third party helps people communicate in the hope that the two parties can come to an agreement. When mediation is used in a custody case, the mediator will try to bring you and the other parent to an agreement about custody and visitation that is in the child’s best interest.1

1 N.M. Stat. § 40-4-8(B)(1)

What is binding arbitration?

Binding arbitration is an out-of-court proceeding in which parties agree to have one or more arbitrators hear specific issues within a custody, visitation, or time-sharing case. An arbitrator could be an experienced attorney or another licensed and experienced professional who is knowledgeable on custody issues. This is a voluntary process. However, once the parties agree to binding arbitration, they have to participate in the process and are bound to the order issued by the arbitrator. 1

The judge would enforce the arbitrator’s order in the same way that s/he would enforce an order issued in court. A judge can only vacate an arbitrator’s order of custody, time-sharing, or visitation if s/he believes circumstances have changed so drastically that the order is no longer in the best interests of the child or will cause harm to the child.2

1 N.M. Stat. § 40-4-7.2(A)(2), (B), (C), (D)
2 N.M. Stat. § 40-4-7.2(R), (T)