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 joint custody?
Joint custody means that you share custody responsibilities with the other parent. In New Mexico, joint custody means that:
- each parent has significant set times when they are responsible for the child;
- each parent is allowed and expected to be responsible for the child’s financial, physical, emotional, and developmental needs; and
- the parents consult each other on major decisions involving the child and reach agreement before making those decisions.1Note: For information on what happens if parents can’t reach an agreement, see “What happens if I have joint custody with the other parent but we can’t agree about a major life decision?”.
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 happens if I have joint custody with the other parent but we can’t agree about a major life decision?
If the parents cannot reach an agreement about a major life decision, they have several ways to resolve the dispute. The parents can decide major life decisions by:
- using counseling or mediation services;
- having an arbitrator make a final, binding decision;
- deciding that only one parent will have decision-making authority over a particular major decision area;
- ending joint custody and giving one parent sole custody;
- referring the dispute to a court master; or
- filing an action with the district court.1
1 N.M. Stat. § 40-4-9.1(J)(5)
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 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 are some pros and cons of starting a custody case?
There are many reasons people choose not to file for custody. Some people decide not to get a custody order because they do not want to get the courts involved. Some parents make an informal agreement that works well for them. Some parents think going to court will provoke the other parent, or they are worried that if they start a custody case, the other parent will suddenly fight for (and get) more custody or visitation rights than they are comfortable with.
However, getting a custody order from a court can give you certain legal rights. Getting a custody order can give you:
- the right to make decisions about your child; and/or
- the right to residency (to have your child live with you).
Without a custody order, it is possible that you may not have these legal rights, even if you are the parent that takes care of the child every day. However, if you file for custody, the other parent may also request these rights and it will be up to the judge to decide.
We strongly recommend talking to a lawyer who can help you think through if filing for custody would be best for you, depending on the facts of your situation. You can find legal help by clicking on the NM Finding a Lawyer page.
Some people think they should file for custody so they can get child support. While custody and child support are related, you do not necessarily need a custody order to get child support. A custody order will not automatically give you child support. For information on filing for child support, you can contact your local courthouse by going to our NM Courthouse Locations page or talk to a lawyer.
Should I start a court case to ask for supervised visitation?
If you are not comfortable with the abuser being alone with your child, you might be thinking about asking the judge to order that visits with your child be supervised. If you are already in court because the abuser filed for visitation or custody, you may not have much to lose by asking that the visits be supervised, if you can present a valid reason for your request (although this may depend on your situation).
However, if there is no current court case, please get legal advice before you start a court case to ask for supervised visits. We strongly recommend that you talk to an attorney who specializes in custody matters to find out what you would have to prove to get the visits supervised and how long supervised visits would last, based on the facts of your case.
In the majority of cases, supervised visits are only a temporary measure. Although the exact visitation order will vary by state, county, or judge, the judge might order a professional to observe the other parent on a certain amount of visits or the visits might be supervised by a relative for a certain amount of time – and if there are no obvious problems, the visits may likely become unsupervised. Oftentimes, at the end of a case, the other parent ends up with more frequent and/or longer visits than s/he had before you went into court or even some form of custody.
In some cases, to protect your child from immediate danger by the abuser, starting a case to ask for custody and supervised visits is appropriate. To find out what may be best in your situation, please go to NM Finding a Lawyer to seek out legal advice.