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)

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)

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)

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.

New Mexico law says there is an assumption (“presumption”) that joint custody between the parents is in the child’s best interest when a court is making a ruling about custody for the first time.¹

If the parents are unwilling or unable to have custody, then the judge may grant custody to a non-parent. When custody is granted to a non-parent, it is called “kinship guardianship.” The judge can grant kinship guardianship to:

• an adult who has been living with and caring for the child, if that adult is:
  • a relative of the child;
  • a godparent;
  • a member of the child’s tribe or clan; or
  • an adult with whom the child has a significant bond;
• a caregiver chosen by a parent in writing, as long as the writing shows that the parent understands:
  • the purpose and effect of the guardianship;
  • that the parent has the right to be served with any petitions that are filed relating to the child; and
  • that the parent may appear in court to challenge the guardianship;
• a caregiver with whom the child has been placed by the Children, Youth and Families Department; or
• if the child is 14 years old or older, a caregiver who:
  
  • is 21 years old or older; and
  • has been nominated by the child.²

¹ N.M. Stat. § 40-4-9.1(A)
² N.M. Stat. §§ 40-10B-3; 40-10B-5(A)

A parent who committed violence can get custody and/or visitation as long as certain protections are put in place.

One of the factors that a judge has to consider in New Mexico when deciding custody or visitation is whether the parent has committed abuse against the child, the other parent, or another household member. This decision about whether abuse was committed can be made by the judge in your custody case or by a judge in another case, such as a protection order case. In cases where the judge finds that abuse was committed, the custody or visitation order must clearly protect the abused child, other parent, or household member.However, it doesn’t necessarily mean that a parent who committed violence will be denied custody or visitation altogether.¹

¹ N.M. Stat. § 40-4-9.1(B)(9)

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.

New Mexico has a “Grandparent’s Visitation Privileges” law that allows a grandparent to petition for visitation in certain circumstances. Under this law, a grandparent can petition for visitation if any of the following are true:

• the child’s parents are divorced and visitation would not interfere with the child’s education or the parent’s visitation;
• one or both of the child’s parents are deceased;
• the child is less than six years of age and lived with the grandparent for at least three months;
• the child is older than six years of age and lived with the grandparent for at least six months; or
• the child has been adopted by a relative, a person chosen in a deceased parent’s will, or a godparent.¹

When a grandparent files for visitation, a judge is allowed to order mediation to see if the parties might be able to work out an agreement for grandparent visitation.²

If an agreement is not worked out through mediation, the judge can grant visitation if the s/he decides that visitation with the grandparent is in the child’s best interest.³ To decide if the grandparent should have visitation rights, the judge has to asses:

• the best interests of the child;
• the prior interaction between the child and the grandparent;
• the past and present relationship between the parents and the grandparent;
• any visitation arrangements that were in place before the petition was filed;
• the effect the visitation will have on the child;
• whether the grandparent has any prior convictions for abuse or neglect; and
• if the grandparent has been a full-time caretaker for the child for a significant period.⁴

If the judge decides visitation is not in the child’s best interest and denies the request for visitation, s/he might still order some other reasonable form of contact like, mail, telephone, or some other means.³

¹ N.M. Stat. § 40-9-2(A)-(E)
² N.M. Stat. § 40-9-2(H)
³ N.M. Stat. § 40-9-2(I)
⁴ N.M. Stat. § 40-9-2(G)

Generally, you can file for custody only in the “home state” of the child. (There are exceptions to the “home state” rule – see below.)

The “home state” is the state where the child has lived with a parent or a person acting as a parent for at least six consecutive months. If your child is less than six months old, the “home state” is the state where the child has lived from birth. (Temporary absence from the state does not change anything.)

If you and your child recently moved to a new state, you usually cannot file for custody in that new state until you have lived there for at least six months. Until then, the other parent can start a custody action in the state where your child most recently lived for at least six months.¹

There are exceptions to the “home state rule.” In some cases, you can file for custody in a state where the child and at least one parent have “significant connections,” and where there is evidence available about the child’s care, protection, training, and personal relationships. Usually, however, you can only do this if there is no home state or if the home state has agreed to let another state decide the case (have jurisdiction).² This can be complicated, and if you think this applies to your situation, please talk to a lawyer in both states about this.

¹ N.M. Stat. § 40-10A-201(a)(1)
² N.M. Stat. § 40-10A-201(a)(2)

If you are uncomfortable with the abuser being alone with your child or if you feel unsafe when exchanging the child for visitation, you may request the services of the Safe Exchange & Supervised Visitation (SESV) program. The judge can appoint an SESV program to:

1. stay with the child for a short period of time while waiting to be picked up by the other parent; or
2. supervise visits between the parent(s) and child.¹

The judge will order the participation in the SESV program if s/he believes it is in the best interest of the child. If ordered, both parents may have to pay the cost of this program on a sliding fee scale that is based on their ability to pay for the service.²

However, if there is no current court case, please get legal advice before you start a court case to ask for a safe exchange or supervised visitation. 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, these safety measures are only temporary. Although the exact visitation order will vary by state, county, or judge, the judge might order a professional to observe the other parent during a certain amount of visits 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.

To find out what may be best in your situation, please go to NM Finding a Lawyer to seek out legal advice.

¹ N.M. Stat. § 40-12-5.1(A)
² N.M. Stat. § 40-12-5.1(C)

In New Mexico, if one of the parties tells the judge that domestic violence or child abuse has occurred, or if the judge thinks that it has occurred, then the judge does not have to order mediation. In situations where there is domestic violence, the judge can order mediation if:

1. the domestic violence victim is the one who requests mediation and the mediator is informed of the domestic violence; or
2. all of the following three things happen:

• the mediator has substantial training on domestic violence or child abuse;
• the victim is able to negotiate with the abuser without suffering from an imbalance of power as a result of the abuser; and
• the mediation process has safeguards in place to protect against an imbalance in power caused by abuse.¹

¹ N.M. Stat. § 40-4-8(B)(1)(a)-(b)

If you have a final custody order already in place, you can petition the judge to make changes to it (modify it) only if there has been a substantial change in circumstances since the custody order was issued. The judge may modify the custody order if, based on these new circumstances, s/he feels that the modification would be in the child’s best interests.¹

¹ N.M. Stat. § 40-4-9.1(A)

Generally, a parent can take his/her kids out of the state for a brief trip as long as there is no order prohibiting it and so long as it does not interfere with the other parent’s visitation rights. However, if you are uncertain whether a planned trip may violate your custody order, please consult with a lawyer before leaving.

Moving out of state, however, is a different story. When the parents have joint custody, and one of them wants to move out of state, the moving parent has to give the other parent 30 days’ written notice. The notice must state when the parent is going to move and where they are moving. If the other parent does not agree with the move, s/he may be able to file a petition with the court that issued the original order to ask that the other parent not be allowed to move, especially if the parent that is moving is the custodial parent.¹

New Mexico law provides a process for parents with joint custody to resolve disagreements about major life decisions, like moving to another state. As explained in What happens if I have joint custody with the other parent but we can’t agree about a major life decision?, parents can decide major life decisions by:

• agreement between the parties;
• using counseling or mediation services;
• having an arbitrator make a final, binding decision;
• deciding that only one parent or the other will have decision-making authority over that 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.²

¹ N.M. Stat. § 40-4-9.1(J)(4)(a)
² N.M. Stat. § 40-4-9.1(J)(5)

A domestic violence protection order granted by a court in New Mexico that awards custody and visitation (or support) is effective for a fixed term of six months. This term can be extended for another six months if the protected party (the petitioner) shows good cause for the extension. When the protection order expires, the custody provisions also expire.¹

If you currently have temporary custody through a protection order, you may want to talk to a lawyer about filing for custody so that you have a long-term custody order. You can find information about free and paid lawyers on our NM Finding a Lawyer page.

¹ N.M. Stat. § ​40-13-6(C)