Legal Information: New Mexico

Custody

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Updated: 
December 27, 2021

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.

If the other parent and I make an agreement about custody, will the judge accept our agreement?

If you and the other parent make an agreement about temporary or final custody, it will be attached to and filed with the official petition for custody. You and the other parent might also make an agreement while the custody case is pending, The judge will generally enter an order that will grant whatever you and the other parent have agreed upon, unless the agreement is not in the child’s best interests.1

1 N.M. Stat. § 40-4-9.1(D)

Who can file for custody?

New Mexico law says there is a 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:

  • a family member of the child;
  • 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;
    • 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;
  • 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-5(A)

How will a judge make a decision about custody?

When making a decision about custody of a child who is 14 years of age or older, a judge will consider the wishes of the child when deciding custody.1

If a child is under 14 years of age, a judge will consider the best interests of the child. A judge will consider all relevant factors, including but not limited to:

  • the wishes of the parents;
  • the wishes of the child;
  • the relationship the child has with his/her parents, siblings, and any other person significantly affecting the child’s best interests;
  • the child’s adjustment to his/her home, school, and community; and
  • the mental and physical health of the children and the parties involved.2

If the judge is going to consider the child’s wishes, whatever the age of the child, the child will testify in private, in the judge’s chambers, with only the judge, the child, and a court reporter present.3

In addition, New Mexico law prefers that parents share joint custody of children. When deciding whether joint custody is in the best interests of a child, the judge will consider:

  • all of the factors mentioned above; and
  • the following additional factors:
    • whether the child has a close relationship with each parent;
    • if each parent is able to provide adequate care for the child;
    • whether the parents are willing to accept all of the responsibilities of parenting, including picking up the child and dropping off the child as needed;
    • whether the child can maintain healthy relationships with both parents through consistent, meaningful contact;
    • whether the child’s development will benefit from contact with both parents;
    • whether each parent is able to allow the other parent to provide care for the child without interfering with his/her parenting time;
    • how suitable the parenting plan is to joint custody;
    • how far apart the parents live from one another;
    • whether the parents are willing to communicate and cooperate on issues that involve the child; and
    • whether a judge in this case or another case has made a determination that one of the parties seeking custody has committed domestic violence or child abuse against the other party, the child, or another household member.4

1 N.M. Stat. § 40-4-9(B)
2 N.M. Stat. § 40-4-9(A)
3 N.M. Stat. § 40-4-9(C)
4 N.M. Stat. § 40-4-9.1(B)

Can an abusive parent get custody or visitation?

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 my child was conceived from rape, can the offender’s parental rights be terminated?

The parental rights of a rapist can be terminated at the request of the victim if:

  1. the abuser was convicted of rape (“criminal sexual penetration”); and
  2. the judge determines by clear and convincing evidence that the child is the result of that rape.1

If the child is an American Indian child, aside from proving the reason to terminate the parental rights, the requirements of the Indian Child Welfare Act of 1978 have to be met.2

1 N.M. Stat. § 40-16-1(A)
2 N.M. Stat. § 40-16-1(B)

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.

Can I get temporary custody as part of my protection order (for domestic violence) against the other parent?

If you get a protection order due to domestic violence, the order may include temporary custody of your minor children. The protection order can order that the abuser has no contact with the children, or it can arrange for a way for the abuser to have some contact.1 Be sure to tell the judge that you want temporary custody during your protection order hearing so that the judge can take your request into consideration.

1 N.M. Stat. § ​40-13-5(A)

Can grandparents get visitation?

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)

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