Child custody is the legal term used when a parent or parents have guardianship of a child or children and are responsible for their care, control, and maintenance. 

In marriages, it is assumed that both parents share this responsibility equally. However, when couples separate or divorce, the matter becomes more complex.

Firstly, there are different types of custody in New Mexico (as in other states) and it is important to be clear on the different terms used.

Legal custody refers to the right to make decisions on the upbringing of a child. Physical custody refers to the parent with whom the child resides and spends the most time.

This is an important distinction as with the first term it is possible (and indeed preferable) for both parents to share legal custody but a child cannot live with both parents at the same time.

With joint physical custody, a separation or divorce agreement must include a parenting plan that provides for visitation rights for the parent with whom the child does not live and allow for roughly equal time to be spent with the child. This is in addition to covering all the decision-making responsibilities of each parent.

Agreements need to be clear on both legal and physical custody before the court will be content that the needs of the children have been cared for.

In the case of legal child custody, two types of custody are awarded in New Mexico:

• Joint custody (preferable) – where both parents are equally responsible for the upbringing of the child and make joint decisions on residence, education, health care, dental care, religious upbringing, etc. 
• Sole custody – where one parent is solely responsible for making decisions on the child’s upbringing.

Child custody is treated on a case-by-case basis in New Mexico but the best interests of the child are always the primary concern. The judge will use a strict set of guidelines to help determine the child’s best interests.

When considering legal custody, New Mexico child custody laws follow the assumption that the child’s needs and upbringing are best looked after when both parents are involved in the decision-making process.

The physical custody decision will be based on which parent provides the best environment for the child to spend most of their time in. 

If the court decides that joint physical custody is best for the child, then arrangements will need to be made so that each parent spends approximately equal time with the child.

Often, the arrangement will see the child spend most of the time living with one of the parents while the other parent has significant visitation rights.

In some cases, sole physical custody is granted, meaning that the non-custodial parent has limited access to visit the child – for instance, every other weekend.

The court will review the facts of the case and can consider the following factors before making a final decision:

• The willingness of each parent to accept decision-making responsibilities and to provide for the child’s needs
• The capability of each parent to meet their parenting responsibilities and duty of care
• The level of communication and cooperation between parents
• The nature of the child’s relationship and interactions with each parent and siblings (if applicable)
• The child’s preferences
• The child’s capability to adjust to a new home, school, community, etc.
• The mental and physical health of all individuals involved
• Any history of domestic abuse or criminal behavior in the relationship

With joint physical custody, a parenting plan must be submitted to the court covering all key aspects of the child’s upbringing and everyday life. A judge will need to review and approve it before it can come into effect.

If parents cannot agree on the decision-making procedures, visitation rights or other matters, the judge will request that each parent submits a parenting plan individually for review. 

The court will then decide on which plan meets the bests interests of the child – or propose a different one.

Many factors contribute to a court’s decision on child custody (see the above question).

One of the factors that can be considered by the judge is the preferences of the child. However, much depends on the age of the child.

If a child is 14 years of age or older, the court must consider his or her preference for custody. This does not necessarily mean that the judge will abide by the child’s preference, though. The court retains the authority and the responsibility to rule in the child’s best interests.

If a child is under the age of 14, the judge will generally need to decide on the level of maturity of the child and whether he or she can make a sound judgment. Sometimes, a psychologist may be asked to appear to offer a professional opinion. 

There have been cases where a parent has “coached” a child on what to say to the court or exerted undue influence on the child by talking negatively about the other parent or offering bribes. 

If there is any evidence of this, the judge is unlikely to place much stock in the stated preferences of the child and will disregard the testimony.

In child custody cases, children are generally protected from having to appear in court and the inevitable stress that this may cause. Child testimony is normally provided behind closed doors with a judge and court reporter present to transcribe the interview.

Once a child custody order is finalized, it can be challenging to modify it. However, if there is a significant enough change in circumstances to warrant a modification, it can be done with the aid of an experienced lawyer.

You would need to file a motion with the appropriate court, which would then decide whether a modification is justified based on the evidence provided.

For instance, if your spouse was awarded sole custody of the children and you now want to pursue a modification for joint custody, you would need to prove that a “substantial and material change in circumstances” has occurred since the original custody order was made. 

Remember, the child’s best interests are the primary concern for the courts. As such, if the child’s interests are harmed by remaining in the sole custody of one parent, there may be reasonable grounds for joint custody to be awarded.

Typical examples where child custody orders are modified include when a parent moves interstate or overseas, or suffers an accident and is left disabled.