Child Custody and Visitation in New Mexico Divorce

When a New Mexico divorce is finalized, the custody of the minor children is established and a parenting plan is adopted by the court.

The New Mexico custodial arrangement and parenting plan sets forth the responsibilities of each parent and provides a framework under which the parents will act in the raising and care of their children.  The standard that is followed in determining custody and visitation in New Mexico is the “best interest of the children.”

The best interest of the children might require a joint custody arrangement, where the parties co-parent the children and play substantially equal roles in the children’s lives, or a sole custody arrangement, where one parent is the custodial care giver and the other parent spends parenting time with the minor children.

The most important goal for parents to aspire to for purposes of custody is to be able to co-parent with each other, for it is one of the single most important factors in a child being able to more easily adjust after the divorce is final.

Because of this, New Mexico courts operate under the presumption that a joint custody arrangement is in the children’s best interest, and once this is established, the only way to modify that custodial arrangement is to show a “substantial and material change of circumstances affecting the welfare of the child, such that joint custody is no longer in the child’s best interest.” Jaramillo v. Jaramillo, 113 N.M. 57, 61, (1991).

New Mexico Child Custody Factors

New Mexico courts consider the following five factors in a custody decision:

1. the wishes of the parents;
2. the wishes of the child if the child is 14 years of age or older;
3. the relationship that the child has with the parents, siblings, and other people who affect the child’s best interest;
4. how the child has adjusted to his current custodial environment; and
5. the mental and physical health of the parents, child, and other involved individuals. See NMSA § 40-4-9.

In addition, nine other factors are considered when determining joint custody in New Mexico:

1. whether there is a close personal relationship that the child has established with one of the parents;
2. whether each parent is capable of providing adequate care for the child throughout each period of responsibility;
3. whether each parent  is willing to accept all responsibilities of parenting and will be able to accept care at specified times and relinquish care to the other parent at specified times;
4. whether the child can best maintain and strengthen a relationship with both parents through predictable, frequent contact and whether the child’s development will profit from the involvement and influence from both parents;
5. whether each parent can respect the other parent’s rights and responsibilities and the ability to spend time with the child without intrusion and without infringing privacy;
6. the suitability of a parenting plan for the implementation of joint custody;
7. geographic distance between each parent’s residence;
8. the willingness or ability of the parents to communicate and agree on issues regarding the child‘s needs; and
9. whether an adjudicated history of abuse has occurred at the hands of a parent against the child.  See NMSA Sec. 40-4-9.1 (B).

With regard to the determination and modification of the parenting time afforded a parent, the courts also tend to look at what is in the best interests of the children and often drawn upon the above factors relating to custody, but there is no specific list of items that the court is expected to refer to in making these determinations.

Can The Child Make The Custody Decision?

It is important to note that the wishes of the child are required to be considered if the child is age 14 years or older. It is one of many considerations that a court will make, and parents should take caution to not pressure the minor child to “make a choice between mom and dad.”

Keeping in mind that the child is the innocent bystander in the divorce will go a long way to helping the child to better adjust and cope with the new life and emotions that he or she will inevitably be faced with both during and after the divorce.

New Mexico Custody Lawyer

If you are a man facing divorce in New Mexico, you should contact a New Mexico custody lawyer to ensure your rights are protected. Cordell & Cordell Albuquerque divorce lawyers are licensed to practice throughout the state and are available for consultations should you seek additional information or possible legal representation. Please call 1-866-DADS-LAW to schedule an appointment.