New Mexico law encourages parents to work out custody arrangements themselves without bringing the issue to court. If they cannot come to an agreement, courts make custody decisions based on what is in the "best interest" of the child. Typically, the courts favor joint custody, although sole custody may be granted under certain circumstances.
A parenting plan is a detailed, written agreement that sets out how divorcing parents will share legal and physical custody of their children. In New Mexico, the court must have a parenting plan before it can finalize a divorce. If parents cannot agree on a plan, the court typically will order mediation (a dispute resolution process). If mediation is unsuccessful, each parent must submit his or her own proposed plan for the court’s consideration.
New Mexico courts balance a series of factors when determining the best interest of a child. These factors include:
- The physical and mental health of the child and parents,
- The child’s connection to his or her current home, school, and community,
- The history of contact between the parents and the child,
- The strength of parental, sibling, and other familial relationships,
- The parents’ willingness and ability to raise the child,
- The distance between the parents’ residences,
- Evidence of child abuse or spousal abuse,
- The child’s reasonable preference (especially if 14 years old or older), and
- The parents’ wishes.
A parent’s gender is not considered as a factor. (In other words, the court must treat mothers and fathers equally.) In a custody dispute, a guardian ad litem may be assigned to advocate for the child and help assess his or her best interests. The court may also require a custody evaluation by a psychologist or other trained professional.
Once the parenting plan and divorce order are signed, they are filed with the court clerk. Both parents are then bound by the approved custody order and the court must approve any modification of the plan.
Child custody disputes can be emotionally charged and require a detailed understanding of the law. If you have concerns about custody and parenting time, it is important that you speak with an experienced child custody lawyer. A lawyer will help advocate for you and your child and work to secure the best possible parenting arrangement for your family.