Child Custody and Visitation

When parents of minor children divorce, the divorce decree will specify child custody arrangements.  This includes who has the primary responsibility for the care and raising of the children, and also with whom the children will live. In addition, the decree will set out how often and under what circumstances the other parent will visit with the children. Determining child custody is important when creating a marital settlement agreement in a divorce.

Child custody is decided according to the best interests of the child. If the child is fourteen or older, the court will consider where the child wants to live. If the child is under fourteen, the court looks at several factors, including:

  • The wishes of the child’s parents;
  • The wishes of the child;
  • The interaction and interrelationship of the child with parents, siblings, and any other person who may significantly affect the child’s best interest;
  • The child’s adjustment to home, school and community; and
  • The mental and physical health of all individuals involved.

In the majority of child custody cases, parents will share joint custody of their child or children, and they will be required to enter into a joint custody arrangement. Joint custody does not mean that each parent has equal financial responsibility for the child. It also does not necessarily mean that a child will live with each parent for an equal amount of time (although that could be a part of the arrangement). Instead, joint custody means that each parent will have significant, well-defined periods of responsibility for the child, during which that parent will have responsibility for the child’s financial, physical, emotional and developmental needs. Joint custody also means that neither parent will do anything that results in a major change in a child’s life without discussing the matter with the other parent, and unless both parents agree. Major changes, in this context, include things like moving out of the city or state, deciding what, if any, religion the child will practice, where the child goes to school, medical treatment, and enrollment in extra-curricular activities. Each parent has the right to see the child’s medical and educational records, and each parent has the right to attend activities in which the child participates.

New Mexico law assumes joint child custody is in the best interest of the children. That is what the court will order unless there is a good reason not to. If you don’t think joint custody is in the best interest of your child, you will have to prove that claim to the court. If there is a dispute about whether joint custody is in the best interests of the child, the court will consider these factors:

  • Has the child established a close relationship with each parent?
  • Is each parent capable of providing adequate care for the child, including making arrangements for child care by others as needed?
  • Is each parent willing to accept all responsibilities of parenting, including a willingness to accept care of the child and to relinquish care to the other parent at specified times?
  • Can the child can best maintain and strengthen a relationship with both parents through predictable, frequent contact?
  • Will the child’s development profit from involvement and influence from both parents?
  • Is each parent able to allow the other to provide care without interference?
  • Is there a suitable parenting plan for the implementation of joint custody? A plan arrived at through parental agreement is preferred.
  • What is the distance between the parents’ residences?
  • Are the parents willing or able to communicate, cooperate, or agree on issues regarding the child’s needs?
  • Has there been a court finding that either parent has engaged in domestic abuse against the child, a parent of the child, or another household member? If so, the court must make findings that the custody or visitation ordered adequately protects the child, the abused parent or other household member.

Note that the court will not automatically presume that one parent is more suitable because of his or her gender.

Physical custody—the parent with whom a child lives—will be awarded to one parent. If the parties agree to a “shared responsibility” arrangement, the courts will order that arrangement if it finds that it is in the best interest of the child. Shared responsibility means that the child spends at least 35% of the year in each parent’s home.

Depending on where you live, you may be required to go to court-sponsored mediation to work out your parenting plan. This plan will include important points like paying child support, and deciding the amount of time a child lives with each parent (“timesharing”).

It is always best that parents are able to come to an agreement about matters concerning their child. Courts seek to have parents work together, for the best interests of their child.

For further information, please refer to the following articles:

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