How does a judge decide custody of a child?

In New Mexico the judge looks at what is best for the child.  The judge assumes it is best that both parents are involved and participate in the child’s life.  The judge looks at many things, including how the child has adjusted to his/her home, school, and community.  If the judge learns that one parent has an issue that makes it difficult to fully participate in the child’s life, the judge can consider giving sole custody to the other parent.  Such issues include: drug or alcohol addiction; criminal record; incarceration; and the health of the parent, spouse, or significant other of the parent.

What is legal custody?

Legal custody addresses both parents’ responsibilities for the child, including the child’s financial, physical, emotional and developmental needs.  It concerns each parent’s authority to make important decisions regarding their child on issues like where the child lives, health care, education, religion, and recreation. 

What is joint legal custody?

“Joint” legal custody means both parents have to work together to make the best decisions on these issues for their child.  Joint legal custody is what the courts in New Mexico most often order. 

What is sole legal custody?

“Sole” legal custody means that only one parent is responsible for most of the child’s needs.  It also means that only one parent will make the important decisions regarding the child.  It does NOT mean that the other parent cannot have contact or visitation with the child.

If a parent requests sole legal custody, that parent will need to give reasons why joint legal custody is not appropriate.  Even if one parent lives in a different town than the child and only sees the child during holidays or summer vacations, that parent could still be given joint custody.

What is physical custody?

Physical custody refers to the time the child spends with each parent.  Physical custody arrangements can be quite different from family to family depending upon what the judge thinks the children of the family need.  Physical custody arrangements can range from one parent having the child most of the time and the other parent only seldom having time with the child, to an arrangement where the parents each have the child half of the time.

If the parents both have some physical custody of the child, does that mean that both parents have to pay the same amount of child support?

No.  Child support is based on many different things, including how much each parent earns and the amount of time the child spends with each parent.  For more information regarding child support, see information sheet #382-Child Support.

What is sole physical custody?

Sole physical custody is a somewhat unusual arrangement where the child lives with one parent all the time and the other parent only has minimum visitation with the child.  It is also possible that the judge will decide that the best interest of the child requires that the visitation be supervised.

If sole legal custody is given to one parent, does that mean that the other parent can never see his/her child?

Not usually.  If a judge believes the child will be hurt or is in danger when in the care of the other parent, the judge can order supervised visitation.  Usually, the Court orders visitation or time-sharing for the non-custodial parent.  The circumstances have to be fairly extreme for a court to not let a parent see his/her child at all.

What is a parenting plan?

It is a court document that controls how certain issues regarding the child will be handled.  Every plan is different and depends on what agreements are made by the parties.  If the parents cannot reach an agreement, a judge will make the parenting decisions for the parents.  Most plans include statements that explain: (1) when the child will stay with each parent and for how long (often called periods of responsibility); (2) which holidays the child will stay with each parent; (3) when, how, and where the child will be transferred from one parent to the other; (4) how decisions about the child’s education, religion, and medical care will be made; (5) how to handle disagreements about the parenting plan; and (6) child support and any other issues that will help make joint custody work for both parents and the child.  All parenting plans need to be approved by a judge.  Parenting plans cannot be filed with the Court without first opening a case.

What happens if my child’s other parent is not doing what the parenting plan says?

Because a judge approves a parenting plan, it becomes a court order.  A parent who doesn’t follow the parenting plan could be violating a court order.  The non-violating parent could file a Motion to Enforce or Motion for Order to Show Cause with the court.  Blank forms for both Motions are available at some District Courts.  Once the issue is brought before a judge, the judge will decide whether the order has been violated and what the consequences will be for the violating parent.  NOTE:  Some parenting plans require both parties to attend mediation or family counseling for disagreements about the parenting plan before getting a judge involved.  If your parenting plan requires that, it is important to follow what was agreed or ordered.  It is best to send a letter to the other parent, formally requesting mediation.  That way you have proof to show to the court that you tried to get the other parent to attend mediation, and they refused.

If my child’s other parent doesn’t pay child support, does he/she still get to see our child?

Yes.  Child support and visitation are two separate issues and should not depend on each other.  If one parent doesn’t allow the other parent to visit with the child because child support hasn’t been paid, both parents have violated the judge’s orders.  The correct action is to file a Motion for Order to Show Cause against the parent who is not paying child support or against the parent who is refusing to allow the other parent access to the child.

Will the judge ask my child’s opinion about where he/she wants to live?

Judges will not make a child choose between two parents, even if the child wants to give his/her opinion. Also, judges will not consider what the child wants until the child is at least 14 years old.  Once a child is 14 years of age or older, the court may consider what the child wants but there is no guarantee that the court will agree with the child.  The main issue the judge has to look at, regardless of the child’s age, is what is best for the child.  If a parent has concerns that the child’s best interest is getting lost in the court process, that parent can petition the court to appoint a Guardian Ad Litem.  A Guardian Ad Litem is an attorney for the child, and the parents usually share the cost of paying the Guardian Ad Litem's fees.  This attorney advocates what is best for the child.  It’s possible that the Guardian Ad Litem will not agree that what the child wants is in his/her best interest.  This attorney should still tell the judge how the child feels.

I am not happy with the parenting plan.  How can it be changed?

If both parents are able to agree to a change, the agreement needs to be put in writing, signed by both parents, notarized, and filed with the court.  If both parents can’t agree, a judge usually will not change a parenting plan unless there has been a “material change in circumstances.”  That means that something important has changed in your life, your child’s life, or the other parent’s life.  Even if a “material change” has happened, the judge will not make any changes to the parenting plan unless the judge believes it will be in your child’s best interest.  The type of changes that a judge will look at before deciding to modify a parenting plan include (but are not limited to) marriage, moving to another town, or major illness.  Minor changes in a person’s life, such as minor work changes, moving a short distance, or lack of convenience usually don’t make it necessary to change a parenting plan.

 

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