CANNON AIR FORCE BASE, N.M. -- There are two types of custody defined by law - legal custody and physical custody.
Legal custody can be either sole or joint, and concerns the decision-making power over where a child will live, religion, school and child care arrangements, medical, dental, and psychological treatment, and extra-curricular activities. Joint legal custody means the parents have equal decision-making power over those issues for their child.
Furthermore, it means the parents must work together to make the best decisions on those issues for their child. In the state of New Mexico, courts often order joint legal custody.
If a parent requests sole legal custody, that parent needs to provide reasons why joint legal custody is inappropriate. Even if one parent lives in a different city than the child and only spends time with the child during visitation, such as holidays or summer vacations, that parent could still be given joint legal custody.
Sole legal custody means that one parent is responsible for making the important decisions described above. Physical custody refers to the time the child spends with each parent. Physical custody arrangements can be quite different from family to family depending on what the judge thinks is best for the child.
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 an equal amount of time.
Sole physical custody is a somewhat uncommon arrangement where the child lives with one parent all of the time and the other parent only has limited visitation with child, which may be supervised if the judge finds that it is in the best interest of the child.
A child custody case starts when one or both parents file a petition in district court asking the court to decide custody. If the parents are married, the court will consider custody as part of the parents’ divorce or legal separation case. Generally, a New Mexico court only has the power to decide custody regarding children who have lived in New Mexico for at least six months.
The court will generally refer the parents to court-sponsored mediation to try to work out a plan for sharing time with their children. If they are able to agree on a plan with the help of mediation, they will present their plan to the court, which will often agree to the plan. If mediation is unsuccessful, the court will decide whether to give one parent primary custody or to give both parents joint custody.
Several factors are considered when deciding custody, including the mental and physical health of each parent and the child, the child’s adjustment to his or her home, school, and community, the relationship between the child and the parents and siblings, the parents’ desires, and the child’s wishes.
However, the ultimate goal of the court is to ensure that the custody arrangement is in the best interest of the child.
Once custody has been decided, the court will sign a binding custody order. If at some point in the future one parent wants to change the custody order, that parent may file a motion with the court to modify custody. In order to change the custody order, the parent must demonstrate that there has been a substantial change in the circumstances since the court entered the first custody order that would make it important to modify the custody arrangement.
If members need assistance regarding a custody case, please contact the legal office at 575-784-2211 to schedule an appointment with an attorney, or take advantage of walk-in legal assistance hours, which are the first and third Thursday of the month from 4:30 p.m. to 8 p.m., and the second and fourth Thursday of the month from 1 p.m. to 3 p.m.