Whether you are snuggling your newborn, watching a little league game, or touring colleges with your high-schooler, you know the time you spend with your children is priceless. Being together brings you joy and helps shape your child’s very being, which is why it can be hard to accept the fact that a court order will soon dictate how much time you get to spend with your child. 

At Matteucci Family Law, Attorney Bob Matteucci helps divorcing couples in Albuquerque and across the state of New Mexico negotiate a parenting plan that fairly apportions physical custody of their child and addresses the issues that arise when co-parents must make decisions about how best to raise their child. 

What is Physical Custody? 

Physical custody, which is what most people think of when they hear the word “custody,” is the time you get to spend with your child. When you have physical custody of your child, you are responsible for providing a safe and loving home, meeting your child’s daily needs, and facilitating your child’s regular routines and activities.

There is, however, much more to being a parent than physical proximity to your child. Your right to have a say in your child’s religion, education, child care, recreational activities, and medical and dental care is also important. This decision-making authority is what is known as legal custody. 

Who Gets Physical Custody? 

Under New Mexico state law, every parent should have the opportunity to have “significant, well-defined periods of responsibility” for their child — aka physical custody. The law presumes that it is best for children to spend time with both parents, so judges typically award joint physical custody. 

But it is important to note that joint does not mean equal. Most children do not split the time they spend with each parent 50/50. One parent has primary physical custody while the other plays an important supporting role. Sometimes the periods a noncustodial parent is granted with a child are referred to as visitation. 

How the time a child spends with each parent is apportioned varies from family to family. The key consideration is what is in the best interests of your child. As you attempt to determine what is best, you may want to consider the same factors the courts do when they take up custody cases:

  • You and your former partner’s preferences;
  • Your child’s wishes;
  • Your child’s interaction and interrelationship with you, your former partner, any siblings, and any other person who may significantly affect your child’s best interest;
  • Your child’s adjustment to his or her home, school, and community; and
  • The mental and physical health of all individuals involved.

This is just a jumping-off point. Your family’s custody agreement must match the needs of your child. 

Obtaining Sole Physical Custody

Most parents share physical custody of their child with their child’s other parent. But there are circumstances where it is best for the child to spend 100% of their time with one parent and cut ties with the other. 

When a judge is asked to evaluate if joint custody is truly in a child’s best interests, he or she is directed to consider the factors from NM Stat § 40-4-9 mentioned above, as well as these factors from NM Stat § 40-4-9.1:

  • (1) whether the child has established a close relationship with each parent;
  • (2) whether each parent is capable of providing adequate care for the child throughout each period of responsibility, including arranging for the child’s care by others as needed;
  • (3) whether each parent is willing to accept all responsibilities of parenting, including a willingness to accept care of the child at specified times and to 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 such involvement and influence from both parents;
  • (5) whether each parent is able to allow the other to provide care without intrusion, that is, to respect the other’s parental rights and responsibilities and right to privacy;
  • (6) the suitability of a parenting plan for the implementation of joint custody, preferably, although not necessarily, one arrived at through parental agreement;
  • (7) geographic distance between the parents’ residences;
  • (8) willingness or ability of the parents to communicate, cooperate or agree on issues regarding the child’s needs; and
  • (9) whether a judicial adjudication has been made in a prior or the present proceeding that either parent or other person seeking custody has engaged in one or more acts of domestic abuse against the child, a parent of the child or other household member. If a determination is made that domestic abuse has occurred, the court shall set forth findings that the custody or visitation ordered by the court adequately protects the child, the abused parent or other household member.

In the Albuquerque area, addiction, abuse, and mental illness are unfortunately a factor in most cases where a parent is awarded sole custody. 

Limited Visitation 

Rather than cutting off a parent’s right to spend time with their child entirely, some family court judges will instead take steps to protect the children by significantly limiting parenting time, or requiring all visitations be supervised. 

In supervised or restricted visitation, a parent’s contact with their child is limited to a specific place with someone whose role is to monitor the visit and watch out for the well-being of the child. 

Physical Custody’s Relationship to Child Support 

In New Mexico, the amount of time you spend with your child has a significant impact on the amount of child support you pay or receive. 

The child support worksheets provided by the New Mexico Courts consider the amount of time each parent spends with and is responsible for the child. Travel and communication expenses may also be factored in if a child’s parents live a long distance away from one another. 

Modifying Child Custody Agreements 

What is in your child’s best interest may change over time. In a few years it may be necessary to modify your child custody agreement to reflect your family’s current circumstances. The courts will okay an updated plan if there has been a “material and substantial change” that necessitates a modification. This, of course, is a fact-specific question that will vary from one case to another.

Serving Families with Dignity & Compassion 

Whether you are figuring out where your child is going to sleep, who they celebrate Christmas with, or what extracurricular activities they can participate in, negotiating a physical custody agreement that fits your family is important. Attorney Bob Matteucci can help you craft a custody agreement and parenting plan that helps you and your co-parent ensure your child’s physical, emotional, and developmental needs are met. 
The Matteucci Family Law Firm helps families with child custody matters all across New Mexico including Albuquerque, Santa Fe, Los Lunas, and Rio Rancho. Please contact us today to schedule a meeting.