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Understanding Child Custody Laws: A Guide for Parents

By Bob Matteucci

If you have business experience, you know the law of supply and demand is not the only regulation you need to be concerned about. There are a number of rules that govern everything from your outdoor signage to what posters you display in the employee break room. We’ve reached the point where running a business actually means running a complex compliance program. 

You can take this same paradigm and apply it to New Mexico’s child custody laws. Acting in the best interests of your child is the bedrock principle, but there are a number of laws that have been passed to explain what policymakers think this should mean. Going into court and asking the judge to approve a custody agreement you and your child’s other parent have cobbled together without considering what the state statutes have to say about parenting plans is not ideal. 

Below is a brief overview of some of the state laws that need to be considered when crafting a custody agreement and parenting plan. Attorney Bob Matteucci can help you strike a balance between what these laws require and what your family needs in order to move forward.

The Best Interests Standard

Child custody laws are driven by the “best interests of the child” standard. New Mexico has fleshed this out by encouraging judges to consider the following factors outlined in NM Stat § 40-4-9 when making decisions regarding child custody:

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

But this isn’t the only law that applies to child custody decisions. Under NM Stat § 40-4-9.1 (2021), couples should expect to share joint custody of their children with their former partner. 

What is Joint Custody?

Unless one parent is completely unfit for the job, there is a presumption in New Mexico state law that parents should share custody of their children. When joint custody is awarded:

  • (1) each parent shall have significant, well-defined periods of responsibility for the child;
  • (2) each parent shall have, and be allowed and expected to carry out, responsibility for the child’s financial, physical, emotional, and developmental needs during that parent’s periods of responsibility; and 
  • (3) the parents shall consult with each other on major decisions involving the child before implementing those decisions.

As you can see in the language above, there is no formula for calculating how much time a parent gets to spend with their child, just a direction that it should be “significant” and “well-defined.” 

As the majority of the language above hints, New Mexico’s child custody laws are more focused on parenting responsibilities than parenting time. The law recognizes that making decisions about a child’s care and making sure their emotional and developmental needs are met is an important part of the parenting process. So, when the law talks about “joint custody” it is often talking about what we refer to as “legal custody” rather than “physical custody.”

Physical custody is how much time you get to spend with your child. Legal custody is your right to have a say in your child’s religion, education, child care, recreational activities, and medical and dental care. These details are typically addressed in a document known as a parenting plan. 

What if Joint Custody Isn’t in a Child’s Best Interests? 

Both parents will typically share joint legal custody even if one parent has primary physical custody. But there are times when the court will give sole custody to one parent.

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.

As you can see, these are a wide range of factors, which give the courts some wiggle room to make decisions that they believe are truly in a child’s best interests.

Respecting the Parents’ Wishes 

If this is all as clear as mud, or you are concerned that some judge who has never met your children will be deciding their future, don’t panic! 

There is a provision in the statutes that says: “In any case in which the parents agree to a form of custody, the court should award custody consistent with the agreement unless the court determines that such agreement is not in the best interests of the child.” Basically, if you and your child’s other parent strike a reasonable child custody agreement, the court will okay it. 

This is good news for parents who are committed to co-parenting their children, and want to reach an amicable agreement regarding child custody. Most of the parents Attorney Bob Matteucci works with are able to come to a negotiated or mediated agreement that meets their family’s unique needs instead of allowing a judge to dictate how much time they get to spend with their kids. 

Serving Families with Dignity & Compassion

At Matteucci Family Law, we help parents in the Albuquerque area make sure they have their i’s dotted and t’s crossed so their preferred custody arrangement and parenting plans can be quickly approved by the courts. Contact the Matteucci Family Law Firm today to set up a meeting and discuss your case.

About the Author
Bob Matteucci is a board certified family law specialist, with a statewide practice in the area of divorce and family law.