Read the transcript of this video below.
In New Mexico, child custody is actually determined in two areas: legal custody and physical custody. Legal custody refers to the right and responsibility parents have to make decisions for their children and who is allowed to make those decisions. Physical custody speaks to whether or not the child lives primarily with one parent or with both parents, as well as how they share time with and responsibility for the child. The determining factor regarding what form of legal custody and/or physical custody should be in place is the best interest of the child.
What is legal custody?
Legal custody is broken down into joint legal custody and sole legal custody. It is presumed in New Mexico that joint legal custody is in the best interest of the child or children of a marriage or relationship.
Joint legal custody means that in the areas of religion, education, extracurricular activities, health care, and residence, the child has a defined “status quo.” If one parent, or even the child in some cases, wants to make changes in any of these areas, the parents are to discuss the change and attempt to reach an agreement. No change is to be made until the parents have agreed on it. The goal is that all major decisions in a child’s life are made together by their parents and that there are not unilateral decisions made by one parent or the other regarding the child.
With sole legal custody, or even modified joint legal custody, decisions are made by one parent or divided between the parents. For example, in true sole legal custody, one parent would be allowed to make decisions as to religion, education, extracurricular activities, health care, and residence without consulting with or getting the approval of the other parent; however, this is fairly unusual in New Mexico. It typically occurs when one parent is unavailable to make those decisions with the other parent, when there is an extreme history of inability to make decisions together, or sometimes in cases of domestic violence.
In modified sole legal custody or modified joint legal custody, a court may order or the parents may agree that it is best if they assign decision making about certain areas to one parent or the other. For example, if one parent is unable to be physically present to assist in daily decisions, the other parent may be responsible for making decisions about health care, education, and extracurricular activities; however, they might still need to make joint decisions about residence and religion.
What is physical custody?
Physical custody generally means where the child resides and how they share time with each of their parents. In more traditional timesharing plans, there is a primary care parent with whom the child spends a majority of their time. This may apply in cases with very young children. Situations where a child shares time roughly equally with both parents are often referred to as shared physical custody.
At Little, Gilman-Tepper & Batley, we view each custody case as unique, because each child and each family situation really is special. We would be happy to meet with you to further discuss your custody matter.
New Mexico Matrimonial and Family Law Attorney Roberta S. Batley is a Board Recognized Specialist in Divorce and Family Law and a Fellow of the American Academy of Matrimonial Lawyers. Trained as a Collaborative attorney, she focuses her practice on representing business owners, their spouses, and other high-asset parties.